Wakilii

Kiwanuka v Uganda (Criminal Appeal No. 378 of 2017)

Court of Appeal · [2019] UGCA 206 · 2019 Appeal Allowed — Retrial Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal against conviction and sentence from the High Court for murder and aggravated robbery
Decision
Trial declared a nullity; retrial ordered before another judge in the next criminal session

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal on the procedural ground concerning the assessors. Section 69 of the Trial on Indictments Act requires that where one assessor is absent the trial proceeds with the remaining assessor; it does not permit substitution of a new assessor mid-trial. The trial judge's replacement of an absent assessor after the prosecution had closed its case, together with summing up to assessors before submissions were filed and reliance on written submissions, were grave procedural irregularities that could not be cured. These rendered the trial a nullity and a mistrial. The Court did not resolve the remaining grounds and ordered a retrial before another judge.

Outcome

Trial declared a nullity; retrial ordered before another judge in the next criminal session

Facts

The deceased, Kato Isaac, was a manager of WADI (U) Ltd in Mukono dealing in airtime and mobile money, whose shop neighboured the appellant's UTL shop. On 10 December 2014 the deceased was kidnapped. The following day staff found his shop locked and his safe broken into, with cash of 7.4 million and airtime worth 7.5 million missing, along with a black bag he used. On 19 December 2014 his decomposing body was discovered in the SCOUL plantation. The appellant was arrested in December 2014 after an informer alleged he had murdered the deceased to obtain money to settle a loan. A search of the appellant's home recovered airtime, a black bag, rubber bands and cash deposit slips said to be in the deceased's handwriting. The prosecution case rested on circumstantial evidence and the doctrine of recent possession. During trial, after the prosecution closed its case, one of two assessors became unavailable and was replaced by a new assessor before the defence case opened.

Issues

  1. Whether the trial judge erred in replacing an assessor in the middle of the trial contrary to the Trial on Indictments Act.
  2. Whether summing up to assessors before submissions and reliance on written submissions amounted to fatal procedural irregularities.
  3. Whether the conviction was properly founded on circumstantial evidence and the doctrine of recent possession.

Orders

  • Appeal allowed.
  • Trial declared a nullity and a mistrial.
  • Retrial of the appellant ordered in the next criminal session before another Judge.

Rules and key headnotes

Criminal Procedure — Assessors — Absence under Trial on Indictments Act s.69 — No power to substitute mid-trial
Where, before verdict, an assessor is prevented from attending or absents himself, the trial must proceed with the aid of the remaining assessor; the Trial on Indictments Act provides no power to introduce a fresh assessor mid-trial, and doing so is contrary to law.
Criminal Procedure — Procedural Irregularity — Mistrial and Nullity
Improper substitution of an assessor after the close of the prosecution case, together with summing up to assessors before submissions and reliance on written submissions, constitutes grave procedural irregularity that cannot be cured and renders the trial a nullity and a mistrial.
Criminal Procedure — First Appeal — Duty of First Appellate Court
A first appellate court has a duty to re-evaluate the evidence as a whole, weigh conflicting evidence and reach its own conclusion, bearing in mind that it did not see the witnesses testify.

Legislation cited (8)

Cases cited (6)

  • Mulindwa James v Uganda (Supreme Court Criminal Appeal No. 23 of 2014)
  • Simon Musoke v R [1958] EA 715
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Pandya v R [1957] EA 336
  • Kifamunte v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Byaruhanga Fodori v Uganda (Court of Appeal Criminal Appeal No. 24 of 1999)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kiwanuka Vs Uganda (Criminal Appeal No. 378 of 2017) [2019] UGCA 206 (25 July 2019)
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.