[2025] UGCA 207

## ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAT OF UGANDA HOLDEN AT MBARARA

(Cordm: Kqzibwe Kawumi, Nakochwa, Sobiiti Kakoozo, J!A.)

## CRIMINAL APPEAL NO. OO8O OF 2O2O

# MUGUME SILVER APPELLANT

## VERSUS

## UGANDA RESPONDENT

### (An appeal lrom the judgment of the High Court ol Ugondo ot Mbdrara [Gaswoga] delivered on 2!d May 2077) 15

## JUDGMENT OF THE URT

Pursuant to the Judicature (Plea Bargain) rules No.43 of 2016, the appellant admitted to the offence of murder C/S 17L & 172 ICAP L28). He was sentenced by the trialJudge to 20 years' imprisonment on 23'd May 2077 in accordance with the terms of the Plea bargain agreement.

Background

It was the prosecution's case that on 29th April 2OL6, in Kabirizi cell Kankingi parish, lsingiro District, the Appellant with malice aforethought, unlawfully caused the death of Akankwatsa Lauben by stabbing him in the chest with a knife. The Appellant later voluntarily handed himself to the nearby Police post. During the plea taking proceedings, the Appellant informed the trial Court about Plea bargain agreement with the Prosecution upon which he was convicted and sentenced. 30

The Appellant preferred this appeal on two grounds which are that; -

Page 1of 12

q& U'A

- ⁵ 1. The learned trial Judge erred in law and fact when he failed to follow the right procedure in adopting the plea bartain agreement thereby occa ;ioning a miscarriage of justice. - 2. The learned trial Judge erred in law and fact when he failed to consider the time spent on renrand at the time of passing the sentence thereby occasioning a miscarriage of justice.

Based on the foregoing grounds, the Appellant proposed that the couit quashes the conviction and sets aside the sentence. ln the alternative that if the conviction is upheld, that the sentence be reduced as may be determined by the Court.

## Representation

Mr. Geoffrey Chan Masereka represented the appellant on state brief while Mr. Baguma Batson, a Chief State Attorney held brief for Mr. Rukundo Martin an Assistant Director of public prosecution for the respondent. The appellant was present in Court. The Notice of appeal filed out of time was validated and the appeal proceeded by way of written submissions which were adopted as Counsel,s final arguments in the determination of the Appeal. 20 25

# Ground one of the appeal

The learned trial Judge erred in law and fact when he failed to follow the right procedure in adopting the plea bargain agreement thoreby occasioning a miscarriage of justice.

# Submissions for the appellant

Counsel for the appellant submitted that the procedure for recording ^a plea bargain agreement stipulated under rule tZ (21 ol the judicature

:s Plea bargain rules, 2016 was not followed. The record of proceedings does not indicate the language in which the charge was read and it does

Page 2 of 12

Q\*

5 not indicate th at the a ppella nt u nde rstood the ingred ients of the offence or not.

10 It was further argued that rule 12 (5) of the judicature (plea bargairr) rules, 2016 requires that a plea bargain confirmation be signed by the parties before the presiding judicial officer but the signatures on the confirmations were affixed on April 24,2Ol7 yet the parties appeared beforethe judicia I officer on May23,2OL7. Counsel, relied on Musinguzi Apollo v. Uganda [2019] UGCA 1S7 to support his argument.

rs On the other hand, it was submitted for the respondent that wherr:as it is true that there was failure to indicate that the charge was reari and explained to the accused in a language he understands and the failure to show that the accused was invited to take plea as required by rule 12(Z) of the Judicature (Plea Bargi in) rules, the errors did not occasion ^a 20 m isca rriage of Justice.

Counsel invited the Court to peruse the Record ofAppealwhich indicates that the indictment was read to the appellant and he pleaded guilty in the presence of his Counsel. lt was also argued that the appellant confirmed that he entered the plea of guilty after he had discussed with zs his advocate the facts of the case, the elements of the offence and any defenses with full understanding of all the matters set forth in the charge as reflected in the Plea Bargair agreement.

30 Counsel further submitted, that the appellant had full knowledge of the facts of the case interpreted in the Runyankore language which he stated to have understood. On that premise, it was submitted that the failure by court to inquire from the accused the language he understancs did not occasion a miscarriage of justice since the appellant had already indicated in the plea bargain form that he understands that language.

Page 3 of 12

@"a

- ⁵ Additionally, it was submitted for the respondent that the fact that parties signed the agreement before confirmation by the learned trial Judge did not occasion a miscarriage ofJustice since the appellant did not disown his signature on the document but confirmed it. - Counsel cited section 139 of Trial on lndictment Act which provides that no finding, sentence or order passed by the high court shall be revr:rsed or altered on appeal on account of any error, omission, irregularrty nr misdirection in the summons, warrant, indictment, order, judgement or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice. 10 15

On that premise, Counsel for the respondent invited the court to find that failure to indicate the language which the accused understood and also signing the plea bargain agreement by the parties prior to the date

of confirmation by the judge was not fatal as it did not occasior, any misca rriage of justice. 2A

## Analysis and determination

This being the first appeal, this Court is duty bound to carefully examine and analyze afresh the evidence on record and come to its own conclusion. The court must however be mindful of the fact that the trial court had the advantage of seeing and hearing the witnesses and observing their demeanor and so the first appellate court must give allowance of the same. See Okeno v Republic ll9l2l EA32 25

We shall be guided by the aforementioned principles, in the analysis and determination of this appeal. 30

We have considered the record of proceedings of the lower court and the law relating to plea taking as well as Plea bargain in Uganda. The record shows the procedure adopted by the trial judge during plea taking. We found it necessary to reproduce the proceedings below in

Page 4 of 12

0 ul//

order to bring out the context in which the complaints in the appeal are $\mathsf{S}$ premised.

The record is as follows; -

$23/5/2017$

$\overline{a}$

Mr. Muhereza for state

Mr. Barekensi for accused

**Accused present:** I signed the agreement

**Court:** Indictment read to accused

**Accused:** I am quilty

*Court:* Plea of guilty entered

**BRIEF FACTS:** As per paragraph 3.0

**Accused:** Facts admitted as correct.

**Court:** You are convicted on your own plea of auilty as Charaed.

**State:** Aggravating factors as per paragraph 4.1."

**Mitigation:** Paragraph 4.2

**Remand:** 1 year 19 days

**Convict :** I pray for forgiveness from complainants. I have repented. It was bad.

**SENTENCE:** Aggravating and mitigating factors considered. A sentence for 20 years would be suitable. Considering period sent on remand I shall impose a sentence of nineteen (19) years from today. Right of appeal explained.

> Judge 23/5/2017"

**.....................................**

Page 5 of 12


⁵ The plea bargain agreement is attached to the proceedings as part of the record. Section 51 of the Trial on lndictments Act [CAP 25] is instructive on the procedure to be adopted by the Courts in plea taking proceedings. It provides as here below; -

## "67. Pleading to indictment

"The occused person to be tried before the High Court sholl be ploced ot the bor unfettered, unless the court sholl couse otherwise to order, ond the indictment sholl be reod over to him or her by the Chief Registror or other officer of the Court, and exploined if need be by that officer or interpreted by the interpreter of the Court; ond the accused person shall be required to pleod instantly to the indictment, unless, where the occused person is entitled to service of a copy ofthe indictment, he or she sholl object to the wont of such service, ond the court sholl find thot he or she hos not been duly served with o copy."

Section 64 is instructive ofwhat should be done when the accused pleads guilty. lt provides; -

## "64. Pleo of guilty

lf the accused pleods guilty, the plea sholl be recorded ond he or she moy be convicted on it."

The Court of appeal of East Africa in the case of Adan lnshair Hassan v Republic (1973) EA 443 expounded on the procedure to be followed. 30

It was held that; -

"When o DCrson is choroed. the charoe ond the porticulars should be reod out to him so for as possible in his own lanauoae. but if thot is not possible. then in o lanouooe which he con speak ond understand. . The moaistrote should then

Page 6 of ¹² €q\*

exDlain to the occused person oll the essentiol inoredients of the offence chorqed. lf the accused then odmits oll those essentiol elements, the mogistrote should record what the accused has said, os neorly os possible in his own word, ond then formolly enter a pleo of guilt. The mogistrote should next osk the prosecutor to stote the focts of the a eged offence and when the statement is complete, should give the accused on opportunity to dispute or exploin the focts or to odd ony relevont facts. lf the occused does not ogree with the stotements of facts or osserts additional focts which. if true miaht roise o oue n os to his ouilt. the moqistrote should record o chonoe of oleo to not ouiltv and Droceed to hold o triol. lf the accused does not deny the olleged focts in any moteridl respect, the magistrote should record o conviction and proceed to heor ony further focts relevont to sentence. The stotement of focts and the occused,s reply must, of course, be recorded. " (underlined for emphosis).

The proceedings of the Court on 23/S/20t7 do not show whether the Court proceeded with the aid of an interpreter. lt is however indicated that the indictment was read to the appellant and he respond ed ,.1 om guilty". On the other hand, the proceedings of 24/ /ZOI7 leading to the agreement indicate that an interpreter/tra nslator was available.

30 This creates doubt as to whether the appellant understood the proceedings of 23/5/2017 and/or whether the proceedings were interpreted to him as required by law.

ln Sebuliba Siraje V. Uganda [2014] UGCA 123 it was held that;

"lt is desiroble thot d triol Court should indicote the languoge in which the indictment hos been reod ond explained, ond the proceedings interpreted to the accused. /f osslsts the oppellote

Page 7 o! ¹² tril,,,w

Courts in discerning whether the occused fu y understood the noture ond consequences of his pleo."

The proceedings of 23/5/20L7 further reveal that the trialjudge did not explain the essential ingredients of the charge of murder to the accused but made reference to paragraph 3.0 of the plea bargain agreem(.nt as the brief facts of the case.

Paragraph 3.0 of the agreement provides as follows; -

## "3.0 Summory of the cose/Jgreed lacts (Between prosecutions ond the defence)

Mugume Silver on 29th doy of April 2016 ot Kobirizi Cell in ^Ising i ro D istrict M urde red La ube n Aka n kwa so.,,

We noted that Paragraph 3.0 does not constitute the legally knou.n ingredients of the offence of murder that the appellant had to understand before offering his plea to the charge.

## 25 It was held in Tomasi Mufumu V. R [1959] EA 625 thau -

".....it is very desirable thot a triol judge, on being oft'ered ^o pleo which he construes os o plea of guilty in o murder cose, should not only satisfy himself thot the plea is an unequivocol pleo, but should sotisfy himself olso and record that the occused understonds the elements which constitute the offence of murder.....ond understonds thot the penolty is deoth."

35 Additionally, the trialjudge did not direct the state attorney to read the brief facts of the charge. lt has been held that the statement of facts by the Prosecution serves three purposes: lt is crucial for the accused person to make an informed decision about his or her plea. lt also enables the judicial officer to satisfy himself that the plea of guilty was

trq CJW

⁵ really unequivocal and that the accused has no defence, and it gives the .iudicialofficer basic materialto assess the sentence. SeeJuma Nkunyinji and Anor V. Uganda [2015] UGCA 2017.

ln this case, we wish to add that the omission to read the facts by the prosecution also deprived the trial Court of the ability to assess whether to accept or reject the Plea bargain agreement as provided for in rule 13 (1) of the Judicature (Plea bargain) rules, 2016. 10

ln Engulu Denis V. Uganda [2024] UGCA 234, it was held that readir g the facts to the a ppellant is a mandatory requirement that cannot be waived. 15

It would thus be injudicious to conclude that the plea amounted to an admission of every constitu?nt of the indictment. The procedure adopted by the trial Judge was irregular and vitiates the plea taking proceedings given the seriousness of the offence and the imposable sentence on conviction had the appellant not chosen to take the plea bargain avenue.

- Trial Courts should note that the process of recording a plea of guilty is ^a serious matter in the administration of criminal justice. lt is not a mere formality that is executed to suit the comfort of the presiding judicial officer even where there is a plea bargain agreement executed by the parties prior to plea taking. Recording of a plea of guilty is must conform to the requirement of the law. 25 - The elaborate procedure in Adan lnshair Hassan v Republic (Supra) must be mandatorily applied by a trial Court when an accused pers)n is arraigned and called upon to plead to the indictment. 30

lfind the Kenyan decision of Elijah Njihia Wakianda V. Republic [2016] KECA 181 persuasive n its emphasis on the implications of Criminal proceedings. lt was held that: 35

Page 9 of 12

q CrA

"Criminal proceedings have serious implications on the life and liberty of persons accused depending on the offence charged. The criminal process is designed for the forensic interrogation and determination of guilt with various rights and safeguards built into it to ensure that only the guilty get to be convicted. ......... Thus, it is that the courts, at any rate appellate courts, would not accept a plea of guilty unless satisfied that the same has been entered consciously, freely and in clear and unambiguous terms."

It cannot be concluded that the appellant in this case entered the plea 15 of guilty consciously, freely and in a clear and unambiguous terms where the ingredients of the offence were not explained to him, where the Prosecution did not read him the facts of the case. It is further not shown that the proceeding were conducted in the Runyankole language which was used during the negotiations that led to the signing of the plea 20 bargain agreement.

We are alive to Section 138 (1) and (2) of the Trial on Indictments Act Cap. 25, cited by the Respondent's counsel which provides that; -

$\ddot{\phantom{0}}$

$\mathsf{S}$

## "138. Reversability or alteration of finding, sentence or order by reason of error, etc.

(1)Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, *indictment, order, judgment* warrant, $or$ other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice.

(2)In determining whether any error, omission, irregularity or misdirection has occasioned a failure of justice, the court

Page 10 of 12

sholl hove regord to the question whether the objection could ond should hove been roised ot on earlier stdge in the proceedings."

\

We note that the failure to -ead out the facts of the charge to the accused was a grave omission which affected the plea taking exercise the trial Court had embarked on. The reading of the facts to the appellant was at the core of the whole plea taking process failure of which occasioned a miscarriage of justice that cannot be cured by section 138 0f the Trial on lndictments Act.

According to the Essentio, Low Dictionory by Amy Hackney Blackwell, Miscorrioge of just,ce means; - 15

> "errors mode by a court thot damoge the rights of o porty sufficiently to worrant reversal of the decision."

It was necessary for the appellant be afforded the aid of an interpreter for the facts of the indictment to be read to him. The appellant was denied the opportunity to dispute or explain the facts and to acd anything relevant if he so wished. The misstep did not only occasion ^a miscarriage of justice but rendered the whole plea taking process flawed. 20 25

30 We find merit in the first ground of appeal. We accordingly quash the conviction and set aside the sentence imposed by the trial court. We order for the immediate release of the appellant unless he is held o r any other lawful charge.

Given our decision to set aside the conviction and sentence on account of the flawed plea taking exercise, we find no reason to canvass the second ground of a ppea l.

Page 11 of ¹² tr6 C,W

5 4^ Signed, dated and delivered at Kampal; this.lZ7.... day of 7\*\*a..2025.


Moses Kazibwe Kawumi Justice of Appeal

Florence kachwa Justice of Appeal

Cornelia Kakooza Sabiiti Justice of Appeal

15