IN THE COURT OF APPEAL OF UGANDA
HON. LADY JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ.
HON. MR. JUSTICE S.B.KAVUMA, JA
[Appeal from the decision of the High Court of Uganda, (Tinyinondi, J)
dated 17/9/2007 in Criminal Appeal No.11 of 2007]
OF THE TRIAL MAGISTRATE AGAINST CONVICTION AND SENTENCE WAS SUMMARILY DISMISSED.
The appellant was charged with two counts. On count 1 of assault, occasioning bodily harm, contrary to section 236 of the Penal Code Act. On count II, he was charged with doing grievous
harm, contrary to section 219 of the Penal Code Act. On 25th June 2007, he was convicted as charged and sentenced to 6 months imprisonment on the first count and to 18th months imprisonment on the second count.
The sentences were to run concurrently.
Appellant’s counsel filed a notice of appeal on his behalf, which ended with the following sentence.
The grounds of appeal which were filed read as follows –
at wrong decision.
prosecution witnesses thereby arriving at a wrong decision.
into negotiations between the appellant and complainant.
appellant before the said judgment was delivered.
of the complainant’s injury to convict the appellant which was not supported by evidence on record.
bodies were a direct consequence of the alleged appellant’s attack on them, thereby arriving at a wrong decision.
in the circumstances.
of a fine to a custodial sentence in the circumstance”.
adjournment so that he could peruse the certified copy of the record of the proceedings that he had received on 12th September, 2007 and file supplementary grounds of appeal. The learned judge declined to grant the adjournment. He dismissed the whole
appeal according to section 17 (2) of the Judicature Act.
of S.17 (2) of the Judicature Act.
Judge reached an erroneous decision which is tantamount to a miscarriage of justice to the prejudice of the appellant.
During the hearing of the instant appeal, the appellant was represented by learned Counsel, Mr. Henry Kuunya and learned Senior State,
Ms. Annete Koote appeared for the respondent. Counsel for the appellant argued the two grounds separately whereas the respondent’s
counsel argued the two grounds jointly.
17 (2) of the Judicature Act (Cap 13). He submitted that the section gives the High Court supervisory powers over Magistrates’
Courts. He argued that since the appellant had already been tried and convicted by the Magistrate’s Court, the case has been
removed from that jurisdiction. According to counsel, the appeal was coming for hearing before High Court for the first time. There
was, therefore, no delay to be curtailed. The judge was wrong to dismiss the appeal under section 17(2) of the Judicature Act.
was curtailing delays. It was her strong argument that the record of proceedings in the lower court was ready by 2/7/2007. She argued
that it is the usual practice that counsel for the appellant must have a record of proceedings before applying for bail.
In that case appellants’ counsel was able to file a detailed memorandum of appeal on 2/7/2007, although the appeal was coming
for hearing for the first time. She argued that appellant’s Counsel was negligent and was trying to delay the hearing of the
appeal. The learned appellant judge was justified to dismiss the appeal in order to curtail the delays.
State Attorney from the bar, there is no evidence on record that appellants’ counsel received the copy of the record of proceedings
before 12th September, 2007. The letter from the Deputy Registrar, informing counsel for the appellant that the record of proceedings in Criminal
Appeal No.11 of 2007, Dong Yun Kim Vs Uganda was ready, is dated 12th September, 2007. Counsel for the appellant endorsed receipt of the same on the same date. It is appreciated that Mr. Ojok who appeared
for the respondent stated that he received his certified copy of the record of proceedings on 2/7/2007. However, that is no proof
that counsel for the appellant received his copy on the same day or was in a position to do so on that day.
Senior State Attorney.
indicated on the notice of appeal and on the memorandum of appeal that he wished to peruse the certified copy of the proceedings
in order to file supplementary grounds of appeal. He was entitled to such a facility. In the appeal before us, it was necessary for
the appellant to have a fair trial.
However, even if counsel was negligent that is no good reason to penalise the appellant and refuse him his constitutional right.
The law is now well settled that the mistake of counsel should not be visited by court on his client.
“17, supervision of magistrates courts.
abuse of the process of the court by curtailing delays, including the power to limit and stay delayed prosecutions as may be necessary for achieving the ends of justice.”
(2) of the Judicature Act. This caused a miscarriage of justice to the appellant, as his appeal was not heard on merits.
We shall not deal with the second ground of appeal as the above disposes of the whole appeal.
In the result, the appeal is allowed.
It is hereby ordered that the record of appeal in Criminal appeal No.11 of 2007 be remitted to the High Court for trial by another
judge. The appellant is currently on bail and should continue being so on the same terms.
Dated at Kampala this 29th day of April 2008.