Share
Eliasa Namunyu & 5 Others v Uganda (Criminal Appeal No. 16 of 2016) [2020] UGCA 2085 (6 August 2020)
- Citation
- [2020] UGCA 2085
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Court of Appeal of Uganda
- Panel
- Cheborion, JA, Egonda-Ntende, JA, Kibeedi, JA
- Case number
- Criminal Appeal No. 16 of 2016
- Language
- English
More details
- Court
- Court of Appeal of Uganda
- Panel
- Cheborion, JA, Egonda-Ntende, JA, Kibeedi, JA
- Case number
- Criminal Appeal No. 16 of 2016
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The absence of plea taking in the trial court proceedings constituted a fundamental breach of the appellants' right to a fair trial as guaranteed by Article 28(3)(b) of the Constitution of Uganda. The record showed no indication that the appellants were ever informed of the nature of the offence or given an opportunity to plead, rendering the entire trial a nullity. The court relied on established precedent that a trial without a plea is void. Given the unique circumstances, including the passage of time since the alleged offence, the period already served by the appellants, and the fact that the mistrial was not their fault, the court declined to order a re-trial and instead ordered a stay of prosecution and immediate release of the appellants.
Court disposition
appeal_allowed
Orders
- The appeal is allowed.
- The proceedings and conviction are quashed and sentences set aside.
- A stay of prosecution is ordered.
- Immediate release of the appellants is directed.
02
Material facts
Parties
Tabo Abubakari
Appellant Counsel: Obonyo JobWandera Lukeman
Appellant Counsel: KyabakayaNambiro Shaban Wamaghe
Appellant Counsel: KyabakayaUganda
Respondent Counsel: Peter MugishaAmounts and remedies
- Sentence Imprisonment Years: 37
03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the appellants ever pleaded to the charges for which they were tried, convicted and sentenced.
- 02
Whether the absence of plea taking rendered the trial a nullity.
- 03
Whether a re-trial should be ordered in the circumstances.
Party arguments
- Applicant
- The appellants argued that there was no record of plea taking, which is a fundamental requirement for a fair trial under Article 28(3)(b) of the Constitution. They contended that the absence of a plea rendered the trial a nullity and that they should not be subjected to a re-trial given the time already served and the circumstances of the case.
- Respondent
- The respondent did not dispute the absence of plea taking but may have argued for the upholding of the conviction or for a re-trial. However, the record shows no indication that plea was taken, and the respondent's submissions did not overcome this fundamental defect.
05
Court’s reasoning
Legal principles
- 01
Article 28(3)(b) of the Constitution of Uganda
Plea taking is a fundamental principle of a fair trial and must be conducted for a valid criminal trial.
- 02
Criminal Appeal No.204 of 2012, Rev. Fr. Santos Wapokra Vs Uganda (Court of Appeal Unreported)
Where an accused does not plead to a charge, the trial is a nullity.
06
Ratio, limits and disposition
Ratio decidendi
The absence of plea taking in the trial court proceedings constituted a fundamental breach of the appellants' right to a fair trial as guaranteed by Article 28(3)(b) of the Constitution of Uganda. The record showed no indication that the appellants were ever informed of the nature of the offence or given an opportunity to plead, rendering the entire trial a nullity. The court relied on established precedent that a trial without a plea is void. Given the unique circumstances, including the passage of time since the alleged offence, the period already served by the appellants, and the fact that the mistrial was not their fault, the court declined to order a re-trial and instead ordered a stay of prosecution and immediate release of the appellants.
Obiter and limits
- Each case must be decided on the basis of its unique facts and circumstances when considering whether to order a re-trial.
- The mistrial was not the fault of the appellants, and they have already served significant time in custody.
Court disposition
appeal_allowed
- The appeal is allowed.
- The proceedings and conviction are quashed and sentences set aside.
- A stay of prosecution is ordered.
- Immediate release of the appellants is directed.
Source and reliance status
Court of Appeal of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of Appeal of Uganda
Judgment
THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT MBALE
(Coram: Egonda-Ntende, Barishaki, and Kibeedi, JJA)
CRIMINAL APPEAL NO.16 OF 2016
(HCCR Case No.57 of 2014)
BETWEEN
A.1 HAJJI ELIASA NAMUNYU (RIP)
A.2 HAJJI MALIKI WANAMBILI (RIP)
A.3 TABO ABUBAKARI:::::::::::::::::::::::::::::::::::
A.4 WANDERA LUKEMAN
$\mathcal{L}_{\text{max}}$
A.5 MUSIHO UBAIDI (RIP)
A.6 NAMBIRO SHABAN WAMAGHE
VERSUS
UGANDA:::::::::::::::::::::::::::::::::::
JUDGEMENT OF THE COURT
The appellants appealed to this court against the conviction for murder contrary to Sections 188 and 189 of the Penal Code Act, cap 120 and the sentence of 37 years' imprisonment that was handed down to each one of them by the High Court of Uganda sitting at Mbale.
When the appeal came up for hearing, court was informed that A1(Hajji Eliasa Namungu), A2 (Hajji Maliki Wanambili) and Musiho Ubaidi had passed on. That left only A3(Tabo Abubakari), A4 (Wandera Lukeman) and A6 (Nambiro Shaban) to continue with the appeal.
At the trial before us the surviving appellants were represented as follows:
- Counsel Obonyo Job For A3 (Tabo Abubakari); and - Counsel Kyabakaya For A4 (Wandera Lukeman) and A6 (Nambiro Shaban Wamaghe).
On the other hand, the respondent was represented by Mr. Peter Mugisha, a State Attorney.
Both the appellants and respondents filed written submissions and we reserved our judgement on notice.
On perusing the record of proceedings of the trial court, there was no indication whatsoever that the appellants had ever pleaded to the charges for which they were tried, convicted and sentenced.
From the record of proceedings, on 27.04.2015 when the trial of the case started, it is indicated that the proceedings started by both counsel for the prosecution and the accused tendering into court documents by agreement. Thereafter court started hearing the oral testimonies of the prosecution witnesses.
In Criminal Appeal No.204 of 2012, Rev. Fr. Santos Wapokra Vs Uganda (Court of Appeal Unreported), it was held that plea taking is a fundamental principle of a fair trial as enshrined in Article 28(3)(b) of the constitution of Uganda which provides:
"Every person who is charged with a criminal offence shall ... be informed immediately, in a language that the person understands, of the nature of the offence".
Further, it was stated that where an accused does not plead to a charge, then the trial is a nullity.
We therefore allow this appeal, quash the proceedings and conviction and set aside the sentences.
We have considered whether in the circumstances of this case, it would be just to order a re-trial. We are of the view that in arriving at any decision, each case must be decided on the basis of its unique facts and circumstances.
The offences for which the appellants were tried under the nullified proceedings were alleged to have been committed almost eight years ago (in 2012). The appellants spent three years on remand and have now served five years out of the sentences of imprisonment handed down to them by the High Court. The mistrial was not the appellants' fault.
In the result we decline to order a re-trial. We order a stay of prosecution and direct immediate release of the appellants.
We so order
Dated at Mbale this OBth Day of Angus 2020
Hon. Justice Fredrick Egonda-Ntende
Justice of Appeal
Amingri
Hon, Justice Barishaki Cheborion
Justice of Appeal
$cileed$
Justice of Appeal
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.