Wakilii

Uganda v Hajji Namunyu (RIP) and 5 Others

Supreme Court · [2024] UGSC 1 · 2024 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal by the Director of Public Prosecutions to the Supreme Court for a declaratory judgment under s.5 of the Judicature Act, following the Court of Appeal's acquittal of the respondents
Decision
Appeal allowed; the Court of Appeal's orders nullified and the matter remitted to a differently constituted panel of the Court of Appeal for re-hearing on the merits.

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court allowed the DPP's appeal. Although the trial court did not record the respondents' plea, the record as a whole—their own appellate submissions, counsel's concession on three ingredients, the alibi defence and their full participation—showed they pleaded not guilty; the Court of Appeal therefore erred in nullifying the conviction and sentence for failure to take plea, an omission curable under Article 126(2)(e) of the Constitution, s.34(1) of the Criminal Procedure Code Act and s.139 of the Trial on Indictments Act. The Court of Appeal also erred by deciding on a ground outside the memorandum of appeal without hearing the parties, breaching the right to a fair hearing. Its orders were nullified and a re-hearing before a differently constituted panel ordered.

Facts

The respondents were charged with the murder of Sadat Shaban Malingha, allegedly committed with malice aforethought on 24 November 2012 at Hamila Village, Buhabeba Parish, Busolwe Sub-county, Butaleja District, contrary to sections 188 and 189 of the Penal Code Act. They were tried at the High Court at Mbale and, on conclusion of a full trial, all were convicted of murder. Four respondents were each sentenced to 37 years and 3 months' imprisonment and one to 12 years and 3 months; one accused had died on remand before sentencing. On appeal to the Court of Appeal—by which time two further respondents had died—that court found that no plea had been taken, quashed the proceedings, convictions and sentences, declined a re-trial, ordered a stay of prosecution and directed the respondents' immediate release. The Director of Public Prosecutions, aggrieved by the acquittal, appealed to the Supreme Court for a declaratory judgment.

Issues

  1. Whether the Court of Appeal erred in law in holding that the conviction and sentence of the respondents were a nullity on the ground that they had not taken plea at trial.
  2. Whether the Court of Appeal erred in law by deciding the appeal on the issue of failure to take plea, a ground not raised in the memorandum of appeal, without according the parties an opportunity to be heard.

Orders

  • Appeal allowed on both grounds.
  • The decisions and orders issued by the Court of Appeal are nullified.
  • A re-hearing of the appeal is ordered before a different panel of the Court of Appeal, to determine the appeal on its merits.
  • The file is remitted to the Court of Appeal.

Key headnotes

Criminal Procedure — Plea Taking — Failure to Record Plea Not a Nullity Where Record Shows Plea Was Taken
Where the record of proceedings, considered as a whole, shows that an accused person pleaded to the indictment, understood the charge and fully participated in the trial, the absence of a verbatim recording of the plea does not render the trial a nullity.
Criminal Procedure — Curing Irregularities — Article 126(2)(e) and Statutory Cure Provisions
A procedural omission such as the failure to record a plea, which occasions no substantive miscarriage of justice, is curable under Article 126(2)(e) of the Constitution, s.34(1) of the Criminal Procedure Code Act and s.139 of the Trial on Indictments Act.
Fair Hearing — Appellate Procedure — Ground Raised Suo Motu or Outside the Memorandum of Appeal
An appellate court may not decide an appeal on a ground not raised in the memorandum of appeal, or which the court raises of its own motion, without first according the parties an opportunity to be heard on that ground.
Right to Fair Hearing — Equal Application to All Parties — Non-Derogability
The right to a fair hearing under Article 28 of the Constitution applies equally to all parties, including the prosecution and victims of crime, and is non-derogable under Article 44(c) of the Constitution.
Supreme Court — Inherent Powers — Declaratory Appeal Under s.5 Judicature Act
Where a Court of Appeal decision is reached through a hearing that was not fair, the Supreme Court may invoke its inherent powers under Rules 2(2) and 31 of its Rules to nullify those orders and order a re-hearing, notwithstanding that the appeal was brought only for a declaratory judgment under s.5 of the Judicature Act.

Legislation cited (28)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Trial on Indictments Act Cap 23 s.60
  • Trial on Indictments Act s.66
  • Trial on Indictments Act s.67
  • Trial on Indictments Act s.71
  • Trial on Indictments Act s.72
  • Trial on Indictments Act s.73
  • Trial on Indictments Act s.139
  • Trial on Indictments Act s.139(1)
  • Constitution of the Republic of Uganda 1995 art.126(2)(e)
  • Constitution of the Republic of Uganda 1995 art.28
  • Constitution of the Republic of Uganda 1995 art.28(1)
  • Constitution of the Republic of Uganda 1995 art.28(3)(b)
  • Constitution of the Republic of Uganda 1995 art.44(c)
  • Criminal Procedure Code Act Cap 116 s.34(1)
  • Judicature Act Cap 13 s.5(1)(c)
  • Judicature Act s.5(2)
  • Judicature Act s.5(c)
  • Judicature Act s.11
  • Judicature (Supreme Court) Rules r.23(1)
  • Judicature (Supreme Court Rules) Directions r.30(1)
  • Judicature (Supreme Court) Rules r.31
  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.32(1)
  • Judicature (Court of Appeal Rules) Directions r.30
  • Judicature (Court of Appeal Rules) Directions r.30(1)(a)
  • Judicature (Court of Appeal Rules) Directions r.102(c)

Cases cited (7)

  • Guster Nsubuga and Another v Uganda (Criminal Appeal No. 92 of 2018)
  • Rev. Father Santos Wapokra v Uganda (Criminal Appeal No. 204 of 2012)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 2007)
  • Adan v Republic (1973) EA 443
  • M/S Fangmin v Belex Tours & Travels Ltd (Civil Appeal No. 6 of 2013)
  • Kwamusi Jacob v Uganda (Criminal Appeal No. 22 of 2014)
  • Kato Kajubi Godfrey v Uganda (Criminal Appeal No. 20 of 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.