Court name
HC: Criminal Division (Uganda)
Case number
Criminal Appeal 5 of 2018
Judgment date
12 March 2019
Title

Bukenya v Uganda (Criminal Appeal 5 of 2018) [2019] UGHCCRD 346 (12 March 2019);

Cite this case
[2019] UGHCCRD 346
Coram
Murangira, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUBENDE

CRIMINAL APPEAL NO. MBD- 005 OF 2018

(Arising from Mubende Chief Magistrate’s Case No. 335 of 2014)

 

PAUL BUKENYA===============================APPELLANT

 

VERSUS

 

 

UGANDA===================================RESPONDENT

 

 

JUDGMENT BY HON. JUSTICE DR.  JOSEPH MURANGIRA

 

  1. Introduction.

 

    1. Representation.

 

      1. The Appellant, Bukenya Paul, is represented by Mr. Faizo Mulalira from M/s Nabukenya, Mulalira Advocates, Kampala.

 

      1. The prosecution/ respondent is represented by Mr. Raymond Mugisa, a State Attorney working with the office of Director of Public Prosecutions at Mubende.

 

  1. The appeal.

 

    1. This appeal was commenced by Notice of Appeal filed in this Court on 14th May, 2018. The notice is to the effect that Bukenya Paul was dissatisfied with the decision of His Worship Komakech Robbs. William given at Mubende on 30th day of April, 2018. He is appealing against the conviction and sentence.

 

    1. Memorandum of Appeal.

 

The appellant is appealing against the conviction and sentence on the following grounds; that:-

 

  1. The learned trial Chief Magistrate erred in law and fact by failing to put into consideration the appellant’s evidence in defence.
  2. The learned trial Chief Magistrate erred in law when he failed to evaluate the evidence on court record and thereby arriving at a wrong decision. 
  3. The learned trial Chief Magistrate erred in law and fact when he failed to establish that the respondent had not proved the ingredients of the offence.
  4. The learned trial Chief Magistrate erred in law and fact when he gave a harsh sentence to the appellant.

 

    1. The appellant prays to this Court for orders that:-

 

  1. The appeal is allowed.
  2. The judgment and sentence of the Chief Magistrate at Mubende be set aside.
  3. The appellant be released from Prison and set free.

 

  1. When this appeal came up for hearing, Counsel for the prosecution/respondent submitted that there is no appeal filed in Court as per the law. That as indicated by Court, this application for bail pending appeal arises from Criminal appeal No. 3 of 2018. He prayed for the dismissal of that application and the appeal.

 

Counsel for the appellant/applicant in his submissions argued that there is a valid appeal that was filed by the appellant, that as such the application for bail pending appeal is premised on a valid appeal. He prayed that the preliminary objection raised by Counsel for respondent/prosecution be dismissed.

 

  1. Resolution of the Preliminary Objection raised by Counsel for the Prosecution/Respondent.

 

    1. Counsel for the respondent submitted that according to section 28 of the Criminal Procedure Code Act, Cap. 116 Laws of Uganda, a criminal appeal is commenced by a notice of appeal. That there is no notice of appeal instituting criminal appeal no. 3 of 2018. That what is on the record of appeal is the memorandum of appeal no. 3 of 2018 which was filed in the Court Criminal Registry on 10th-5-2018 by Kazungu, Kakooza, Alinaitwe & Co.  Advocates, Mityana.

 

He submitted that there is no appeal in this Court. And that there is no way that the accused can apply for bail without an appeal being lodged in this Court. That simply put, that the appellant/applicant is not dissatisfied in any way by the judgment of the lower Court.

He prayed for the dismissal of the appeal and the bail application, Miscellaneous application no. 007 of 2018 arising from criminal appeal no. 3 of 2018.        

 

    1. In reply, Counsel for the appellant/applicant submitted that there is a notice of appeal filed in Court on 14th-5-2018, set on page 1 of the record of appeal. That it was filed in Court within time; that is, as per section 28 of the Criminal Procedure Code Act (Supra). That in computation of time reference must be drawn from the judgment the appeal emanates, that the judgment is dated 27th-4-2018.

 

That at page 43 of the record of appeal the judgment is dated 30th April, 2018. That, therefore, the judgment was delivered on            30th-4-2018 and that the date of 27-4-2018 is the date the trial Chief Magistrate completed writing his judgment. Counsel for the appellant/applicant further submitted that according to the record of proceedings at page 37 line 18 shows that judgment fixed for hearing on 18.04.2018 at 09:00 a.m. And that when the parties appeared on that date, same page 37 line 26 judgment was adjourned to 30.04.2018 at 9:00 a.m. That, therefore, there is no way the trial Chief Magistrate could have delivered the judgment on 27th-4-2018. He prayed that the Preliminary Objection be dismissed. He referred on a number of authorities.  

 

    1. In rejoinder, Counsel for the respondent, reiterated his earlier submissions and prayers for the dismissal of both the appeal and the bail application.

 

    1. Resolution of the Preliminary Objection by Court.

 

I have perused the submissions by both Counsel for each party. I also perused the record of appeal containing the proceedings of the lower court. At page 1 of the record of the appeal the appellant filed in Court criminal appeal no. 5 of 2018 vide the Notice of appeal filed in Court on 14th-5-2018. In that notice of appeal, the appellant stated that the judgment was delivered on 30th-4-2018.

 

At page 3 of the record of appeal of the lower Court, the memorandum of appeal lodged in court on 10th-5-2018, the appeal is criminal appeal no. 3 of 2018. It does not state when the judgment of the lower Court was delivered.

Section 28 of the Criminal Procedure Code Act (Supra) provides that a criminal appeal shall be commenced with a Notice of appeal, which shall be filed in Court within fourteen days from the date of the judgment. The judgment trial Chief Magistrate at page 49 of the record of appeal is signed by the trial Chief Magistrate and dated   27th-4-2-018. From the date of the judgment, that is 27th-4-2018 up to the date of 14th-May, 2018 when the Notice of appeal was filed in Court, the fourteen days required for filing a criminal appeal had already expired. According to section 136 (i) of the Magistrates Courts Act, as amended provides that upon the delivery of the judgment the trial Magistrate is supposed to append his/her signature on the judgment and date it with the date on when the judgment was delivered. And the date of the judgment in the instant criminal appeal is 27th-4-2018.

 

Again, there is no Notice of appeal instituting criminal appeal no. 3 of 2018 in the compiled record of appeal of the lower Court. Thus, the memorandum of appeal bearing criminal appeal no. 3 of 2018 has no basis. The Notice of appeal on the court record commenced criminal appeal no. 5 of 2018.

 

At page 61 of the record of appeal of the trial court, Counsel for the appellant filed in Court a document entitled:-

 

“Certificate of correctness. This is to certify that this record of appeal is correct”.

 

By this document, Counsel for the appellant are bound by the date of 27th-4-2018, as the date the judgment was delivered. Again, the Notice of appeal for criminal appeal no. 5 of 2018 was filed in court on     14th-5-2018 by M/s Nabukenya, Mulalira & Co. Advocates, Kampala. Yet at page 60 of the record of appeal counsel for the appellant filed on court record of the lower court on 18.6.2018 a Notice to act as co – counsel. In that notice, counsel for the appellant/ applicant received instructions to act for the appellant on 18th-6-2018. Logically, therefore, there is no way M/s Nabukenya, Mulalira & Co. Advocates, Kampala could have filed the Notice of appeal for criminal appeal no. 5 of 2018 on 14-5-2018. Thus, in my considered view that Notice of appeal at page 1 of the record of appeal of the lower court, notwithstanding that it was filed in court out of time, would be invalid to that extent.

 

Further, I have perused the record of this court in criminal appeal no. 3 of 2018 by the appellant/applicant. I noted that the Notice of appeal was lodged in court on 10th May, 2018. There is a revenue stamp on that document showing the amount paid is Shs. 3000/=, dated 9th-5-2018. On the same court file there is a general receipt that was issued by Cashier of this court, showing Shillings 3000/= dated 9th-5-2018 for filing High Court Criminal Appeal without a number. I have made two parallel crossings and countersigned on that part of the receipt to ensure that the registry staff does not tamper with that receipt.

 

From that receipt it is not clear that the payment was for filing the HC Criminal appeal and not a Notice of appeal. There are no assessment bank forms on the court record. Thus, the impugned Notice of appeal of 10th May, 2018 poses some doubts as to whether it is dully filed court document.

 

In sum total, the respondent’s Counsel’s Preliminary objection is answered in the affirmative.

  1. Conclusion.

 

In closing and in total considerations of the submissions by Counsel for both parties on the Preliminary Objection raised by Counsel for the respondent, the law cited hereinabove in this ruling and my entire analysis of the entire appeal, I hold that there is no valid appeal on the court record that was filed by the appellant/applicant.

 

Wherefore, this appeal no. 3 of 2018, or/and appeal no. 5 of 2018 filed by the appellant is dismissed. Further miscellaneous application no. 007 of 2018 for bail pending hearing criminal appeal no. 3 of 2018 has no basis to stand on. It is too dismissed.

 

Dated at Mubende this 12th day of March, 2019.

 

 

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

DR. JOSEPH MURANGIRA

JUDGE