[2021] UGCA 140

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT

## **KAMPALA**

## CRIMINAL APPEALS NO.01, 06, 07 AND 08 OF 2015

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CORAM:Egonda-Ntende, Bamugemereire, Madrama JIA

**A1 LUKWAGO HUSSEIN**

**A2 MUSOKE JAMIR**

A3 SSEMBATYA JOHN $10$ A4 LUBEGA HENRY (RIP)::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

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(*Arising out of the Judgment of Elizabeth Nahamya J*) (in Nakawa Criminal Session Case No. 0241 of 2010) (High Court of Uganda)

# JUDGMENT OF THE COURT

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The four appellants were indicted, tried, and convicted for the offence of Murder contrary to section 188 & 189 PCA and Aggravated Robbery contrary to section 285 & 286(2) PCA and each sentenced to serve 13 years 2 months and 15 years 2 months imprisonment concurrently.

# **Representations**

Written submissions in this Appeal were filed by learned Counsel Mr. Henry Kunya who represented the appellant and Ms Fatinah Nakafeero Chief State Attorney appeared

for the Respondent. Both Counsel relied on written $\overline{5}$ submissions which were adopted by this court. The appellant did not appear in person but appeared on the video link in court in compliance with the Covid-19 guidelines.

#### **Submissions of the Appellants** $10$

Counsel for the appellant submitted that several important items are missing on the record including the Judgment, court records in relation to the Allocutus, Mitigation proceedings and Sentence. Counsel for the Appellant submitted that the failure to avail the requisite Judgment 15 and other relevant documents makes it impossible to pursue the merits of the intended appeal. He relied on **Section 2 (2)** of the Judicature Court of Appeal Rules

"nothing in these Rules shall be taken to limit or otherwise $20$ *affect the inherent power of the court, or the High Court, to* make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they $25$ *have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay"*

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### and Section 32 $(1)$

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"On any appeal, the court may, so far as its jurisdiction permits, confirm, reverse, or vary the decision of the High *Court, or remit the proceedings to the High Court with such* directions as may be appropriate, or order a new trial, and make any necessary, incidental, or consequential orders, *including orders as to costs."*

Relying on the decision of Kiyimba Ronald v Uganda

CACA 102 of 2011 counsel submitted that this Court $10$ allowed an appeal with similar facts and declined to order a retrial considering Article 126 $(2)$ (b) of the Constitution. He invited this court to set off the 5 years the Appellants have spent on remand pre-trial and another 6 years 5 months served after sentence which add up to nearly 11 and a half $15$ years. He opined that a re-trial would certainly amount to an injustice and that court should accept the appeal and order for the immediate release of the appellants.

#### **Submissions of the Respondents** 20

Counsel for the respondent however submitted that it is the duty of the Registrar of the High Court, Rule 64 (7) to prepare a record of appeal within 6 weeks and that failure $25$ of the Registrar to carry out their duty should not be visited on the vulnerable public most particularly the Appellants. She further submitted that under rule 30 of the rules the court can appraise the evidence and draw inferences of fact

and come to a finding hence providing justification and accountability to the victim and public. Counsel further refers to the record of proceedings where the assessors state their opinion. That the Court of Appeal can reappraise the

evidence and draw inferences of fact and come to a finding. $\overline{5}$

# **Consideration of the Appeal**

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This is a first Appeal. This court is required under **Rule 30** (1) of the Judicature (Court of Appeal Rules) Directions S. I **13-19** to re-appraise the evidence and make its inferences on issues of law and fact see **Bogere Moses and another v Uganda S. C. C. A No. 01 of 1997.**

The appeal is premised on the ground that the trial court failed to avail a certified copy of the judgment to the appellants hence occasioning the appellants a gross $15$ miscarriage of justice.

It is the duty of this court, as a first appellate court, to reevaluate the evidence of the trial court and re-appraise it, $20$ and to draw its own conclusions. In doing so, it should make allowance for the fact that it neither saw nor heard the witnesses as they testified. See **Selle v Associated** Motorboat Co (1968) EA 123 at page 126.

As much as it is the duty of the first appellate court to reevaluate evidence this duty is constrained by the absence of a judgment on record. Not to mention that this court neither saw nor heard the witnesses as they testified, there's also no

judgment, allocutus, mitigation and reasons for sentencing. $\overline{5}$

In Ephraim Mwesigwa Kamugwa v The Management Committee of Nyamirima Primary School (Civil Appeal-2011/101) [2019] UGCA Fredrick Egonda-Ntende JA in his judgment analysed the law on incomplete record on appeal.

"What is the law with regard to an incomplete record on appeal? The law on missing record of proceedings has long been established. Where a record of trial is incomplete by reason of parts having been omitted or gone missing, or where the entire record goes missing, in such circumstances, the appellate court has the power to either order a retrial or reconstruction of the record by the trial court. See fast African Steel Corporation Ltd v State-wide Insurance Co. Ltd [1998-2001] HCB 33.

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 a logical end, the court may proceed with the partial record as long as none of the parties to the appeal is prejudiced. **Jacob** Mutabazi v The Seventh Day Adventist Church, **Court of Appeal Civil Appeal No. 088 of 2011.**

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However, where reconstruction of the missing part of the record is impossible and court forms the opinion that all the available material on record is insufficient. to take the proceedings to its logical end, a re-trial should be ordered. See **Nsimbe Godfrey v. Uganda**, Court of Appeal Criminal Appeal No. 361 of 2014 (unreported), and East African Steel Corporation Ltd v. Statewide Insurance Co, Ltd T1998-2001 HCB 3311."

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Even though the current record had sufficient detail to reconstruct the trial proceedings especially in the assessors summing up notes, the appeal record before this court lacks essential appeal documents comprising of the judgment,

The finding in Bath v Escott [2017] EWCH 1101 (Ch) that the reasoning contained in a judgment is clearly relevant and important for the purpose of an appeal as it will be evidence of whether there has been an error of fact or law;

mitigation, allocutus and reasons for sentencing.

- transcripts or judgments are routinely quoted in grounds $20$ **of appeal.** In absence of a judgment and other essential records the court has an option of conducting a retrial. This court quashed the convictions and set aside the sentences of appellants in Tuuni Stephen & another v Uganda [2018] - **UGCA 37** when the record lacked the Judgment. $25$

"As the record of appeal is incomplete, in the absence of the judgment of the trial court, it is not possible to hear and determine on the merits an

$\overline{7}$ appeal in this case. The appellants are so constrained that they cannot simply prepare and present a substantive appeal to this court which is a constitutional right. In those circumstances, we are left with no alternative but to quash their conviction and set aside the sentences imposed upon them."

As a result of glaring setback, learned counsel for the respondent invited this court to arrive at its own decision based on the available evidence or to order a fresh trial. We $10$ hereby rely on the authority of **Kaye Samuel v Uganda CACA NO 300 of 2010** where this honourable court held:

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"The interest of justice would not be met if an order for retrial was made in circumstances where an appellant appeared to be suffering the full brunt of $15$ the administrative flaws... a retrial in this case may not be advisable given the passage of time which could lead to eroded memory of the witnesses, and the quality of their evidence being compromised and or biased, fostering further injustice. This court $20$ found in Tuuni Supra that the delay caused by loss of vital court records is unjustifiable and the appellants indeed deserved better from the justice system. We find that the judgment which would have been the basis of appeal in this case is $25$ irretrievably lost and the hearing of the appellants appeal has been inordinately delayed for over 10 years. The court concludes that failure to keep record leading to an injustice is not the appellants' fault. The conviction and sentence against the appellant 30 are with set aside. The appellant is forth with discharged unless held on other lawful grounds.

Upon perusal of file we have considered the time the appellants have spent in prison since 2010 and the time between which they filed their notice of appeal that is $06/01/2015$ . The appellants have never received the judgment even after several letters have been written from $\overline{5}$ the Court of Appeal to the Deputy Registrar of the High Court seeking the missing documents and that it is now a fact that these missing records cannot be retrieved. Additionally, it has been over 11 years since the offence was committed. It is noteworthy that one of the accused persons $10$

(A4) passed away before his appeal was heard. This case mostly relied on circumstantial evidence which involved collection of various pieces of evidence to make out a case. In light of the passage of time hearing the multiple witnesses

is now almost impracticable, therefore a retrial is as $15$ imperilled as the reconstruction of the record of trial. Counsel for the Respondent underscored the importance of safe custody of court records considering the harm a mistrial does to the victims of crime. He decried the constant loss of

$20$ records which lead to injustice to all parties. We note that the legal use of criminal sanctions are justified in order to cause deterrence, retribution, reparation, and restoration and rehabilitation of the offender. Under deterrence and retribution which is a 'Hammurabic' and

rather old-fashioned approach to criminal justice, a person is punished in equal measure to his wrong; almost like an eye for an eye. It presupposes that offenders deserve no mercy and their best deserts is to be dished with the

- punitive sentences. Alone the conundrum from retribution $\overline{5}$ to reparation and rehabilitation, there is more reflection on giving a chance to the offender in order to rehabilitate and re-orient the offender to a more useful person in society. It should be further noted that under reparations for the - be effective sentence to $\quad\text{it}\quad$ $10$ must appropriately, proportionately and accurately reflect and fit the seriousness of the criminal act committed and the harm it has caused. When restorative and rehabilitative means are used, however, there is the possibility that there might be a - positive change in the behaviour of the offenders. Therefore, $15$ the time already served by the accused has reflected on the principles of deterrence, retribution, and reparation. - We agree that the appellants have spent a total of about 11 years in prison and that absence of the records has infringed $20$ on the appellants right to a fair hearing. The appellants were sentenced to 13 years and 2 months and 15 years and $2$ months both sentences to run concurrently.

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It is a well-established maxim of law that **delay defeats equity**, the appellant's right of appeal has been unjustifiably delayed by the justice system for a period of about 6 years. So, putting into consideration the time already served and

- the frustration from the delay the conviction and sentence $\mathsf{S}$ against the appellant are set aside and the appellants are discharged unless held on other lawful grounds. - In relation to the missing records it should be noted that the court record is one of the most valuable assets to the $10$ dispensation of justice. (See Maseh E(2015), Managing **Court records in Kenya).** This is not the first and probably not the last case in serios allegations of missing records are made. It is possible that there is poor record keeping in the - registry. On a more serious note however, fraudulent $15$ leakage in the system where records are intentionally lost in order to fail the cause of justice to all is a worrying prospect. It brings the integrity of the justice system under scrutiny. Sadly, all the cases relied on in this judgment are precedents - of missing records in most of which sentences are set aside $20$ as a direct consequence of missing court records. Whatever the reason might be, for the future and in the interest of justice it is prudent that the Principal Judge reviews all these cases and makes inquiry into the record keeping system to

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seal any possible leakages of such nature and to get justification on how these records go missing.

On a positive note, it is hoped that the digitalisation of all court documents records will bring an end to the spate of

lost court records. $\overline{5}$

> In conclusion this appeal is allowed; the conviction and sentences are set aside and prayer for a retrial is declined. The Appellants are herewith set at liberty unless held on any other lawful ground.

We so order. $10$

Dated at Kampala this 3. day of N. 2021

HÓN. MR. JUSTICE FRÉDRICK EGONDA-NTENDE $15$

**JUSTICE OF APPEAL**

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HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE **JUSTICE OF APPEAL**

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HON. MR. JUSTICE CHRISTOPHER MADRAMA **JUSTICE OF APPEAL**