Wakilii

Ogwang Patrick Osinde and Others v Uganda (Criminal Appeals No. 19 and 60 of 2019)

Supreme Court · [2025] UGSC 48 · 2025 Matter Remitted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeals to the Supreme Court (with a respondent's cross-appeal) from a Court of Appeal decision quashing convictions and ordering a retrial
Decision
Court of Appeal decision set aside; appeals remitted to a newly constituted Court of Appeal panel for rehearing and reappraisal of the evidence

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

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 held that an assessor who absents himself from part of a High Court trial ceases to be an assessor and cannot lawfully resume his seat; once an assessor is absent the trial judge must proceed with the remaining assessor under section 69(1) of the Trial on Indictments Act, and a returning assessor's participation renders the court improperly constituted. The Court of Appeal correctly found the assessor's return irregular but erred by ordering a retrial without reappraising the evidence and the circumstances to determine whether a retrial was warranted. The Supreme Court set aside the Court of Appeal's decision and ordered the appeals reheard by a freshly constituted Court of Appeal panel.

Facts

The three appellants were each indicted in the High Court on counts of murder, aggravated robbery and attempted murder arising from a 6 January 2014 incident at Ireda Lumumba, Lira District, where assailants shot and killed Akidi Susan Eryau, stole UGX 65,000,000 in her possession, and shot and injured her son Enamu Jonathan. The trial judge found the appellants were among the attackers and convicted them on all counts, imposing concurrent sentences of 65, 50 and 35 years. At trial, one of the two assessors was absent during the hearing of one witness (DW12 Ocepa Geoffrey) but later resumed and participated in delivering the joint assessors' opinion advising conviction. On appeal, the Court of Appeal held the assessor's resumed participation was a fundamental irregularity contrary to section 69(1) of the Trial on Indictments Act that occasioned a miscarriage of justice, quashed the convictions and ordered a retrial. The appellants and the respondent each appealed to the Supreme Court.

Issues

  1. Whether the Court of Appeal erred in ordering a retrial without first reappraising the evidence on record.
  2. Whether the trial Court's decision to allow an assessor who had been absent during a previous hearing to resume participation in the trial was a fundamental irregularity that occasioned a miscarriage of justice to the appellants.
  3. Whether the Court of Appeal's order for a retrial was justified in the circumstances of this case.

Orders

  • The decision of the Court of Appeal in Criminal Appeals Nos. 55, 62 and 67 of 2016 dated 2nd May, 2019 is set aside.
  • The case files for Court of Appeal Criminal Appeals Nos. 55, 62 and 67 of 2016 shall immediately be returned to the Court of Appeal, which shall constitute a new panel to hear and determine the appeals in accordance with this judgment.

Key headnotes

Criminal Procedure — Trial with Assessors — Effect of an Assessor's Absence under Section 69(1) Trial on Indictments Act
Where an assessor is, for sufficient cause, prevented from attending or absents himself during a trial before the High Court, the trial must proceed with the aid of the remaining assessor; the absent assessor thereupon ceases to be an assessor and cannot lawfully return and resume his seat.
Criminal Procedure — Trial with Assessors — Constitution of the Court Where a Returning Assessor Participates
A court is not properly constituted, and is not competent to try the accused, where an assessor who did not hear all of the evidence participates in the verdict; such a defect goes to the competence of the court and is not a mere curable irregularity, since an assessor must hear all the evidence regardless of how long he was absent or whose witnesses were heard in his absence.
Criminal Procedure — Retrial — Discretion and Duty to Reappraise Before Ordering a Retrial
Even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, a retrial does not necessarily follow; an appellate court must evaluate the particular facts and circumstances of the case, and a retrial should be ordered only where the interests of justice require it and not where it is likely to cause injustice to the accused. An appellate court errs in ordering a retrial without first reappraising the evidence and circumstances to determine whether a retrial is warranted.
Criminal Procedure — Second Appeals — Limits of the Supreme Court's Jurisdiction to Re-evaluate Evidence
On a second appeal the Supreme Court ordinarily considers only points of law and will not, save in exceptional cases, reappraise the evidence; re-evaluation of the facts is the prerogative of the first appellate court, and where that court has failed in that duty the Supreme Court may order a rehearing of the appeal before the Court of Appeal rather than undertake the reappraisal itself.

Legislation cited (13)

  • Penal Code Act, Cap. 120 s.188
  • Penal Code Act, Cap. 120 s.189
  • Penal Code Act, Cap. 120 s.285
  • Penal Code Act, Cap. 120 s.286(2)
  • Penal Code Act, Cap. 120 s.204
  • Trial on Indictments Act, Cap. 23 s.3(1)
  • Trial on Indictments Act, Cap. 23 s.67
  • Trial on Indictments Act, Cap. 23 s.68(1)
  • Trial on Indictments Act, Cap. 23 s.69(1)
  • Trial on Indictments Act, Cap. 23 s.82(2)
  • Trial on Indictments Act, Cap. 23 s.139(1)
  • Judicature (Court of Appeal Rules) Directions, S.I 13-10 r.30(1)(a)
  • Judicature (Supreme Court Rules) Directions, S.I 13-11 r.31

Cases cited (18)

  • Abdu Komakech v Uganda (Criminal Appeal No. 1 of 1998)
  • [1990] UGSC 10
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1998)
  • Uganda v Nsubuga and Another (Criminal Appeal No. 92 of 2018)
  • Kampala City Council Authority v Kabandize and 10 Others (Civil Appeal No. 13 of 2014)
  • Masembe v Sugar Corporation of Uganda Ltd [2002] 2 EA 434
  • Komakech v Uganda (Criminal Appeal No. 1 of 1998)
  • Alenyo v Uganda (Criminal Appeal No. 8 of 2007)
  • Mpagi Godfrey v Uganda [2017] UGSC 35
  • Zoreka and Another v Uganda (1986-1989) 1 EA 603
  • Okwonga Anthony v Uganda [2002] UGSC 8
  • Kashaija and 2 Others v Uganda (1977) HCB 50
  • Republic v Assa Singh (1937) 4 EACA 41
  • Kabui v Reg (1954) 21 EACA 260
  • Fatehali Manji v Republic [1966] EA 343
  • Mukiibi Emmanuel v Uganda (Criminal Appeal No. 43 of 1996)
  • Abdu Komakech v Uganda [1992-93] HCB 21
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.