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Kitutu Mary Goretti Kimono v Attorney General (Criminal Miscellaneous Application 76 of 2023)

High Court · [2024] UGHCACD 1 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of criminal proceedings pending appeal to the Court of Appeal
Decision
Criminal proceedings stayed pending appeal

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Holding

The High Court has jurisdiction to stay criminal proceedings pending appeal to the Court of Appeal where a human rights violation is alleged. Under the Human Rights (Enforcement) Act 2019, allegations of violations of non-derogable rights must first be resolved before criminal trial proceeds. A stay of proceedings was granted to allow the Court of Appeal to pronounce on the legality of the criminal proceedings, as proceeding with trial would be futile if the appellate court subsequently found a violation of non-derogable rights.

Outcome

Criminal proceedings stayed pending appeal

Facts

The applicant, Minister for Karamoja Affairs, was charged in the High Court Anti-Corruption Division with loss of public property and conspiracy to defraud, relating to alleged diversion of iron sheets intended for the Karamoja Community Empowerment Program. After committal, she filed an application alleging violation of her non-derogable due process rights and seeking nullification of the criminal proceedings. The High Court dismissed that application on 28 November 2023. The applicant filed an appeal to the Court of Appeal (Civil Appeal No. 1525 of 2023) and sought a stay of the criminal proceedings pending determination of that appeal. The respondent opposed the application, arguing that civil matters cannot bar criminal prosecution, that no exceptional circumstances existed, and that the matter was of public interest. The applicant relied on provisions of the Human Rights (Enforcement) Act 2019 requiring stays when human rights violations are alleged and on appeal.

Issues

  1. Whether the High Court has jurisdiction to grant a stay of criminal proceedings pending appeal to the Court of Appeal under the Human Rights (Enforcement) Act 2019.
  2. Whether the criminal proceedings should be stayed pending the determination of the appeal challenging the dismissal of the applicant's human rights application.
  3. Whether the appeal raises serious questions of law concerning violation of non-derogable rights that warrant a stay of proceedings.

Orders

  • Application granted.
  • Proceedings in Criminal Case No. 5 of 2023 stayed pending the decision of the Court of Appeal in Civil Appeal No. 1525 of 2023.

Rules and key headnotes

Human Rights — Stay of Proceedings — Jurisdiction of High Court and Court of Appeal
Where the High Court and the Court of Appeal have concurrent jurisdiction over a matter, the matter ought to be brought in the High Court first.
Human Rights — Enforcement — Stay of Criminal Proceedings Pending Resolution of Human Rights Violation
Under Section 8(1) of the Human Rights (Enforcement) Act 2019, where a question arises during proceedings in the High Court as to the violation of a fundamental right or freedom, the presiding judge shall immediately stay the proceedings and determine the question raised. This mandatory stay applies both at trial and when the matter is on appeal.
Human Rights — Non-Derogable Rights — Effect of Finding Violation of Right to Fair Trial
Under Section 11(2) of the Human Rights (Enforcement) Act 2019, where a competent court makes a finding that an accused person's non-derogable rights and freedoms have been infringed, the judge or magistrate shall declare the trial a nullity and acquit the accused person. This provision necessitates staying criminal proceedings pending resolution of allegations of violations of the right to a fair trial.
Human Rights — Appeals — Priority and Timeline for Determination
Under Section 16(2) of the Human Rights (Enforcement) Act 2019, a court hearing an appeal relating to violation of fundamental human rights and freedoms shall proceed to hear and determine the appeal within three months from the date of filing and may for that purpose suspend any other matter pending before it. This safeguard curtails delay and prejudice to prosecution or victims during a stay of criminal proceedings.
Criminal Procedure — Stay of Proceedings — Test for Grant of Stay
While stay of criminal proceedings is a grave judicial action made sparingly and only in exceptional circumstances under general principles, the Human Rights (Enforcement) Act 2019 creates a different structure giving precedence to matters of violation of non-derogable rights, requiring questions of human rights violations to be resolved first before criminal trial proceeds.
Human Rights — Enforcement — Purpose of Human Rights (Enforcement) Act 2019
The Human Rights (Enforcement) Act 2019 changed the landscape of criminal proceedings by requiring courts presiding over criminal cases to be sensitive to the full realization of the rights of accused persons through the processes of the criminal justice chain including arrest, detention, interrogation, investigations, and other pre-trial and prosecutorial actions. It is the duty of courts to enforce fundamental rights and freedoms; the law does not permit courts to turn a blind eye to violations.
Criminal Procedure — Stay of Proceedings — Futility of Proceeding with Trial Pending Appeal on Human Rights Violation
It is futile and a costly exercise for the court to proceed with a criminal trial, for the prosecution to call witnesses and lead evidence, and for the accused to defend themselves, only for the Court of Appeal to subsequently decide that non-derogable rights were violated and the proceedings are a nullity.

Legislation cited (12)

Cases cited (17)

  • Aids Health Foundation v Dr Stephen Mirembe Kizito (Civil Application No. 146 of 2014)
  • Augustine Mukiibi v Hosanna Evangelistic Mission and 4 Others (Civil Application No. 294 of 2017)
  • Paul Wanyoto v Sgt Oumo and Attorney General (Miscellaneous Application No. 2 of 2021)
  • Hon Sekikubo and Others v Attorney General (Constitutional Application No. 4 of 2014)
  • Sara Kulata Basangwa v IGG (Miscellaneous Application No. 465 of 2011)
  • Zedekia Kato v Uganda (Criminal Appeal No. 100 of 2019)
  • Dr Stella Nyanzi v Uganda (Criminal Appeal No. 79 of 2019)
  • Dr Tiberius Muhebwa v Uganda (Constitutional Petition No. 9 of 2012)
  • Wanyoto v Sgt Ouma and Another (Civil Appeal No. 91 of 2021)
  • Albanus Mwasia Mutua v Republic [2006] eKLR
  • Goddy Mwakio and Another v Republic [2011] eKLR
  • Kenya Wildlife Services Versus James Mutembei (2019)
  • Global Tours and Travels Limited, Nairobi HC Winding Up Cause No 43 of 2000
  • Wilson v Church (1879) 4 Ch D 454
  • Global Capital Save 2004 Ltd and Another v Alice Okiror and Another (Miscellaneous Application No. 484 of 2012)
  • Omar Awadh Omar and 10 Others v Attorney General (Constitutional Petitions No. 55 and 56 of 2011)
  • Paul Wanyoto Mugoya v Sgt Oumo Joshua and Attorney General (Miscellaneous Application No. 2 of 2021)

Full judgment

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Kitutu Mary Goretti Kimono v Attorney General (Criminal Miscellaneous Application 76 of 2023) [2024] UGHCACD 1 (7 February 2024)
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.