Abooki v Uganda (Criminal Miscellaneous Application 1 of 2023) [2022] UGHC 150 (12 July 2022)

#### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL MISCELLANEOUS APPLICATION NO. 001 OF 2023 (ARISING FROM KYENJOJO CRIMINAL CASE NO. 13/2022, CRB 901/22)**

**CHANCE CLINTON ABOOKI ::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**UGANDA ::::::::::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

The applicant filed this application by way of a Notice of Motion under section 31(1) of the Criminal Procedure Code Act Cap. 122, and Rule 2 of the Judicature (Criminal Procedure) (Application) Rules SI 13-18 seeking the following orders:

- 1. An order of extension of time within which to file an appeal. - 2. Costs of this application be provided for.

#### **Background**

The applicant, Chance Clinton Abooki and one Asaba Jovet were charged with two counts of store breaking C/S 297(a) and theft C/S 254(1) and 261 of the Penal Code Act. The applicant was then tried and convicted by the Chief Magistrate of the Chief Magistrate's Court of Kyenjojo at Kyenjojo and later sentenced to two years on count one and another two years on count two, both sentences to run consecutively.

The applicant was aggrieved with the sentence, but he did file an appeal within the required 14 days. This application seeks an order granting the applicant leave to file her appeal out of time.

### **Grounds for the Application**

The grounds for the application are contained in the affidavit in support of the application deponed Chance Clinton Abooki**,** the applicant, the gist of which is that:

- (a)The applicant was interested in filing an appeal against the sentence but was ignorant of the law regarding the prescribed time within which to file a notice of appeal. - (b)The applicant was unable to file the notice of appeal while in prison and his relatives came to assist him when the 14 days had already elapsed. - (c) The delay in filing the notice of appeal is not due to dilatory conduct. - (d) The applicant was prevented by sufficient reasons to file a notice of appeal as he was in prison and his relatives could not assist. - (e) That applicant is incapable of engaging an advocate to file an appeal on his behalf. - (f) The intended appeal has high chances of success.

The respondent did not file an affidavit in reply opposing this application.

# **Representation and hearing**.

The applicant was unrepresented. The applicant filed written submissions, which I will not reproduce herein but have considered in this ruling.

## **Issues for determination**

The issue for determination by this court is whether the application raises sufficient grounds for the grant of an extension of time within which to appeal.

## **Consideration by Court**

The law on limitation of criminal appeals to this court is set out in section 28(1) of the Criminal Procedure Code Act Cap 116. It provides thus:

# *"28. Notice of appeal.*

*(1) Every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an advocate on his or her behalf, and shall be lodged with the registrar within fourteen days of the date of judgment or order from which the appeal is preferred."*

However, under section 28(6) of the Criminal Procedure Code Act, this court has discretion to extend the period within which to file an appeal provided a good cause is shown. The section provides thus:

# *"The appellate court may, for good cause shown, extend the periods mentioned in subsection (1) or (3)."*

In the determination of whether an extension of time within which to file an appeal should be granted, the court should first establish whether the applicant has a sufficient cause that prevented him or her from filing the appeal within the prescribed time. In the case *Hadondi Daniel Vs. Yolam Egondi CACA No. 67 of 2003*, the Court of Appeal held thus:

> *"It is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take the necessary steps within the prescribed time. It does not relate to making a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended."*

In *Muzamil Ayile Vs. Rose Tarapke & 6 Others (supra)* court held that what constitutes a "sufficient reason" will naturally depend on the circumstances of each case. In the case of *Boney Katatumba Vs. Waheed Karim SCCA No. 27 of 2007*, the Supreme Court held thus:

*"What constitutes 'sufficient reason' is left to the Court's unfettered discretion. In this context, the Court will accept either a reason that prevented an applicant from taking the essential step in time, or other reasons why the intended appeal should be allowed to proceed though out of time. For example, an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay. But even where the application is unduly delayed, the Court may grant the extension if shutting out the appeal may appear to cause injustice."*

In the case of *Mulindwa George William Vs. Kisubika Joseph (supra),* the Supreme Court held that the applicant seeking for extension of time has the burden of proving to the Court's satisfaction that, for sufficient reasons, it was not possible to lodge the appeal in the prescribed time. The Supreme Court went on to state that each application must be viewed by reference to the criterion of justice and that it is important to bear in mind that time limits are there to be observed, and justice may be defeated if there is laxity.

In that case, the Supreme Court enumerated several factors to be considered in an application for an extension of time. These factors include but are not limited to;- the length of delay, the reason for the delay, the possibility or chances of success, and the degree of prejudice to the other party.

The Supreme Court further observed that:

*"The discretion to grant an extension of time can be exercised in order for the appeal to be heard on its merits so that the dispute can be settled. The discretion must, however, be exercised judicially on proper analysis of the facts and the proper application of the law to the facts. In the case of the appellant."*

In the instant case, the applicant avers that he was prevented from commencing the appeal within the prescribed time because he was ignorant of the law prescribing the period within which to appeal, and is incapable of hiring an advocate, who would have filed the appeal on his behalf.

The general principle is that ignorance of the law is no defence. The Criminal Procedure Code Act address the plight of prisoners who are unable to hire the services of a private lawyer to lodge a criminal appeal.

Section 30 of the Criminal Procedure Code Act provides that:

*"If the appellant is in prison he or she may present any document relating to his or her appeal to the officer in charge of the prison who shall then forward the document to the registrar, and for the purpose of section 28 on the date of the presentation, any such*

# *document shall be deemed to have been lodged with the registrar."*

In the case of *Nyesigamukama Annah v. Uganda, Crim. Misc. Application No. 005 of 2024*, this court held that although the applicant may be a layperson and is not expected to comprehend and strictly follow the complex rules of the criminal justice system, in the absence of a private lawyer, any vigilant prisoner would have explored other means of notifying this court of her intention to appeal, especially after the trial magistrate had explained her right to appeal within 14 days.

This court went on to observe that *"any letter to the prison authorities would have sufficed to commence the appeal provided that letter was transmitted to the registrar of this court within the prescribed time."*

Therefore, it is not sufficient that the applicant was ignorant of the law or that he was incapable of hiring a private lawyer to lodge an appeal on his behalf.

In the circumstances, the applicant has not shown sufficient cause that could have prevented him from commencing the appeal within the prescribed time given that he had an option of engaging prison authorities to lodge an appeal.

Nonetheless, what can be ascertained from the authorities on the *Shanti Vs. Hindocha and others [1973] EA 207 & Boney Katatumba vs. Waheed Karim (supra))* is that even where the

applicant has not shown sufficient cause, the court will, in exceptional circumstances, consider "other reasons" why the intended appeal should be allowed to proceed though out of time provided that he or she is not guilty of dilatory conduct. For instance, an application that is brought promptly will be considered more sympathetically than one that is brought after an unexplained inordinate delay *(see: Boney Katatumba Vs. Waheed Karim (supra)).*

The yardstick is always whether shutting out the appeal will cause injustice. The instant application was brought without undue delay.

The applicant was sentenced to 2 years on count one and another 2 years on count 2, both sentences to run consecutively, in November 2022, and filed this application on 2nd February 2023 barely 2 months after 14 days from the time within which to appeal had elapsed.

The applicant contends that the sentence handed to him is too harsh and excessive and that the intended appeal has a likelihood of success. A draft memorandum of appeal is attached to the affidavit in support of the application and the applicant states that he intends to appeal against the sentence only.

At this stage, the court does not delve into the merits of the appeal but rather considers whether the grounds of appeal are plausible and rooted in law or facts. In the instant case, it can be discerned that the intended ground of appeal is plausible.

While substantive justice must be administered according to the law and known procedures, a prisoner should not be shut out of the criminal justice system for slight lapses in adherence to the time within which to appeal. The need to bring an end to litigation should not be at the expense of dispensing justice, particularly in cases where dilatory conduct is not imputed on the applicant *(See: Nyesigamukama Annah Vs. Uganda (supra)).*

Therefore, in the premises, an order for an extension of time within which to file an appeal is hereby granted to the applicant.

The Applicant is directed to file his appeal within **fourteen (14) days** from the date of this ruling. Each party shall bear its own costs for this application.

It is so ordered.

This ruling was made ready by 30th June 2024 before the 7th Revised Edition of the Principal Laws was published and therefore sections cited herein apply mutatis mutandis.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**