Wakilii

Sserunkuma v Uganda (Criminal Appeal 9 of 2019)

High Court · [2023] UGHCCRD 62 · 2023 Retrial Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Chief Magistrate's Court conviction and sentence
Decision
Matter remitted for retrial before the Chief Magistrate's Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where the entire lower court record in a criminal appeal is irretrievably lost and cannot be reconstructed, the appellate court has discretion to order a retrial. The court must exercise this jurisdiction judiciously, balancing the seriousness of the offence, the time already served by the appellant, the period elapsed since trial, and the interests of justice to both the appellant and society. In this case, despite the appellant having served four years of a fifteen-year sentence for simple defilement, the court ordered a retrial.

Outcome

Matter remitted for retrial before the Chief Magistrate's Court

Facts

The appellant was convicted and sentenced to fifteen years imprisonment for simple defilement by Nabweru Chief Magistrate's Court on 18 January 2019. He filed an appeal on 23 January 2019 against both conviction and sentence. State Brief counsel was assigned and applied for the lower court record. The appeal was cause-listed multiple times from November 2021. After prolonged correspondence between the High Court Registrar and the Chief Magistrate of Nabweru, it was confirmed on 14 July 2022 that all efforts to trace the lower court record had proved futile. By the time of this ruling, the appellant had been in detention for close to six years, having been first remanded on 19 May 2017.

Issues

  1. Whether the court should order a retrial where the entire lower court record has been irretrievably lost.
  2. Whether the court can proceed with an appeal in the absence of the trial record.
  3. Whether ordering a retrial or dismissing the appeal would best serve the interests of justice in circumstances where the appellant has already served four years of a fifteen-year sentence and the record cannot be reconstructed.

Orders

  • A retrial is ordered.

Rules and key headnotes

Appeals — Missing Record — Powers of Appellate Court
Where a record of trial is incomplete by reason of parts having been omitted or gone missing, or where the entire record goes missing, the appellate court has the power to either order a retrial or reconstruction of the record by the trial court.
Appeals — Missing Record — Proceeding with Partial Record
Where reconstruction of the missing part of the record is impossible for whatever reason but the court forms the opinion that all the available material on record is sufficient to take the proceedings to its logical end, the court may proceed with the partial record as long as none of the parties to the appeal is prejudiced.
Appeals — Missing Record — When Retrial Should Be Ordered
Where reconstruction of the missing part of the record is impossible and the court forms the opinion that all the available material on record is insufficient to take the proceedings to its logical end, a retrial should be ordered.
Criminal Appeals — Exercise of Discretion on Retrial — Balancing Factors
In exercising jurisdiction to order a retrial where the lower court record is lost, the appellate court must balance the seriousness of the offence, the time already served by the appellant, the period elapsed since witnesses testified, the maximum penalty for the offence, the duration of the original trial, and the interests of justice to both the appellant and society.

Cases cited (6)

  • Kibirige Umar Baker v Uganda (Court of Appeal Criminal Appeal No. 696 of 2015)
  • Ephraim Mwesigwa Kamugwa v The Management Committee of Nyamirima Primary School (Court of Appeal Civil Appeal No. 101 of 2011)
  • Fast African Steel Corporation Ltd v. Statewide Insurance Co, Ltd [1998-2001] HCB 33
  • Jacob Mutabazi v The Seventh Day Adventist Church (Court of Appeal Civil Appeal No. 88 of 2011)
  • Nsimbe Godfrey v Uganda (Court of Appeal Criminal Appeal No. 361 of 2014)
  • East African Steel Corporation Ltd vs Statewide Insurance Co, Ltd 1998-2001 HCB 331

Full judgment

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

Sserunkuma v Uganda (Criminal Appeal 9 of 2019) [2023] UGHCCRD 62 (14 March 2023)
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.