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Tuuni Stephen & Anor v Uganda (Criminal Appeal No. 190 of 2011) [2018] UGCA 37 (13 June 2018)
- Citation
- [2018] UGCA 37
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Court of Appeal of Uganda
- Panel
- Egonda-Ntende, JA, Obura, JA, Musota, JA
- Case number
- Criminal Appeal No. 190 of 2011
- Language
- English
More details
- Court
- Court of Appeal of Uganda
- Panel
- Egonda-Ntende, JA, Obura, JA, Musota, JA
- Case number
- Criminal Appeal No. 190 of 2011
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Court of Appeal held that the absence of the trial court's judgment rendered it impossible for the appellants to exercise their constitutional right to appeal against conviction and sentence. Without the judgment, the record was incomplete and the appeal could not be determined on its merits. Given the appellants had already spent approximately 10 years in custody, including pre-trial detention and time served, and would be close to completing their sentences with remission, the interests of justice did not warrant a retrial. The court therefore quashed the convictions and set aside the sentences, ordering a stay of prosecution and unconditional release of the appellants.
Court disposition
appeal_allowed
Orders
- Convictions quashed and sentences set aside.
- Stay of prosecution ordered in relation to the facts of the case as against the appellants.
- Appellants to be released unconditionally.
- Registrar directed to forward a copy of the judgment to the Chief Justice.
02
Material facts
Parties
Stephen Tuuni
Appellant Counsel: Henry KenyaDavid Kamanyi
Appellant Counsel: Henry KenyaUganda
Respondent Counsel: Ann KabajunguAmounts and remedies
- Amount Robbed First Count: UGX 40,000
- Amount Robbed Second Count: UGX 100,000
- Total Value Second Count: UGX 500,000
- Sentence Appellant 1: 15
- Sentence Appellant 2: 17
03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the absence of a certified copy of the trial court's judgment invalidates the conviction and sentence.
- 02
Whether a retrial should be ordered given the appellants' prolonged detention.
Party arguments
- Applicant
- Counsel for the appellants argued that without the trial court's judgment, the appellants could not challenge the conviction and sentence on their merits. He submitted that the conviction should be quashed and the appellants released unconditionally, considering they had been in custody for about 10 years and that a retrial would not serve the interests of justice.
- Respondent
- The respondent, represented by the Senior State Attorney, conceded that the appeal should be allowed due to the missing judgment but requested that, given the seriousness of the offences, the court should order a retrial.
05
Court’s reasoning
Legal principles
- 01
Constitution of Uganda, Article 28; Court of Appeal Rules, Rule 32(1)
An appeal cannot be substantively heard without the judgment of the trial court, as it is a constitutional right to challenge a conviction on its merits.
- 02
Court of Appeal Rules, Rule 32(1)
The court has discretion to confirm, reverse, vary, remit, or order a new trial, considering the interests of justice and circumstances of the case.
- 03
Judicial precedent and principles of justice
Prolonged detention and near completion of sentence may justify refusal to order a retrial.
06
Ratio, limits and disposition
Ratio decidendi
The Court of Appeal held that the absence of the trial court's judgment rendered it impossible for the appellants to exercise their constitutional right to appeal against conviction and sentence. Without the judgment, the record was incomplete and the appeal could not be determined on its merits. Given the appellants had already spent approximately 10 years in custody, including pre-trial detention and time served, and would be close to completing their sentences with remission, the interests of justice did not warrant a retrial. The court therefore quashed the convictions and set aside the sentences, ordering a stay of prosecution and unconditional release of the appellants.
Obiter and limits
- The court expressed concern over the missing judgment and directed the Registrar to bring the matter to the attention of the Chief Justice for corrective action.
- The court noted the inordinate delay of seven years in hearing the appeal, describing it as egregious and unjustifiable.
Court disposition
appeal_allowed
- Convictions quashed and sentences set aside.
- Stay of prosecution ordered in relation to the facts of the case as against the appellants.
- Appellants to be released unconditionally.
- Registrar directed to forward a copy of the judgment to the Chief Justice.
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 MASAKA
*[CORAM: Egonda-Ntende, Obura & Musota, JJA]*
Criminal Appeal No.190 of 2011
(Arising from High Court Criminal Session Case No. MSK-CO-CR-170 of 2008 at Masaka)
Between
| Stephen==========================Appellant | No. | |---------------------------------------------------|--------------------| | Tuuni | 1 | | Davi<br>========================.<br>d<br>Kamanyi | =Appe11ant<br>No.2 |
And
Uganda=========,==="====:=====:====Respondent
*(On Appealfrom a Judgment ofthe High Court ofUganda [F. B. Jane Kiggundu, J.,] sitting at Masaka and delivered on the 25th August 2011)*
JUDGMENT OF COURT
- 1. The appellants were convicted oftwo counts ofrobbery contrary to sections 285 and 286 (2) ofthe Penal Code. The particulars ofthe first offence were that the appellants on 13th day of April 2008 at Omukabare Ranch No. 10 in Lyatonde District robbed Tumwine Benon ofshs.40,000.00 and at or immediately before or immediately after used a deadly weapon to wit a knife on Tumwine Benon. The particulars ofthe second offence were that on the same day and same place as in the first offence the appellants robbed Kyakori Faibi of a Nokia mobile phone, medicine for cows, a hand bag with clothes, Shs.100,000.00; all valued at Shs.500,000.00 and at or immediately after used a deadly weapon, to wit a knife, on Kyakori Faibi. The appellants were sentenced to 15 years and 17 years imprisonment respectively on each count and both sentences were to run concurrently. Dissatisfied with that decision, the appellants appealed to this court against both conviction and sentence. - 2. The sole ground of appeal stated,
'That the trial court erred in law and fact when it failed to avail a certified copy ofthe Judgment ofthe case.'
- 3. The background to this appeal is that the appellants filed a notice of appeal on the 12 September 2011 against both conviction and sentence. The High Court did not avail the record of appeal including the judgment ofthe trial court immediately to the appellants or to this court. After extensive demands by the Court of Appeal the High Court finally forwarded to the Court of Appeal the record of appeal ofthe High Court but the judgment ofthe learned trial judge was missing. Efforts to locate the same did not yield fruit. - 4. This matter was finally set for hearing and came up on the 12 June 2018. The Appellants' counsel, Mr Henry Kenya submitted that without a judgment the appellants are unable to challenge the decision ofthe trial court on its merits. In those circumstances, he submitted that this court ought to quash the conviction ofthe appellants as it is not supported by a judgment of the trial court. He prayed that considering that the appellants have been in lawful custody for about 10 years including both the pre-trial detention and the period that they have been serving the sentences imposed upon them it was not in the interests ofjustice to order a retrial. He prayed that the appellants should be released unconditionally. - 5. Ms Ann Kabajungu, a Senior State Attorney in the Department of Public Prosecutions, for the respondent, agreed that this appeal should be
allowed in light ofthe absence ofthe judgment ofthe trial court in the record ofthe trial. However, she prayed that as the appellants had been charged with serious offences this court should order a re-trial. - 6. As the record of appeal is incomplete, in the absence ofthe judgment ofthe trial court, it is not possible to hear and determine on the merits an 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. - 7. We have considered the possibility of ordering a retrial in this matter as proposed by the learned Senior State Attorney. However, we note that the appellants have been in custody since April 2008 to-date, a period of about 10 years. This covers both the period spent in pre-trial custody and serving sentence after conviction. The longest sentence was 17 years' imprisonment which was being served concurrently with the one of 15 years'
imprisonment. If one took into account the fact the appellants may have been entitled to remission in addition to the period spent on remand they would be about to complete serving the said sentences.
8. Under Rule 32 (1) ofthe Rules ofthis court, this court may,
'so far as its jurisdiction permits, confirm, reverse or vary the decision ofthe 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.'
- 9. Pursuant to both rules 2 (2) and 32 (1) ofthe Rules ofthis court we are of the view that the justice ofthe case compels us not to order a re-trial but rather a stay of prosecution in relation to the facts ofthis case as against the appellants. To subject the appellants to fresh criminal proceedings would be a travesty ofjustice. - 10. It has come as rather a rude shock to this court that the courts in this country can find themselves in this situation where a court file has such an essential document, a judgment, missing, in this day and age without any explanation whatsoever. We wish to draw the attention ofthe ChiefJustice to this file with a view to taking corrective action to ensure that such a situation is not encountered again. We direct the Registrar ofthis court to forward to the ChiefJustice a copy ofthis judgment. - 11. The appeal in this case has been pending for 7 years. This inordinate delay is simply not justifiable. The people ofthis country and the appellants deserve better. The delay is egregious.
Dated, signed and delivered at Masaka this 13th day of June <sup>2018</sup>
Fredrick Egonda-Ntende Justice of Appeal
Hellen Obura
Justice of Appeal
Stephen Musota Justice of Appeal
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