Atwebembire v Uganda (Criminal Appeal 524 of 2015) [2023] UGCA 272 (16 October 2023)


THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Bamugemereire and Mugenyi, JJA)

## CRIMINAL APPEAL NO. 524 OF 2015

JULIUS ATWEBEMBIRE ....................................

## **VERSUS**

UGANDA ...................................

(Appeal from High Court of Uganda at Fort Portal (Batema, J) in Criminal Session Case No. 139 of 2013)

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Criminal Appeal No. 524 of 2015

mut.

### JUDGMENT OF THE COURT

### A. lntroduction

- 1. Mr. Julius Atwebembire ('the Appellant') was convicted of murder contrary to sections '188 and 189 of the Penal Code Act, Cap. 12O, and sentenced to twenty (20) years' imprisonment. The facts of the case as garnered from the record of appeal are that on or about the 14th June 2013 at 6. 30 am, the Appellant attacked and hacked his biological father, Yosamu Rugogamu ('the deceased') to death, cutting him on the head several times and severing the deceased's hand and leg. He thereafter ran to his brother Tundu's home with a blood-stained panga and told him that he had just killed his father. He was subsequently arrested and recorded a charge and caution statement in which he confessed to having killed the deceased. - 2. On 17th December 2015, the Appellant executed a plea bargain agreement with the prosecution in which he agreed to a 2o-year custodial sentence. He was accordingly sentenced to 20 years for the offence of murder but has since lodged the present Appeal in this Court on the following grounds: - l. He was wrongly committed to Mulukuhu Mbale pison without being convicted and without taking plea on the indictment and this caused him a serious miscaniage of justice. - ll. The Leamed Trial Judge improperly handled the plea taking process consequent to a plea bargain agreement and this caused injustice to the Appellant. - 3. \A/hen the Appeal Gtme up for hearing, Mr. Richard Bwiruka represented the Appellant while the Respondent was represented by Ms. Josephine Aryong, a Senior State Attorney. Ms. Aryong conceded the Appeal on the premise that the trial judge had not followed the procedure for plea bargain and plea taking. Conseguently, the Appeal was allowed and the matter remitted back to the High Court for retrial, but the detailed reasons therefor reserved. We do now fumish our reasons for that decision hereinbelow.

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### B. Reasoned decision

4. Section 60 of the Trial on lndictments Act, Cap.23 delineates the procedure to be followed in plea taking, while section 63 of the same Act enjoins the High Court to record an accused person's plea of guilt prior to his/ her conviction on such plea. The cited provisions read as follows:

#### 60. Pleading to indictment

The accused po6on to bo tried boforo the High Court ahsll be placod at tho ba. unfottelEd, unloss tho court shall cause otherTviso to ordor, and the indictment shall be road oyer to him or her by thg chiof registrar or other oftrcer ofthe court, and expl.inod it noed be by th.t ofiicer or lnterprsted by the interprctor of tha court; and tho accusod psEon shall be r€qulred to pload lnstantly to ths indicbront...

#### 63. Plea of guilty

lf th€ accussd plea& guilty, the plea shall be r€corded and ho or she may b€ convictod on it.

5. Rule 12(2) ot the Judicature (Plea Bargain) Rules, 2016 incorporates plea taking in the recording of a plea bargain as follows:

> The chaigs shall be .oad and oxplained to tho accusod in a language that ho or sho undoratandc and tho accused shall be inyited to take plea.

- 6. The import of the foregoing rule was espoused in Musinquzi Apollo vs Uoanda (20'19) UGCA 157, where this Court held the absence of plea taking to vitiate the Appellant's conviction and sentencing, observing that 'where there is a plea bargain, the accused shall still have to plead guilty and the proceedings in plea taking should be on record.' The same position was reiterated in E3!gi3! Godfrev vs Uoanda. Criminal Apoeal No. 337 of 2017. (unreported). - 7. The record of appeal in the present Appeal clearly depicts no record whatsoever of any plea taking having ensued before the trial court. Given the succinct provisions of the legal provisions cited above, as well as case law on the subject, it becomes apparent that a plea bargain agreement would not over-ride statutory provision for plea taking in criminal trials. ln the absence of plea taking, there was

no conviction as would legally justify the 2o-year sentence handed down to the appellant by the trial court or the commitment warrant in respect thereof.

8. lt is for the foregoing reasons, therefore, that we did allow the Appeal and order the remission of the file to the High Court for retrial at the earliest opportunity.

Dated and delivered at Kampala this \dr day of..... 2023.

rick M. S. gonda-Ntende Justice of Apoeal

Cathereine Bamugemereire Justice of Aooeal

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Monica K. illugenyi Justice of Apoeal