[2023] UGHCCRD 79

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### CRIMINAL APEAL No. 9 of 2019

### (Arising from Nabweru Chief Magistrate's Court Criminal Case No. 690 of $2017)$

SSERUNKUMA ASUMAN $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$ **APPELLANT**

Versus

**UGANDA**

..........................

**RESPONDENT**

# **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU RULING**

The appellant, Serunkuma Asuman, was convicted and sentenced by the Nabweru Chief Magistrates Court on the 18^th of January 2019. He then filed this Appeal on the 23^rd of January 2019.

He was assigned Counsel on State Brief who made an application for the lower court record. The appeal has been cause listed on a number of occasions starting with the $23^rd$ of November 2021.

The appellant has informed this court that he was charged with the offence of Simple Defilement and sentenced to a prison term of 15 years. His appeal is against both conviction and sentence.

After a long series of correspondence between the Registrar of this Court and the Chief Magistrate of Nabweru, it was finally admitted on the 14^th of July 2022, in a

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letter from the Chief Magistrate, that all efforts to trace for the lower court record have proved futile.

As a result, the appellant was produced and the Court called for the submission of counsel on both sides.

The Appellant was of the view that the appeal should be dismissed because, as it stands now, he cannot frame grounds of appeal without the lower court record which is prejudicial.

The Respondent argued that the parties should make submissions based on their own record for the court to pass judgement.

By its very nature an appeal is undertaken to have a decision by a lower court reconsidered by a higher court; and that court has the authority to alter the findings of the lower court on any point of law or fact. It may reverse an acquittal or conviction; reduce or enhance sentences and so on.

Ordinarily the appellate court will not call fresh evidence but rely on the lower court record of proceedings. For this reason, the proceedings are the base of any appeal. Without them, the appellate court is handicapped. In addition, it is the proceedings that are utilized by the parties to attack or support the findings of the lower Court.

In this case, the appellant was sentenced to 15 years in prison. He has so far served 4 years of that sentence. In addition, he spent the entire trial period in detention having been first remanded on the 19^th of May 2017. Now however, the lower court record is irretrievably misplaced.

These facts are almost on all fours with those in Kibirige Umar Baker a.k.a Obama vs Uganda 696 of 2015 COA where the Court cited and relied on Ephraim Mwesigwa Kamugwa vs The Management Committee of Nyamirima Primary School Civil Appeal No 101 of 2011 Court of Appeal where is was held that,

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

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 vs Statewide Insurance Co, Ltd 1998-2001 HCB 331.

This court should exercise its jurisdiction judiciously and not visit prejudice on the appellant person as it considers the options set out.

I am aware of the seriousness of the offence that the Appellant was charged with. The interests of justice to society would be to have anybody culpable of a serious crime to serve a just sentence for it, ideally, after a trial on the merits.

That notwithstanding, the appellant has spent close to 6 years in detention against a sentence of 15 years; the earliest possible date of release is in about four years time. In addition, I have also considered how much time has elapsed since the witnesses testified in the first trial; taken into account that a charge of Simple Defilement

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attracts a sentence of life imprisonment and that the trial in the lower court took two years to conclude.

I find that inspite of all the above, this court is of the view that it would serve the interests of justice on all sides to order a retrial.

**Michael Elubu** Judge 14.03.2023