[2021] UGHCCRD 76
The appeal was dismissed because the respondents were never traced or served, and proceeding in their absence would be contrary to the interests of justice and the principles of fair hearing. The repeated failure to effect service rendered the appeal unsustainable, and the court found that justice required dismissal...
Source-derived case information.
- Citation
- [2021] UGHCCRD 76
- Parties
- Appellant: Uganda; Respondent: Mubuke Johh; Respondent: Kawere John
- Court
- HC: Criminal Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal 28 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- Elubu, J
- Legal Topics
- Malicious Damage to Property, Service of Process, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uganda
Appellant
Mubuke Johh
Respondent
Kawere John
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appeal can proceed in the absence of service on the respondents.
- 2 Whether the failure to serve the respondents affects the fairness of the proceedings.
Ratio Decidendi
The appeal was dismissed because the respondents were never traced or served, and proceeding in their absence would be contrary to the interests of justice and the principles of fair hearing. The repeated failure to effect service rendered the appeal unsustainable, and the court found that justice required dismissal of the appeal in these circumstances.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA**
### **CRIMINAL APPEAL No 28 OF 2017**
#### **(Arising from Nakawa Magistrates Court Case No 468 of 2014)**
**UGANDA :::::::::::::::::::::::: APPELLANT**
*vs*
# **1. MUBUKE JOHH 2. KAWERE JOHN ::::::::::::::::::::::: RESPONDENT**
## **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU**
## **JUDGMENT**
This is an appeal lodged by the State against the judgment and orders of **HW Nantege Christine,** Magistrate Grade I, who acquitted the respondents on a charge of Malicious Damage to Property c/s 335 of **the Penal Code Act (PCA)**.
The brief background is that the appellant being dissatisfied with the findings of the lower Court lodged this appeal on the 8th of February 2017. The matter first came up for hearing on the 28th of May 2018. On that date the appellant counsel and the complainant were present in court but the respondents had not been served and were both absent. The appellant was granted an adjournment to file a memorandum of appeal and also to serve the respondents. The hearing was adjourned to the 20th of June 2018. On the 20th of June 2018 the Respondents were absent and had still not been served. The State Attorney applied to have the matter
withdrawn because the facts showed the case was more of a civil dispute than a criminal case. The appeal was withdrawn but within a few hours the complainant protested and the appeal was reinstated. From then to date, the hearing has been adjourned on the following dates: 11th of July 2018, 4th of September 2018, 11th of September 2018, 30th of August 2020 and 25th of July 2021.
On all the stated dates the respondents have been absent for lack of service. The Appellant has always sought for an adjournment to have the respondents served. Despite the keen interest shown by the complainant at the beginning no service has ever been effected.
On the 15th of September 2020, the appellant filed written submissions. Those submissions are on record but were not served on the respondents.
In light of the foregoing however, it would not be in the interest of justice to proceed with this appeal in these circumstances where respondents have never been traced or served.
In the circumstances, the appeal is dismissed.
**………………………………..**
**Michael Elubu**
**Judge**
**7.10.2021**