In The Case of Kiwanuka Eric Kibuuka……Criminal Appeal No.378 Of 2017

This case was decided on 25thJuly 2019 in the court of appeal by Hon justice Cheborion Barishaki, Hon. Justice Stephen Musoota and Lady Justice Night Percy Tuhaise.

The case discusses the law on absence of assessors in a criminal trial.

The background of the case was that the appellant was convicted of murder contrary to Section 188 and 189 of the Penal Code Act and aggravated robbery contrary to S.285 and S.286(2) of the Penal Code Act and sentenced to 35 years’ imprisonment on both counts. He was dissatisfied with the judgment of the trial court and appealed on the grounds that the trial judge erred in law when she relied on inconclusive and unsatisfactory circumstantial evidence to convict him. He also argued that the trial judge misdirected herself as to the interpretation and application of the doctrine of recent possession. The other ground was that the sentence passed was ambiguous, illegal and manifestly harsh and excessive. The other ground was that the missing assessor had been replaced in the middle of trial.

The judges in resolving the grounds for appeal emphasized the law on absence of assessors under S.69 of the Trial on Indictment Act which provides that if more than one of the assessors are prevented from attending or absent themselves, the proceedings shall any time before the verdict, any assessor is from sufficient cause prevented from attending throughout the trial, or absents himself or herself and it is not practicable immediately to enforce his or her attendance, the trial shall proceed with the aid of the other assessors.

The judges cited the decision in Byaruhanga Fodori V U COA Criminal Appeal No.24 of 1999 Where it was held that “we must hasten to add that we do not condone the failure of trial courts to strictly adhere to provisions of the trial on indictments act regarding the assessors”

The judges hence found that the decision of the trial judge to replace an assessor after the prosecution had closed its case and bringing in a new one at defense stage was contrary to the law and thus occasioned a miscarriage of justice and rendered the trial a mistrial.

The judges also held that in criminal trials it is preferable that evidence and submissions should be conducted viva voce so that the accused and assessors can follow the proceedings. Therefore, summing up before submissions and recording the opinion of assessors and using written submissions were incurable grave procedural irregularities.