FIRM E2

CRIMINAL PROCEEDINGS, TERM THREE

WORKSHOP 2

September 9, 2020

Brief facts

The Applicant was charged with the offences of Cyber Harassment C/S 24(1),
(2),(a) of the Computer Misuse Act 2011 on count 1 and Offensive
Communication C/S 25 of the Computer Misuse Act 2011 on count 2. The
applicant was arraigned before the learned trial magistrate Grade ONE sitting
at the chief magistrate court at Buganda road where the magistrate found him
guilty to both counts and convicted him on his own plea of guilty and sentenced
him to a term of imprisonment of 3 years and 8 months on count 1 and 2
respectively. The applicant appealed against the decision to the high court where
the learned Justice Kyaligonza Winnie found that the trial judge never followed
the right procedure of plea taking since he entered a plea of guilty based on a
partial admission and therefore found that the applicant was wrongly convicted,
despite these findings the learned judge went ahead and upheld the decision of
the trial court and its now against this decision that the applicant appeals in the
court of Appeal.

LAW APPLICABLE

1. The 1995 Constitution Of The Republic Of Uganda

2. The Judicature Act Cap 120
3. The Trial On Indictment Act Cap 23
4. The Criminal Procedure Code Act Cap 116
5. The Magistrates Court Act Cap 16
6. The Evidence Act Cap6
7. The Judicature (Criminal Procedure) (Application) Rules Si 13-8

ISSUES

1. Whether Kunihira Vicent has an interim remedy available to him in the

circumstances
2. What is the forum and documents needed to achieve the desired remedy?
3. Whether Kunihira Vicent has any substantive remedy available to him in
the circumstances?
4. What are the merits of the second appeal in the circumstances?
5. What are the necessary documents in the circumstances?
6. What are the possible arguments that the appellant will rely upon at
hearing?
7. What are the respondents anticipated reply to the arguments of the
appellant?
ISSUE ONE: Whether Kunihira Vicent has an interim remedy available to
him in the circumstances

Bail pending appeal

Under Section 40 (2) of the Criminal Procedure Code Act, the appellate court
may, if it sees fit, admit an appellant to bail pending the determination of his or
her appeal; but when a magistrate’s court refuses to release a person on bail,
that person may apply for bail to the appellate court.

This means that the application shall be made to the Court of Appeal of Uganda
from the decision of the High court.

Discretion;

Bail pending appeal is granted at the discretion of court. There is no automatic

right to bail, the right cited under ARTICLE 23[6] of the 1995 Constitution is only
limited to the right to apply for Bail. Court is seized with the discretion to grant
or not to grant bail. However, this discretion must be exercised judiciously and
each case must be determined on its own merits. Per Keneth Kakuru Justice of
appeal in Katabarirwe Alfred &Anor v Uganda CR. AppnNO.165 OF 2019

The presumption of innocence

As a convicted offender he lost his presumption of innocence

BASSIKU THOMAS V UGANDA SUPREME COURT CRIMMINAL APPEAL NO.

33 OF 2011, it was held that it should also be further noted that the
presumption of innocence guaranteed to a person accused of a crime ends when
the accused person is found by an impartial court guilty of the offence he or she
is charged with. from this point onward the interests of justice demand that the
courts should not only take into account the rights of the convicted person, but
also the interest of the victim and the society as a whole.}

Grounds of bail pending appeal

In an application for bail pending appeal the applicants are required to prove to
court strong and exceptional circumstances that justify the grant of that
application.

An applicant for bail pending appeal bears the burden of proving that there are
exceptional reasons that warrant his or her release on bail

IGAMU JOANITA V UGANDA COURT OF APPEAL CRIMMINAL APPEAL

NO.107/2013 it was observed and held as follows (at page 15-18 of the Ruling)
the conditions set out in Arvind Patel Case are not exhaustive, each case must
be determined on its own merits. in addition to the conditions set out in Arvind
Patel case for granting bail pending appeal, court ought to also take into account
the provisions of sections 15{1},15{2}and 15{3} of the T.I.A.

These are the sections that deal with the conditions for grant of bail in the High
court

Exceptional circumstances are not only a rule of practice in bail pending appeal
but a requirement of the law, the law that defines exceptional circumstances is
in section 15(3) of the T.I.A Cap 23.

In this section exceptional circumstances mean the following;

1. Grave illness certified by a medical officer of the prison or other institution
or place where the accused is detained as being incapable of adequate
medical treatment while the accused is in custody.
2. The Certificate of no objection from the DPP.
3. . Infancy or advanced age of the accused.

Further in the case of ARVIND PATEL V UGANDA SCCA NO.9 OF 2001 court
looked at the following grounds to constitute exceptional circumstances;

1. The character of the applicant

In looking at the character of the applicant court considered at observing
whether the applicant is a first time offender and whether he complied with
the bail conditions granted by the courts below
2. Whether the applicant is a first time offender or not.
3. Whether the offence of which the applicant was convicted involved
personal violence.
4. The appeal is not frivolous and has a reasonable possibility of success

Here court considered looking at the memorandum of appeal, the record of

appeal and the judgment of court from which the appeal emanated.

5. The possibility of substantial delay in determination of the appeal

It’s not necessary that all these conditions are present in every case, a
combination of two or more maybe sufficient
In an application for bail pending appeal, the applicants are required to satisfy
the court that exceptional circumstances exist for the grant of the bail pending
appeal.

Exceptional circumstances are not limited to those set out in the T.I.A but rather
court has discretion to determine what constitutes exceptional circumstance as
per Justice KAKURU in Katabarirwe & anor v Uganda criminal application
no.165 of 2019
ISSUE TWO: What is the forum and documents needed to achieve the
desired remedy?

PROCEDURE AND FORUM

FORUM

The forum is the Court Of Appeal of Uganda at Kampala

PROCEDURE

The application for bail pending appeal shall be by Notice of Motion supported
by an affidavit as provided under Rule 3 Judicature (Criminal Procedure)
(Applications) Rules S.I 13-8

Rule 43 of the Court of Appeal Rules, the application is by way of Notice of

Motion supported by affidavit specifying the grounds for the application.

The Record of proceedings and the judgment of the Court from which the appeal
is sought ought to be attached to the application to enable court assess the
possibility of success of the appeal.

The application is lodged after the Notice of appeal has been lodged. It is heard
by a single judge as per rule 53 of the Judicature (Court of Appeal Rules).

Rule 55, where the application is rejected, the applicant can make a reference
to court.
THE DOCUMENTS

NOTICE OF MOTION

THE REPEBLIC OF UGANDA

THE COURT OF APPEAL OF UGANDA AT KAMPALA

CRIMINAL APPLICATION NO 20 OF 2020

(ARISING FROM CRIMINAL APPEAL NO.14 OF 2020)

KUNIHIRA
VINCENT..........................................................................APPLICANT
VERSUS
UGANDA.......................................................................RESPONDENT

NOTICE OF MOTION
(Under 40(2) of the Criminal Procedure Code Act and Rule 43(1) of the
Judicature Court of Appeal Rules Directions SI 13-10)

TAKE NOTICE that this Honorable court shall be moved on the 7 day of
September, 2020 or soon thereafter as the applicant will be heard on an
application for orders that.

(a) The applicant be released on and or granted bail pending appeal in

Criminal application No. 20 of 2020 on such Orders, terms and conditions
as the court shall deem fit and proper in the circumstances.
TAKE FURTHER NOTICE that the grounds of this Application are contained in
the affidavit of KUNIHIRA VINCENT, the applicant herein, which shall be
read and relied on at the hearing but briefly the grounds are;

1. That the applicant was charged and convicted of cyber harassment c/s
24(1) (2)(a) and offensive communication c/s 25 of the computer misuse
Act 2011, the appellate Court upheld the judgment and decision of the
trial court on the 28th day of August 2020.
2. That the applicant has lodged a notice of appeal and memorandum of
appeal against the whole decision which has high chances of success.
3. That it is in the interest of justice that this application is granted.

Dated at KAMPALA this 9th day of September 2020.

.........................................................................
COUNSEL FOR THE APPLICANT

Lodged in the court Registry this 9 day of SEPTEMBER.2020.

..................................
DEPUTY REGISTRAR
Affidavit in support of the notice of motion

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

CRIMINAL APPLICATION NO 20 OF 2020.

(ARISING FROM CRIMINAL APPEAL NO14 OF 2020)

KUNIHIRA VINCENT................................................APPLICANT
VERSUS
UGANDA...............................................................RESPONDENT
AFFIDAVIT IN SUPPORT

I KUNIHIRA VINCENT of C/O MS E2 & CO.ADVOCATES P O BOX 7117,

KAMPALA do solemnly make oath and state as follows;

1. I am a male adult Ugandan of sound mind, the applicant/convict herein

and depone this affidavit in that capacity.
2. That the applicant was charged and convicted to 3 years and 8 months
in prison for the offence of Cyber Harassment contrary to section 24(1),
2(a) of the Computer Misuse Act of 2011 and Offensive Communication
Contrary to section 25 of the Computer Misuse Act of 2011 which
sentence was upheld by High Court on 28th August 2020. A copy of
the judgment is hereto attached and marked annexure “A”
3. That on the 24th day of June 2020, the applicant filed a notice of appeal
against the decision of the appellate court to this Honorable Court. A
copy of the notice of appeal is hereto attached and annexed as
annexure” B”.
4. That on the 7th day of July 2020, the applicant filed a memorandum of
appeal to this honorable court which I verily believe has high chances
of success. A copy of the memorandum of appeal is hereto attached
and marked Annexture “C”.
5. That the applicant is a citizen of Uganda with permanent place of
residence within Naguru go-down which is in the Jurisdiction of this
Honorable court. A copy of the National ID is hereto attached and
marked as annexture “D”.
6. That the applicant has substantial sureties who will make sure that the
applicant attends court whenever he will be needed.
7. That the applicant is sickly, he has diabetes class two which cannot be
managed by the prison doctors since the prison facilities have no
medication to such, if the application is granted the applicant will have
great chances of pursuing his appeal alive. A copy of the certified
medical report from the prison’s doctor in charge is hereto
attached and marked annexture “E”
8. That there is a likelihood that the appeal will take long to be disposed
of by this Honorable Court.
9. That the applicant had earlier been released on bail he never
absconded.
10. That it is fair, reasonable and in the interest of justice and thus
application be granted in so far as it’s a billable offence.
11. That whatever I have stated herein is true and correct to the best of
my knowledge and belief and save for those whose source I have
disclosed. Sworn at Kampala on the. 7th day of September 2020.
By the said; KUNIHIRA VINCENT

DEPONENT

BEFOREME

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

JUSTICE OF PEACE

Drawn and Filed by;

M/S E2 and Co. Advocates

ISSUE 3: Whether Kunihira Vicent has any substantive remedy available to
him in the circumstances?

The substantive remedy available to our client is an appeal to the Court of

Appeal. Since the appellant has already appealed the decision of the trial
magistrate by a first appeal to the High Court, this will be a second appeal. In
the case of Attorney General V Shah [1971] E.A P.50, Spry, Ag. President
held that the right of appeal from a judicial decision is not an automatic right
but must be provided for by a statute.

Article 134(2) of the Constitution of the Republic of Uganda, 1995 as amended

provides that an appeal shall lie to the court of appeal from such decisions of the
High Court as maybe prescribed by the law. S. 45 Criminal Procedure Code Act
Cap 116 provides for Second appeals. It is to the effect that either party to an
appeal from a Magistrate’s court may appeal against the decision of the High
Court in its appellate jurisdiction to the Court of Appeal on a matter of law, not
including severity of sentence, but not on a matter of fact or of mixed fact and
law.

In the case of Nalukenge Mildred –vs- Uganda (Court of Appeal Criminal

Appeal No. 670 of 2008) it was held that in a second appeal, the appellant is
barred from appealing to the court on matters of fact or of mixed facts and law
but only appeals on matters of law. This is also the import of Section 45(1) of the
Criminal Procedure Code Act, Cap. 116
ISSUE 4: What are the merits of the second appeal in the circumstances?

Ground 1

The learned appellate judge erred in law when she upheld the conviction
and sentence of the appellant despite finding that the wrong procedure had
been adopted in recording a plea of guilty.

The procedure for recording a plea of guilty is well explained in the case of Adan
Vs Republic (1973) EA 445. In that case, the court stated as follows:-

“When a person is charged with an offence, the charge and the particulars
thereof should be read out to him, so far as possible in his own language,
but if that is not possible, in the language which he can speak and
understand. Thereafter the Court should explain to him the essential
ingredients of the charge and he should be asked if he admits them. If he
does admit his answer should be recorded as nearly as possible in his own
words and then plea of guilty formally entered. The prosecutor should then
be asked to state the facts of the case and the accused be given an
opportunity to dispute or explain the facts or to add any relevant facts he
may wish the court to know. If the accused does not agree with the facts
as stated by the prosecutor or introduces new facts which, if true might
raise a question as to his guilt, a change of plea to one of not guilty should
be recorded and the trial should proceed. If the accused does not dispute
the alleged facts in any material respect, a conviction should be recorded
and further facts relating to the question of sentence should be given before
sentence is passed”
At the trial in the Magistrates court, the trial magistrate did not follow this
procedure. According to the record of proceedings, she based on the partial
admission of the appellant asking for forgiveness from the complainant to enter
a plea of guilty. Taking into consideration the above authorities and the
appellant’s counsel’s submission on the matter, the appellate judge reached the
conclusion that this plea of guilty was not recorded properly and was hence
illegal.

However, the learned appellate judge proceeded to uphold the conviction of the
trial court. In her own words, she held that

“...considering the gravity of the offence, status of the complainant and

public interest, this court reserves the power to exhaustively scrutinize
and evaluate evidence in order to make an independent finding. As such I
am persuaded by the testimony of the complainant and will accordingly
uphold the judgment and decision of the trial court.”

The learned trial judge misdirected herself on the duty of the second appellate
court to re-evaluate the evidence in order to make an independent finding hence
arriving at a wrong decision to uphold the conviction which was inconsistent
with her finding that the plea of guilty was illegal. In the case of Kifamunte v
Uganda (SC Cr App No. 10 of 1997), the Supreme Court explained that the duty
of the first appellate court is to review the evidence of the case, reconsider the
materials before the trial judge and make up its own mind not disregarding the
judgment appealed from but carefully weighing and considering it. The learned
appellate judge failed to scrutinize the evidence on record and merely found the
testimony of the complainant credible without re-evaluating it.
In addition, where the first appellate Court concludes that there was an error
and that the same caused a miscarriage of justice, then the first appellate Court
should intervene by allowing the appeal. However, the learned appellate judge
upheld the decision of the trial magistrate thereby occasioning a miscarriage of
justice.

Ground 2

The Learned appellate judge erred in law when she sentenced the appellant
in total disregard of the period spent on remand thereby occasioning a
miscarriage of justice

It is a constitutional requirement for a court to take into consideration the time

spent on remand when sentencing an accused to a term of imprisonment. Article
23(8) of the Constitution of Uganda, 1995 provides that:
‘Where a person is convicted and sentenced to a term of imprisonment for
an offence, any period he or she spends in lawful custody in respect of the
offence before the completion of his or her trial shall be taken into account
in imposing the term of imprisonment.’
The Supreme Court has provided further guidance on the matter in the case of
Rwabugande Moses vs. Uganda (SCCA 25/2014), where it held that:
“It is our view that the taking into account of the period spent on remand
by a court is necessarily arithmetical. This is because the period is known
with certainty and precision; consideration of the remand period should
therefore necessarily mean reducing or subtracting that period from the
final sentence. That period spent in lawful custody prior to the trial must
be specifically credited to an accused”
Furthermore, in the case of Abelle Asuman v Uganda (CRIMINAL APPEAL
NO.66 of 2016), the supreme court has held that the sentencing court must
clearly demonstrate that it has taken into account the period spent on remand
to the credit of the convict and an appellate court will not interfere with the
sentence merely because the trial court used different words in their judgment
or missed to state that they deducted the period spent on remand as these may
be issues of style for which a lower Court would not be faulted. However, it is
clear from the judgement of His Worship Joseph Mabirizi (the trial Magistrate)
that he didn’t consider the time spent on remand anywhere in his judgement.
Similarly, the appellate judge didn’t consider this ground of appeal and simply
upheld the conviction and sentence of the trial court.

Therefore, this illegality occasioned a miscarriage of justice since it failed to

comply with Article 23(8) of the Constitution of Uganda, 1995.

1. Draft the necessary documents.

Documents
1. Notice of Appeal
Rule 60(3); A notice of appeal shall be substantially in the Form B in the First
Schedule to these Rules and shall be signed by or on behalf of the appellant
2. Memorandum of Appeal.
Rule 66 (4); A memorandum of appeal shall be substantially in Form C in the
First Schedule to these Rules, and shall be signed by or on behalf of the
appellant.
ISSUE 5: What are the necessary documents in the circumstances?

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CRIMINAL APPEAL N0_____OF 2020
(ARISING CRIMINAL APPEAL NO.14 OF 2020, ARISING

FROM BUGANDA ROAD CRIMINAL CASE NO. 33 OF 2020)

KUNIHIRA VINCENT :::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

NOTICE OF APPEAL
Take notice that the appellant appeals to the Court Of Appeal of Uganda at
Kampala against the decision of Hon. Lady Justice Kyaligonza Winnie in
Criminal Appeal No.14 of 2020 dated 28th August, 2020, in which the appellant
was convicted of the offences of Cyber Harassment Contrary to Sections 24(1),
(2) (a) of the Computer Misuse Act 2011 and Offensive Communication contrary
to Sections 25 of The Computer Misuse Act 2011 and sentenced to a term of
imprisonment of 3 years and 8 months respectively.
The appeal is against the conviction of the appellant.
The appellant desires to attend the hearing of the appeal.
Dated this 9th day of September, 2020
……………………………………………………………..
COUNSEL FOR THE APPELLANT
LODGED in the Registry this ……………. day of ………. 2020.
…………………………………………..
REGISTRAR
Drawn & filed by:
Okwaimungu & Co Advocates
Plot 111, Jinja Road
P.O. Box 111,
Kampala

CC: The Registrar

TO BE SERVED UPON: The Directorate of Public Prosecutions
THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CRIMINAL APPEAL N0_____OF 2020
(ARISING CRIMINAL APPEAL NO.14 OF 2020, ARISING

FROM BUGANDA ROAD CRIMINAL CASE NO. 33 OF 2020)

KUNIHIRA VINCENT:::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

MEMORANDUM OF APPEAL
The Appellant being dissatisfied with the Judgment of and the decision of HON.
LADY JUSTICE KYALIGONZA WINNIE sitting as first appellate judge in the
High Court of Uganda at Kampala Criminal Appeal No.14 Of 2020, dated 28th
of August 2020 in which the appellant was convicted of the offences of Cyber
harassment Contrary to Sections 24(1), (2) (a) of the Computer Misuse Act 2011
and Offensive Communication Contrary to Sections 25 of The Computer Misuse
Act 2011 and sentenced to a term of imprisonment of 3 years and 8 months
respectively, appeals to the Court Of Appeal of Uganda against the conviction on
the following grounds;
1. The learned appellate judge erred in law when she upheld the
conviction and sentence of the appellant despite finding that the
wrong procedure had been adopted in recording a plea of guilty.
2. The Learned appellate judge erred in law when she sentenced the
appellant in total disregard of the period spent on remand thereby
occasioning a miscarriage of justice

WHEREFORE; it is proposed to ask this Honorable court to order that;

1. The appeal be allowed
2. The conviction be quashed, sentence set aside and the appellant be
set free.
Dated at Kampala this 9th day of September 2020

……………………………………….
COUNSEL FOR THE APPELLANT
Lodged in The Registry on this 9th day of September 2020,
……………………………………….
REGISTRAR
Drawn & filed by:
Okwaimungu & Co Advocates
Plot 111, Jinja Road
P.O. Box 111,
Kampala
ISSUE 6: What are the possible arguments that the appellant will rely upon
at hearing?

Appellant’s written submission.

May it please this Honourable court, This is a second appeal by the appellant
Kunihira Vincent against the decision of Hon. Justice Kyaligonza Winnie in
Criminal Appeal No. 014 of 2020 arising from the chief magistrate’s court of
Kampala at Buganda Road Cr 33/2020 in Kunihira Vincent V Uganda.

Kunihira Vincent the appellant appealed to the High Court against his conviction
in the chief magistrates court at Buganda Road for the offences of Cyber
Harassment and offensive Communication contrary to sections 2491)(2)(a) and
25 of the computer misuse act and the subsequent sentence of 3 years and 8
years respectively to run concurrently. The High Court on the 28th day of august
2020 dismissed his appeal on grounds that it had no merits after confirming that
the procedure for taking the plea of guilty had procedural irregularities and
consequently failed to conduct a retrial to that effect. The appellant was further
committed to prison to serve the remaining period of the sentence, a decision
which the convict appeals against.

Grounds for the appeal

1. The learned justice of High Court erred in law when she failed to order
a re-trial having confirmed that the plea taking contained procedural
irregularities and thereby occasioning a miscarriage of justice.

My Lord, The duty of the second appellate court was held in the case of
Kifamunte Henry Vs Uganda SC Cr.App. No. 10 of 1997 to determine if the
first appellate court re-evaluated the evidence on record and properly considered
the judgment of the trial judge. The law on retrial is that in an appeal; the court
may also order a retrial. S, 34(2)(a) of the Criminal Procedure Code Act provides
that the appellate court on any appeal may reverse the findings and sentence,
and acquit or discharge the appellant, or order him or her to be tried or retried
by a court of competent jurisdiction. Retrials are discretionary and should be
made judiciously and the accused should not be prejudiced but rather be
ordered in the interest of justice as noted in the case of Fatehali Manji v The
Republic [1966].

It was further held in the case of Rev. Father Santos Waokra v Uganda, C.A
Criminal Appeal No.204 of 2012 that overriding purpose of a retrial is to ensure
that the cause of justice is done in a case before court. It was stipulated held in
this very case that a serious error committed as to the conduct of a trial or the
discovery of a new evidence which was not obtainable at the trial are major
considerations for ordering trial. The court that has tried a case should be able
to correct the error as to the manner of the conduct of the trial.

My Lord, the learned appellate judge selectively relied on the case of Rev Father
Santo Waokra V Uganda CA No 204 of 2012 which she stated that applied to
the instant case. However she failed to consider all the considerations in the case
which included ordering a retrial where the trial was defective or illegal, which
applies to the case at hand.

This therefore was a proper case in which a retrial should have been ordered as
the appellate judge herself found that the procedural steps in Adan v Republic
(1973) EA 445 were vital and omitting them amounted to an illegality. And these
procedures as stated by the court were that when a person is charged with an
offence, the charge and particulars thereof should be read out to him, so far as
possible in his own his language which he can speak understand and the court
should therefor explain to him the essential ingredients of the charge and he
should be asked if he admits them. If he does admit his answer should be
recorded down as nearly as possible in his own words and the plea of guilty
formally entered and the prosecutor should then be asked to state the facts of
the case and the accused be given an opportunity to dispute or explain the facts
or to add any relevant facts as stated by the prosecutor or introduces new facts
which if true might raise a question as to his quilt, a change of plea to one of not
guilty should.

She also went ahead and confirmed this position in the case of Uganda V kilama
Geoffrey [1994-95] HCB 38, it was held that in order for a plea of guilty to be
entered the words of the accused in answer to the charge, admitting all the
ingredients of the offence charged must be recorded.

The consideration for ordering a retrial is when the original trial was illegal or
defective as emphasized in the case of Dharamsi Sumar v R (1964) which is
clearly portrayed in the instant facts, The court must however first investigate
whether the irregularity is reason enough to warrant an order for retrial as stated
in the case of Ratilal Shakur (1958) EA

The judge clearly confirmed these positions of the various laws in regards to the
procedure for recording of pleas and affirmed on page 6 of the record of the
proceedings that ground 1 of the appeal had merit since the procedural steps
were vital and omitting them amounted to an illegal. However she still went
ahead to confirm the conviction of the appellant by the magistrate’s court instead
of conducting a fresh trial for reasons that the considerations for ordering a
retrial stipulated in the case of Rev. Father Santo Wapokr V Uganda (supra)
and stated that due to the seriousness of the offence the status of the
complainant and public interest, the case was not warranting a retrial as
stipulated in paragraph 8 of the record. Thereby occasion miscarriage of justice.

In conclusion, the failure to order a retrial by the appellate judge amounted to

sanctioning of an illegality which in turn is prejudicial to the appellate hence
occasioning miscarriage of justice. The court therefor ought to have exercised its
discretion of ordering a retrial.

We therefore pray that this Honorable court;

-Allows this appeal

-Quashes the conviction against the accused

-Sets aside the sentence imposed on the accused

2. The learned appellate judge erred in law when she sentenced the
appellant without considering the period spent on remand.

My Lord, the Constitution of the Republic of Uganda, Article 23(8) of the

constitution is to the effect that where a person is convicted and sentenced to a
term of imprisonment for an offence, any period he or she spends in lawful
custody in respect of the offence before the completion of his or her trial shall be
taken into account in imposing a term of imprisonment.

This position of the law was stated in the cases Korobe Joseph Vs Uganda CA
No 0243 of 2013, where court stated that taking into account of the remand
period is a constitutional requirement under Art 23(8) of the constitution and
failure to comply with the said provision renders the sentence a nullity and that
sentence ought to be set aside.
My Lord, It’s a principle of law that an appellate court need not to interfere with
the sentence of a trial court unless the sentence is manifestly harsh and causes
a miscarriage of justice. It was stated in the case of Kiwalabye Benard v Uganda
Criminal Appeal No. 143 of 2001 that when an appellate court decides to
interfere with the sentence of the principles governing sentencing. On these
principles is that the remand period ought to be considered, in the facts of this
case the appellate court decided to reduce the time sentence of the accused to
27 years and it did not consider the remand period and hence passing an illegal
sentence and this raised a ground for an appeal.

In relating to the facts at hand, the appellate judge committed the accused to
serve the remaining period of his sentence in prison that was from 28/08/2020
without considering the period spent on remand or mitigating factors to
constitute a valid sentence which was illegal and in contravention of article 23(8)
of the 1995 constitution of the republic of Uganda.

In conclusion, with regards to this ground we pray that this appellate court finds
the sentence of the appellant illegal and in contravention of the constitution and
the appellate therefor be acquitted.
ISSUE 7: What are the respondent’s anticipated reply to the arguments of
the appellant?

This is an appeal against the ruling of the High Court of Uganda at Kampala
Criminal Appeal No.

14/2020 in which the appellant Judge maintained the decision of the trial court
at the Chief Magistrate’s Court of Kampala at Buganda Road CR 33/2020 by
convicting the Appellant with the offence of Cyber Harassment C/S 24(1), (2), (a)
of the Computer Misuse Act 2011 and of Offensive Communication C/S 25 of
the same Act, and the subsequent sentence of 3 years and 8 months respectively
to run recurrently. The Appellant was unhappy with this ruling and hence this
appeal.

The grounds of the Appeal are as follows;

1. The Learned Justice of the High Court erred in law when she failed to
consider the conditions for ordering a re-trial and convicted the Appellant
hence occasioning a miscarriage of justice.
The duty of the Second Appellant Court.

In Kifamunte Henry Vs Uganda SC Cr. App. No. 10 of 1997 it was held that
the duty of the second appellate court is to determine if the first appellate court
re-evaluated the evidence on record and properly considered the judgment of the
trial judge.
The law on retrial.

Section 34(2) (a) of the Criminal Procedure Code Act provides that;

(2) Subject to subjection (1) the appellate court on any appeal may-
(a) Reverse the finding and sentence, and acquit or discharge the appellant, or
order him or her to be tried or retried by a court of competent jurisdiction;
The case of Fatehali Manji vs Republic (1966) EA 343 sets out the principles
to be followed by court before a retrial can be ordered. For a retrial to be ordered,
there must be an irregularity.
Also in the case of AHMED ALI ADHARAMSI SUMAR vs R (1964) EA 481 it
was noted that one of the considerations for ordering a retrial is when the original
trail was illegal or defective.

The Appellant judge noted and agreed with the principles laid down in the case
of Adan Vs Republic (1973) EA. 445 in as far as the procedure followed in
recording the plea of guilty. She had this to say on page 49 and 50;
“From the record, particularly at page 8 and 9, it is clear that the
Appellant sought to change from his earlier pleas of not guilty recorded
at page 1 of the record of proceedings. Be that as it may, it was
procedurally wrong for the learned trial magistrate to enter a plea of
guilty at page 9 based on the partial admission and asking for forgiveness
from the complainant at page 8 of the record. What the learned trial
Magistrate should have done is have the particulars thereof be read out
to the Appellant, so far as possible in his own language or in the language
which he can speak and understand and thereafter the Court having
explained to him the essential ingredients of the charges on both count I
and II whereof the Appellant should have been asked whether or not he
admitted to the facts. Then had he admitted, his answer should have been
recorded as nearly as possible in his own words and then plea of guilty
formally entered. The prosecutor would then be asked to state the facts of
the case and the accused be given an opportunity to dispute or explain
the facts or to add any relevant facts he may have for the court to know.
Had it turned out that the accused did not agree with the facts as stated
by the prosecutor or introduced new facts which, if true would have raised
questions as to his guilt, a plea of not guilty would be recorded and the
trial would have to proceed? Had the accused not disputed the alleged
facts in any material respect, a conviction should have been recorded and
further facts relating to sentencing given before passing the sentence. I
hasten to add that the above procedural steps were very vital and omitting
them was not only prejudicial to the accused now appellant at trial but
also amounted to an illegality.”

This therefore leads us to the conclusion that the appellant judge performed her
duty of reevaluating the evidence of the trail court and thus came to the
conclusion that there was an illegality in the proceedings at the trail court.

However it should be noted that an order for a retrial is as a result of the

judicious exercise of the Courts discretion. This discretion must be exercised
with great care and not randomly, but upon principles that have been developed
over by the courts. See Fatehali Manji vs Republic (supra)

Furthermore, retrial involves the re-calling of witnesses some of whom may have
died and others may not be easily traceable. The memory of those witnesses may
have lapsed and other may have lost interest in the matter. The exhibits may
have been tempered with, lost or misplaced. Retrial also increases case back
backlog in courts. A retrial therefore ought to be ordered only in Compelling
circumstances. See VICENT NTAMBI vs UGANDA C.AC.A No. 78/2012

According to the judgment of the Appellant court, Hon. Lady Justice Kyaligonza
Winnie noted on page 51 and 52 that;
“I am not persuaded by the learned State Attorney’s argument that
ordering a re-trial in the circumstances of this case would not in any way
occasion any injustice or result into a miscarriage of justice.

However, considering the gravity of the offence, status of the complainant

and public interest, this court reserves the power to exhaustively
scrutinize and evaluate evidence in order to make an independent finding.
As such I am persuaded by the testimony of the complainant and will
accordingly uphold the judgement and decision of the trial court.

In the result, this appeal has no merit and is accordingly dismissed.”

In conclusion therefore, appellant judge exercised her discretion judiciously. She

found that a retrial would occasion a miscarriage of justice considering the
aforementioned circumstances as clearly highlighted in the case of Vicent
Ntambi vs Uganda (supra)
This court should therefore uphold the findings of the appellant judge and
dismiss the appeal.

Ground 2

The Appellant Judge of the High Court erred in law when he imposed an illegal
sentence without putting into consideration the period spent on remand.

On the second ground the respondent opt to concede because the law is very
clear that the time spent on remand should be deducted from the period of time
ordered at sentence.
Article 23(8) of the Constitution of Uganda clearly states that where a person
is convicted and sentenced to a term of imprisonment for an offence before, any
period he/she spends in lawful custody in respect of the offence before the
completion of his or her trail shall be taken into account in imposing the term of
imprisonment.

The case of Rwabugande Moses vs Uganda SCACA 25/2014. It was held that
the taking into account of the period spent on remand by a court is necessarily
arithmetical. This is because the period is known with certainty from the final
sentence. That period spent in lawful custody prior to the trial must be
specifically credited to an accused.

In line with the facts at hand, the accused now the appellant was arrest by the
police when he accepted to meet with the complainant on 11/06/2020. The
judgment of the trial court was given on 18/06/2020. Therefore accordingly, the
time spent on remand ought to have been considered.

In conclusion therefore we call upon this court to let the file be transmitted to
the lower court so that the appropriate sentence can be passed.