The Supreme Court has faulted the Court of Appeal for discharging a man convicted of murder after the High Court lost the written judgment explaining his conviction, ruling that the case should instead have been returned to the trial court for a fresh judgment based on the evidence already on record.
In a declaratory judgment in Uganda v Kaye Samuel, the Supreme Court justices held that although the Court of Appeal was right to set aside the conviction and decline to order a retrial, it erred in discharging the convict without considering the option of directing the High Court to prepare another judgment.
“The more appropriate course ought to have been for the Court of Appeal to remit the case file back to the High Court for judgment writing,” the justices ruled.
The case arose from the murder of Nakanyike Topista, who was killed on April 3, 2009, at Munyolwe Village in Nakaseke District following a dispute over land ownership.
According to prosecution evidence presented before the High Court in Luwero, Kaye and another man attacked Nakanyike while she was cultivating her garden, assaulting her with kicks, bodily blows and a blunt weapon.
She collapsed during the attack and died shortly afterwards. A postmortem report attributed her death to strangulation and beatings.
The High Court, presided over by Justice Kabiito, convicted Kaye of murder and sentenced him to 30 years in prison following a sentencing hearing.
However, when Kaye sought to appeal against his conviction, he was unable to obtain the written judgment setting out the trial judge’s reasons for finding him guilty.
Although court proceedings indicated that the judge had delivered the judgment in open court on November 8, 2011, the document was never made available to either the prosecution or the convict.
Kaye subsequently appealed to the Court of Appeal, arguing that the failure to provide the judgment had occasioned a miscarriage of justice.
The Court of Appeal set aside his conviction and sentence, holding that the missing judgment made it impossible to properly determine his appeal. It also declined to order a retrial, citing concerns that the passage of approximately 12 years could have affected witnesses’ memories and undermined the fairness of a fresh trial.
The court consequently ordered his discharge from custody.
The Director of Public Prosecutions challenged that decision before the Supreme Court, arguing that the Court of Appeal had placed the interests of the convict above those of the victim, her family and society.
In its judgment, the Supreme Court emphasised that a written judgment is a mandatory requirement in criminal trials conducted under indictment.
The justices relied on Section 86 of the Trial on Indictments Act, which requires a judgment to set out the issues for determination, the court’s findings on those issues and the reasons for its decisions.
The court held that failure to prepare or preserve a written judgment on the court record renders the trial court’s decision unlawful and liable to be set aside.
“We are of the view that Section 86 of the TIA creates a mandatory rule requiring the High Court to produce a written judgment to explain its decision in every indictment trial,” the justices stated.
The Supreme Court also rejected the prosecution’s argument that the Court of Appeal could simply re-evaluate the evidence and determine whether Kaye was guilty despite the missing judgment.
According to the justices, an appellate court must use the trial judge’s judgment as a point of reference when reviewing a conviction.
“We hold the view that it would be erroneous for a first appellate Court to consider a convict’s appeal in the absence of a written judgment of the trial Court,” the judgment states.
The justices explained that allowing the Court of Appeal to assess the evidence without the trial judgment would effectively turn it into a trial court.
The Supreme Court agreed with the Court of Appeal that a retrial would not have been appropriate under the circumstances.
It relied on principles established in Fatehali Manji v The Republic, which held that a retrial should be ordered only where the interests of justice require it and where doing so would not cause injustice to the accused.
The justices noted that the Court of Appeal had been concerned that the lengthy period since the original trial could have eroded witnesses’ memories or affected the reliability of their evidence.
“We find these findings of the Court of Appeal reasonable and we think this was not an appropriate case to order a retrial,” the Supreme Court ruled.
However, the justices questioned the conclusion that discharging Kaye was the only alternative once a retrial had been ruled out.
They noted that Rule 32(1) of the Court of Appeal Rules empowers the court to remit proceedings to the High Court with appropriate directions.
Since the original trial proceedings and evidence remained available, the Supreme Court said the Court of Appeal should have returned the case file to the High Court for judgment writing instead of discharging Kaye.
The justices also said the decision to discharge him failed to adequately consider the interests of the deceased’s family and the wider society.
“This is a case where the compelling evidence on record confirms the involvement of the respondent in the murder of the deceased and the interests of justice required bringing him to account for committing a serious crime,” the judgment states.
The Supreme Court allowed the appeal by the Director of Public Prosecutions and made four substantive declarations concerning the handling of cases in which trial court judgments go missing.
It ruled that the Court of Appeal was right to set aside Kaye’s conviction and sentence because the written judgment explaining his conviction was missing. It also upheld the decision not to order a retrial.
However, the justices declared that the Court of Appeal erred in discharging him and should instead have remitted the case file to the High Court for judgment writing.
The Supreme Court clarified that its declaratory judgment does not reverse the Court of Appeal’s order discharging Kaye from custody.
“In accordance with Section 5 (1) (c) of the Judicature Act, Cap. 16, this declaratory judgment does not reverse the Court of Appeal’s decision to discharge the respondent from custody after setting aside his murder conviction and sentence,” the court stated.
The ruling was delivered by a panel comprising Justices Lillian Tibatemwa-Ekirikubinza, Percy Night Tuhaise, Mike J. Chibita, Elizabeth Musoke and Monica Kalyegira Mugenyi.
The decision highlights the consequences of losing critical court records and underscores the importance of preparing, maintaining and preserving written judgments, particularly in serious criminal cases involving appeals against conviction.
