Gitau v Uganda (Criminal Appeal 7 of 1986) [1987] UGCA 1 (6 February 1987)

Full Case Text

## IN THE COURT OF APPEAL &lt;

AT MENGO) ft

**MAtfYINDO V»P; LUBcfco** AJsf (CORAM: J. A., & ODOKI J. A.)

^\CRIMJNaL APPEaI^NO.7 OF 4-986^

- ;Ba\E T '. V is E n/

ANDREW\*GITAU <Tlpfe. Nl>" / APPELLANT

## and

UGANDA RESPONDENT

(Appeal from Ruling of the High Co£rt of Uganda at Kampala (Kityo J.) dated 3rd September 1986.

## I N

Miscellaneous Criminal Application No. 188 of 1986. JUDGEMENT OF THE COURT:

The appellant and two others who were all Kenya Citizens, were charged before a Magistrate Grade 1 a at Busia, with two counts. In \*the first count they were charged with purchasing firearms without a certificate contrary to Section 2(2)(a) of the Firearms Act. In the second count they were charged with being unlawfully present in Uganda Contrary to Section 17(7) H of the Immigration Act. On 2/^/86 the appellant pleaded guilty to the two counts and was duly convicted and the following day sentenced to three year's imprisonment on the in default, on the second count. His co-accused persons pleaded guilty to the second count, but not guilty to the first count They were tried and acquitted on the first count. They were sentenced on the second count to a fine of sns. 200,000/ or imprisonment for six months in default. first count and a fine of Shs. 200,000/- or one year's imprisonment

On 15/6/86, the appellant, through his lawyers, fildd before the High Court an application for Extension of time in which to lodge an appeal against conviction and sentence. Kityo, J. dismissed the application with costs It is against this ruling that the appellant now appeals to this court. on 5/9/86.

The main grounds of appeal can be summarised as follows:

- 1. The learned judge failed to consider the fact that the trial magistrate did not explain to the appellant hi right of appeal against sentence. - 2. The learned judge exercised his discretion wrongly when he ignored the submission of the State Attorney that he has no objection to the application being allowed. - 3. The learned judge failed to take into account the wrong procedure adopted in recording the plea of guilty. - 4. The learned judge erred in hearing and deciding the application in the absence of the record of proceedings of the lower court.

The appellant's application to the High Court was supported by his own affidavit and tnat of his mother. In his affidavit, the appellant described at length how he was arrested, detained and tortured by members of the National Resistance Army. He friend. The following day he crossed into Uganda with his friend to visit his friend's uncle. While tney were there, he was arrested, taken uptil he was unconsvious. He claimed that he was threatened with death. He was forced to admit that he has been trying to buy guns. Paragraphs 25 and 24 describe how he came to plead guilty, to some unknown place, beaten, and tortured stated that he came to Busia, Kenya,on 11/5/86 to visit a

... /?....

"23. The NBA Personnel told me that they has to spare my life by taking me to court. They told me to plead guilty. They told me that if I do not plead guilty in court, I would be returned to the bush and immediately killed. 24. On 23rd April 1986. I was taken to court and forced for fear of death to plead guilty to certain charges."

In paragraph JO of his affidavit, the appellant states the reason why he did not file his appeal in time:

> "1 did not know my rights and I had no legal advice and I was a stranger in a foreign country without any help or assistance, and it was he not possible for me to appeal or deny the charge for fear of my life."

The affidavit of his mother explained how the appellant left his place of work on 10/3/86 and was not heard of until she received information in May 1986 that was under custody in Uganda. She came to Uganda in June 1986 and gave instructions to an advocate in Busia to make an application for the release She eventually instructed another firm of advocates in Kampala who filed the application in the High Court. of her son, but he took no action.

The learned State Attorney who appeared for the State conceded to the application in the following words:-

> ''With respect to application for leave to appeal out of time I have perused the two affidavits and I have no objection to the grant of the application to appeal out of time."

In rejecting the application, tne learned judge said, "1 have carefully perused the entire affidavit in support of the present application. I have particularly noted the long delay to appeal by the applicant, and the fact that the applicant is an educated Kanyan citizen described to be Kenyan civil servant. I have similarly noted that there were two other Kenyans jointly charged with him and the trial of those co-accused was not concluded untila long lapse of time. In addition I have noted the S-tate Attorney's stand of raising no objection to the grant of the application for leave to appeal out of time, relying upon the contents in the affidavit of the applicant in support, but without reference to the available records of the proceedings of tne court.

- 4 below. With respect to the State Attorneys View, I find no merit in this application to justify such long delay in making up the mind to retract the plea of guilty, upon which the applicant had been convicted. The applicant appears to me to have changed his mind simply because his co-accused were acquitted of the offence in count one. I accordingly dismiss this application for appeal out of time with costs."

With respect to the learned judge, the appellant had showed any justification for delaying in making up his mind to retract his ^lea of guilty but whether the appellant had shown sufficient cause to justify his being granted extention of time in **whidh** to appeal. The law governing the exercise of discretion to extend time in which to appeal is, in our view, well settled. In Charles Kangamiteto V. Uganda Cr. App. No. 1 of 1978 (unreported) this court said, the issue was not whether | . **f r'%'**

> "It is to be noted that the power can only be exercised for sufficient reason which relates to the inability or failure to take the particular step2 Mugo V, ffinjiru (1970) EA 481, at p. 483. The matter being of discretion it is not possible to lay down an invariable rule but is necessary that time limits should be treated with respect, and in considering whether a time limit shall be extended, one has to have regard to the circumstances of the case and the merits of the excuse put forward for not adhering to the original time in the first instance."

As it was pointed out by Spry V-P in Hugo V. Wanjiru (supra) appeal appears likely to succeed cannot of itself amount~To"sufficient reason for extending time. **On** the other hand the reason for inability to take is not the only valid consideration to ba taken into account. denial of justice by tne refusal or granting of the application may also be properly considered. In Hugo V. Wanjiru (supra) Duffus p said, The fact that there will be a he mere fact that an a particular step

> "This is a very wide power limited by the words ''for sufficient reason" and has been the suoject of numerous decisions 01 this court. Each application must be decided in the particular circumstances of each case but as a general rule applicant must satisfactorily explain the reason

for the delay and should also satisfy the court as to whether or not there wiil be a denial of justice by the refusal or granting of the application. In this Connection I would again refer to the much quoted passage from the judgment of CORRIE Ag. J.a. in the decision of this court in Shah V. Janinadas (1959) EA 838 at p. 840, .

''The object of including r.9 in the rules of court is to ensure that the strict enforcement of the limitations of time for filing documents prescribed by the rules shall not result in a manifest denial of justice. It is thus essential, in my view, that an applicant for an extension of time under r.9 should support his application by a sufficient statement of the nature of the judgment and his reasons for deserving to appeal against it to enable the court to determine whether or not a refusal of the application would appear to cause injustice."

The court will consider the application with sympathy if the applicant can show that the delay has not been caused by his dilatory conduct or that the intended appeal has a reasonable prospect of success. as Spry V-P explained in Shanti V, Hindocha & others (1973) EA 207 at page 209,

> ''The position of an applicant for an extension of time is entirely different from that of an He is concerned why he he should applicant for leave to appeal, with showing ''sufficient cause" be given more time and the most persuasive reason that he can show as in Bhatt's case (1962) Ba 497, is that the delay has not been caused or contributed to by dilatory conduct on his part. But there may be other reaons and these are all matters of degree. He does not necessarily have to show that his appeal has a reasonable prosepect of success or even that he has an arguable case, but his application is likely to be viewed more sympathetically if he can do so and if he fails to comply with the requirement set out above he does so at his own peril."

stated in connection with applications made before this court under r.4 of the Rules of the Court, we have no doubt that they are equally applicable to applications made before the of the Criminal procedure Coue. Although the principles we have referred to above were High Court under S. 328.1

In the present case the issue is whether tne appellant showed a sufficient reason to justify his being granted extension of time for lodging his appeal. hS already indicated, his main reason was that he did not know his rights as he had no leagal advice and was a stranger in a foreign country#

In his submissions, Mr. Kayondo for the appellant argued that the trial magistrate ought to have informed the appellant of his right to appeal against sentence. On the other hand Mr. Kabega for the State argued that the trial magistrate had no such duty, and submitted that ignorance of the law governing appeals is no ground for extending time in which to appeal. Mr. Kabega relied on the case of R,V. Brown s/o Mbetv/a (19^8) 15 EaCA 1j8 where Court of Appeal for Eastern Africg. said,

> "In an affidavit dated J1st July the appellant has shown that the reason for the delay was caused by his ignorance of the law governing appeals. We cannot regard this as a sufficient reason for exercising discretion in the appellant's favour. To do so would open the door wide open to the reception of appeals months out of time and would clearly give rise to abuse."

We agree that ignorance of the law governing appeals cannot of itself be a sufficient ground for extending time in which to appeal. However, where this ground is coupled with other reasons or special circumstances which make it clear that the delay has not been caused by the dilatory conduct of the applicant, we think that it may amount to sufficient reason for extension of time. be considered on its own merits before exercising the discretion. Each case must, of course,

In our opinion, special circumstances were proved to exist in this case. foreigner in ; a strange country, and although every person in Uganda is presumed to know the law, ignorance of law of Uganda is clearly The first is that tne appellant was a

a mitigating factor in favour of the appellant. Secondly, the trial magistrate failed to inform the appellant of his right to appeal against sentence. It is a rule of practice in our courts that a trial court should inform the accused of his right of appeal after passing sentence. The learned State Attorney who appeared in the High Court conceded to these matters and, rightly in our view, did not oppose the application. We are rather surprised that the learned State Attorney who appeared in this court made a $\mathcal{V}$ complete round about turn and opposed this appeal.

The learned judge did not sufficiently address his mind to these special circumstances and we think that had he done so he would have come to the conclusion to which we have come that the appellant had established sufficient ground for granting him extension of time in which to file his appeal. The first two grounds of appeal must therefore succeed. In view of this conclusion, we do not find it necessary to deal with the last two grounds or appeal or the merits of the intended appeal. We may only mention here that the order made by the learned judge against the appellant to pay costs of the application to the state was not only strange but improper. See Uganda V. Lule (1973) EA. 362.

Accordingly, we allow this appeal, set aside the order of dismissal and order that the appellant shall file his appeal in the High Court within fourteen days from today. The order for costs is also set aside.

Dated at Mengo this 6th day of February, 1987.

SIGNED:

S. T. MANYINDO VICE PRESIDENT.

D. L. K. LUBOGO AG. JUSTICE OF APPEAL.

B. J. ODOKI JUSTICE OF APPEAL.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

**B. F. B. BABIGUMIRA** REGISTRAR SUPREME COURT.