Wakilii

Rtd Major General Matayo .B Kyaligonza v Uganda (HCT-14-CR-CV-0002-2019)

High Court · [2019] UGHCCRD 41 · 2019 Application Dismissed with Modifications AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal revision application seeking to set aside a Chief Magistrate's warrant of arrest and to vacate orders requiring the applicants to appear before the Chief Magistrate's Court on grounds of double jeopardy, where applicants were subject to concurrent proceedings before both the Chief Magistrate's Court and the UPDF Unit Disciplinary Committee
Decision
Application dismissed with modifications — warrant of arrest against first applicant reinstated; warrants against second and third applicants cancelled and replaced with production warrants; military proceedings to be stayed pending determination of the Chief Magistrate's Court case

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Holding

The High Court held that the principle of double jeopardy applies to the second court, not the court of first instance. Where the Chief Magistrate's Court first charged the accused on 18 March 2019 and the UPDF Unit Disciplinary Committee charged two of them on 16 April 2019, the double jeopardy principle should be raised in the military court. The first applicant had not been charged before the military tribunal and could not plead double jeopardy. The warrant of arrest against the first applicant was properly issued and reinstated; warrants against the second and third applicants were cancelled and replaced with production warrants. The application was dismissed with modifications.

Outcome

Application dismissed with modifications — warrant of arrest against first applicant reinstated; warrants against second and third applicants cancelled and replaced with production warrants; military proceedings to be stayed pending determination of the Chief Magistrate's Court case

Facts

On 24 February 2019, three military personnel were alleged to have assaulted two police officers at Seeta Trading Centre in Mukono District. On 18 March 2019, the applicants were charged before the Chief Magistrate's Court of Mukono with assault causing actual bodily harm, common assault, and obstructing a police officer. Criminal summons were issued for 10 April 2019. The first applicant was a retired Major General serving as Ambassador in Burundi; the second and third applicants were serving soldiers. The applicants did not appear on 10 April 2019 but were represented by counsel who informed the court that the second and third applicants were in military custody. The case was adjourned to 29 April 2019. On 16 April 2019, the second and third applicants were charged before the UPDF Unit Disciplinary Committee of Military Police at Makindye for common assault under the Penal Code Act. On 29 April and 20 May 2019, the applicants again failed to appear before the Chief Magistrate's Court. Their counsel raised a preliminary objection on the ground of double jeopardy, arguing that the second and third applicants were already being tried before the military tribunal on the same facts. The Chief Magistrate rejected the objection and issued warrants of arrest against all three applicants. The applicants sought revision of that ruling in the High Court.

Issues

  1. Whether the finding that the applicants who are already appearing before the Unit Disciplinary Committee of the Military Police should also appear before the Chief Magistrate's Court and be tried on the same facts amounted to material illegality, irregularity, and impropriety (whether the principle of double jeopardy applied).
  2. Whether the applicants should appear before the Chief Magistrate's Court for plea taking.
  3. Whether the warrant of arrest issued by the Chief Magistrate should be vacated.

Orders

  • The Rule or Principle of Double Jeopardy applies to the second court not the court of first instance; the applicants should appear before the Chief Magistrate's Court of Mukono to answer charges against them.
  • Proceedings in the Military Court of Makindye in respect of A2 and A3 should be stayed or withdrawn pending determination of Criminal Case No. 0312 of 2019.
  • The Chief Magistrate should issue a production warrant for A2 and A3 to Makindye Military Prison.
  • The warrant of arrest against A2 and A3 is cancelled.
  • The warrant of arrest against Rtd Major General Matayo B Kyaligonza is reinstated to compel him to appear for plea before the Chief Magistrate's Court.
  • The application is dismissed with modifications in respect of A2 and A3.

Rules and key headnotes

Double Jeopardy — Concurrent Criminal Proceedings — Principle Applies to Second Court
The principle of double jeopardy, which prohibits trial of a person more than once on the same facts or actus reus, applies to concurrent criminal proceedings arising from the same facts. However, the principle must be raised in the second court that instituted proceedings, not in the court of first instance.
Double Jeopardy — Determination of Which Court Is First Instance
Where two courts have concurrent jurisdiction to try the same subject matter, the order of preference depends on which court first instituted criminal proceedings by registration of a charge sheet and issuance of summons or warrant. Criminal proceedings are instituted when charges are laid before a magistrate and summons or warrants are issued, not merely when an accused is arrested.
Double Jeopardy — Not a Plea or Procedural Defence — A Principle of Law
Double jeopardy is not one of the defences available to an accused under section 124(5) of the Magistrates Courts Act, nor is it a procedural defence. It is a principle of law available to an accused to avoid being tried twice for the same or similar charges arising out of similar facts following an acquittal or conviction, or having concurrent proceedings for the same or similar charges arising out of similar facts.
Plea Taking — Personal Appearance Required — Legal Representative Cannot Enter Plea
In criminal proceedings, plea taking is personal and cannot be delegated to a legal representative. An accused person must appear in person before the court to enter a plea. The only exception arises under Article 28(5) of the Constitution where the accused so conducts himself as to render the continuance of the proceedings in his presence impracticable.
Warrants of Arrest — Production Warrant for Accused Already in Custody
Where an accused person is already in lawful custody elsewhere (such as military detention), the proper procedure is for the court to issue a production warrant requiring the custodian to produce the accused before the court, not a warrant of arrest. A warrant of arrest should only be issued after the court is satisfied that the accused is not in custody but at large and has refused to attend court.
Military Tribunals — Jurisdiction Concurrent with Civil Courts
Under sections 179(1)(a) and 195(3) of the UPDF Act 2005, a Unit Disciplinary Committee has powers to try any person subject to military law for any non-capital offence under the Act, including offences under the Penal Code Act. This creates concurrent jurisdiction with civilian courts. However, concurrent jurisdiction does not offer choices to military officers to select which court they wish to be tried in; where civilian court proceedings are instituted first, the military tribunal should stay its proceedings.

Legislation cited (18)

Cases cited (2)

  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)

Full judgment

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

Rtd Major General Matayo .B Kyaligonza v Uganda (HCT-14-CR-CV-0002-2019) [2019] UGHCCRD 41 (20 August 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.