Kashaija v Uganda (Criminal Appeal 194 of 2016) [2025] UGCA 146 (20 May 2025)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA

# CRIMINAL APPEAL NO. 0194 OF 2016

# (ARISING FROM MBARARA CRIMINAL SESSION CASE NO.242 OF $2013)$

(CORAM: Moses Kazibwe Kawumi, Florence Nakachwa, Cornelia Kakooza Sabiiti JJA)

# KASHAIJA AUGUSTINE::::::::::::::::::::::::::::::::::::

### **VERSUS**

UGANDA::::::::::::::::::::::::::::::::::: 15

(Appeal from Judgment of the High Court at Mbarara by Honourable Justice David Matovu delivered on 7<sup>th</sup> July 2016)

# JUDGMENT OF THE COURT

#### Introduction. 20

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The appellant was indicted and convicted of Murder contrary to Sections 188 and 189 of the Penal Code Act.

## **Background**

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The facts upon which the appellant was convicted are that the appellant, Kashaija Augustine Muhammed, on the 25<sup>th</sup> day of May, 2013, at Rwamabere Cell in Ntungamo District, murdered Nyakato Allen who was the appellant's wife, and there were suspicions of adultery. On 26<sup>th</sup> May 2013, the appellant's mother visited the deceased, only to find the appellant's grandson crying for clothes. Upon calling out

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to the deceased, the appellant's mother discovered her naked and lying in a pool of $\mathsf{S}$ blood. She raised an alarm, attracting the attention of residents. An examination of the deceased's body revealed an open head injury, which was determined to be the cause of death. The appellant was subsequently arrested, and he admitted to assaulting his wife.

At the hearing, the appellant, together with his counsel, successfully negotiated a Plea Bargain Agreement with the State Attorney, Ms. Keshubi, which was subsequently introduced in Court. The Appellant was indicted to the High Court, and pleaded guilty to the indictment and the plea of guilty was duly recorded.

Upon confirming with the appellant that the facts presented were accurate, the trial Court convicted him based on his own plea of guilty to the offence of murder, contrary to sections 188 and 189 of the Penal Code Act. The trial judge sentenced the appellant to 20 years of imprisonment, in accordance with the plea bargain. After deducting the period spent on remand (3 years and 2 months), the appellant was ultimately sentenced to a term of sixteen years and 10 months' imprisonment.

# **Ground of Appeal**

Being dissatisfied with the decision, the appellant appealed to this court on the following ground:

1. The trial judge erred in law and in fact when he convicted the appellant based on a plea bargain agreement without following a proper procedure, leading to a miscarriage of justice.

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#### **Representation.** $\mathsf{S}$

At the hearing of the appeal, Counsel Lydia Ahimbisibwe appeared for the appellant. The respondent was represented by Nahurira Joseph holding brief for Acio Maureen, Chief State Attorney appeared for the respondent. Both the appellant and counsel for the respondent filed written submissions which were adopted with leave of court.

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Before the hearing, counsel for the Appellant orally made an application to validate the Notice of Appeal. She stated that the sentence was delivered on 7<sup>th</sup> July 2016. however the Notice of Appeal was filed/lodged with the Registrar on 21<sup>st</sup> August 2016. This made the Notice of Appeal out of time according to section 28(1) of the Criminal Procedure Code Act since it was lodged after 17 days, contrary to the 14 days prescribed by the law. The application by the appellant counsel was not objected to by counsel for the respondent. Accordingly, the court validated the Notice of Appeal.

We have studied the record of the lower Court, applicable law and relevant authorities to this appeal and have applied them in resolution of the appeal.

### **Submissions of the appellant**

$25$ Counsel submitted, citing Rule 12 of the Judicature (Plea Bargain) Rules, 2016, that it is mandatory for the trial judge to explain to the accused person the rights that will be waived. He further argued that, according to the record of proceedings, the trial judge failed to adhere to Rule 12, thereby rendering the entire proceedings illegal.

Counsel emphasized that it is the duty of the trial judge to ensure that the contents of the plea bargain agreement were adequately explained to the accused in order to

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prevent any miscarriage of justice. He further argued that a plea bargain agreement $\mathsf{S}$ is akin to any other contract and should therefore be governed by the principles of the Contracts Act, with emphasis on the element of consent, which must be established at the time of plea taking. He submitted that since the Plea Bargain Session was conducted in prison, where the Appellant had less bargaining power, the Appellant might have signed the agreement without his consent.

Counsel also added that the plea bargaining agreement was not translated to the accused in the language he understood. The appellant's counsel signed to certify that he had translated the agreement without indicating the language that was used. This being a Constitutional right, the trial judge ought to have inquired whether the plea bargain agreement was translated to the appellant. Counsel relied on the case of Wesamba Adam Vs Uganda Criminal Appeal No. 0101 of 2020. Counsel prayed that the Court find that the trial was illegal and the same should be set aside and the accused be acquitted.

## **Respondent's submissions**

Counsel for the respondent submitted that the Learned Trial Judge followed a proper $20$ procedure in convicting the Appellant and sentencing him based on his freely negotiated Plea Bargain Agreement, and there was no miscarriage of justice occasioned to the Appellant. That the Appellant is bound by the Plea Bargain Agreement and has no reservations regarding his guilt, he negotiated his sentence and he is not claiming that it is illegal or manifestly excessive, but he is only 25 complaining about how it was how it was received and recorded by the Learned Trial Judge on the Court record.

She further submitted that there is evidence on the record of Appeal that the Appellant freely negotiated his sentence and voluntarily signed the agreement. Since 30

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the Plea Bargain Agreement is akin to a contract and binds parties in the same way $\mathsf{S}$ the contract does, the Appellant should be bound by the agreement which he entered into. She cited the case of Agaba Emmanuel and others COA Criminal Appeal No. 137 of 2017, where this Court held that Plea Bargain creates an agreement between the Prosecutor and the accused, with all the features of an agreement in the law of Contract. The Court plays the role of a regulator of the agreement to ensure 10 that the agreement conforms to the needs of the justice of the case. Since the Appellant does not contest the validity of the Plea Bargain Agreement, his guilt and the sentence passed, there is no miscarriage of Justice occasioned on the Appellant by any error on the record. That the Appeal should be dismissed, conviction upheld, and the sentence passed by the Learned Trial Judge confirmed. 15

## **Consideration of the ground**

This being a first appellate court, it has a duty to re-evaluate the evidence, weighing conflicting evidence, and reach its own conclusion on the evidence, bearing in mind that it did not see and hear the witnesses. We are consistently guided by the principle established in Kifamunte v Uganda, Supreme Court Criminal Appeal No. 10 of 1997, where the Court held that: First appeal, from a conviction by a Judge, the appellant is entitled to have the Appellate Court's own consideration and views of the evidence as a whole and its own decision hereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then makes up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. See also **Rule 30(1)(a) of the Judicature (Court of Appeal Rules) Directions, SI 13-10.**

The appellant contends that he was convicted based on a plea bargain agreement without the proper procedure being followed, specifically that the trial judge failed 30

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to explain to the appellant the rights that were being waived, as required by Rule 12 $\mathsf{S}$ of the Judicature (Plea Bargain) Rules. Additionally, the agreement was not translated to him.

Firstly, with regard to the argument that the agreement was not translated to the appellant, the record clearly shows on page 17 of the Plea Bargain Agreement that the agreement was properly translated to the appellant in Runyakole by the

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appellant's counsel, Agaba Benon. We find this argument to be unsubstantiated and without merit.

We find it expedient to first of all review the proceedings of the trial Court for a clear picture of what transpired during the hearing. The record of proceedings indicates as follows:

### State:

*We have an agreement.*

# Counsel:

I have seen it.

# Accused:

I accepted to waive my rights and I signed. *Court: The indictment was read in Court.*

## Accused:

I have heard, it is true.

### Court:

*A plea of guilty is entered.*

The state highlighted the facts of the offence against the accused...

### Accused:

*Those facts are correct. I killed my wife.*

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$F$ cus Court:

The accused is convicted of murder on his own plea of guilty.

Accused:

I accepted to serve 20 years.

No victim in Court

## 10 Warder:

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He has been on remand for 3 years and 2 months.

## Sentence:

The convict accepted to serve 20 years in prison after deducting the 3 years and 2 months spent on remand, he is sentenced to serve sixteen (16) years and ten $(10)$ months.

The record, as presented, does not indicate whether the learned trial judge took the necessary steps to ensure that the accused understood his Constitutional rights, as required by Rule 12 of the Judicature (Plea Bargain) Rules. The relevant provisions of these rules are reproduced as follows:

## 12. Recording of the plea bargain agreement by the court.

(1) Subject to the procedure prescribed in the Schedule 2, the court shall inform the accused person of his or her rights, and shall satisfy itself that the accused understands the following-

(a) the right - $\frac{1}{2}$ $25$

(i) to plead not guilty, or having already so pleaded, the effect of that plea;

(ii) to be presumed innocent until proved guilty:

(iii) to remain silent and not to testify during the proceedings;

(iv) not to be compelled to give self-incriminating evidence;

(v) to a full trial; and 30

> (vi) to be represented by an advocate of his or her choice at his or her expense or in *a case triable*

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by the High Court, to legal representation at the expense of the state; $\mathsf{S}$

(b) that by accepting the plea bargain agreement, he or she is waiving his or her right as provided

for under paragraph $(a)$ ;

(c) the nature of the charge he or she is pleading to;

(d) any maximum possible penalty, including imprisonment, fines, community $10$ service, or other

*probation or conditional discharge;*

*(e) any applicable forfeiture;*

(f) the court's authority to order compensation and restitution or both; and

(g) that by entering into a plea bargain, he or she is waiving the right to appeal $\frac{1}{2}$ 15 except as to the

legality or severity of sentence, or if the Judge sentences the accused outside the agreement.

(2) The charge shall be read and explained to the accused in a language that he or she understands, and the accused shall be invited to take plea.

(3) The prosecution shall lay before the court the factual basis contained in the plea bargain

agreement, and the court shall determine whether there exists a basis for the agreement

(4) The accused person shall freely and voluntarily, without threat or use of force, $25$ execute the

agreement with full understanding of all matters.

(5) A Plea Bargain Confirmation shall be signed by the parties before the presiding Judicial officer in the Form set out in the Schedule 3 and shall become part of the court record and shall be binding on the prosecution and the accused.

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This Court in the case of Wesamba Adam Vs Uganda [2023] UGCA 19 (supra) observed that:

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"When an accused person opts to plead guilty under a plea bargain agreement, it is the mandatory duty of the trial court to inform the accused of his or her rights, and to satisfy itself that the accused understands the important matters set out under Rule 12 (1) (a) of the Rules. Under rule 12 (4) of the Rules, the trial court is also required to confirm that an accused person freely and voluntarily, without threat or use of force, executes the agreement with full understanding of all matters. These requirements are intended to preserve the accused's non-derogable constitutional right to a fair hearing."

In Wesamba Adam (supra), this Court found that the trial Court's failure to follow the mandatory procedure for recording a plea bargain agreement resulted in a 15 miscarriage of justice, thereby rendering the proceedings a nullity. Consequently, the appellant's conviction was quashed, and the sentence imposed by the trial judge was set aside. However, the Court determined that the plea bargain agreement executed between the appellant and the State remained valid. The Court then ordered that the file be referred to another trial judge in the circuit for the purpose of properly $20$ recording the plea bargain agreement between the parties.

In this court's earlier decision of Lwere Bosco Vs Uganda (Criminal Appeal No. 531/2016) [2020] UGCA 2112, while it considered the same ground where the procedure under Rule 12 was not explained to the accused by the trial judge, held that the failure to comply with the procedure under the rules occasioned to a miscarriage of justice. It concluded that the plea bargain was defective and accordingly set it aside.

It should be noted that the decision in **Lwere** was rendered on 15<sup>th</sup> September 2020, while Wesamba, which quashed the conviction and sentence but upheld the plea

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bargain agreement, was decided on 16<sup>th</sup> March 2023. Consequently, Wesamba $\mathsf{S}$ reflects the current legal position.

We hold that where the trial Court fails to adhere to the procedures prescribed under Rule 12 of the Judicature (Plea Bargain) Rules, the conviction and sentence arising therefrom are rendered a nullity. However, the plea bargain itself remains valid.

Accordingly, this Court holds that the appellant's conviction and sentence, having $10$ been rendered without adherence to the proper procedure, are null and void and are hereby set aside. The plea bargain agreement, however, remains valid. This matter is remitted to the High Court at Mbarara, before a different judge, to duly and properly record the appellant's plea bargain agreement.

We are alive to Section 138 of the Trial on Indictment Act, Cap 25 which provides that no finding, sentence or order of the High Court may be altered or reversed on appeal on account of any error, omission, irregularity or misdirection in the proceedings unless such irregularity has in fact occasioned a miscarriage of justice. From the reading of the lower court record, there was no miscarriage of justice occasioned on the Appellant by any procedural error on the record. The appellant has not established the existence of any basis upon which this Court may interfere with the decision of the Trial Court. Since the Appellant does not contest the validity of the Plea Bargain Agreement, his guilt and the sentence passed, we find that there is no miscarriage of Justice occasioned on the Appellant by any error on the record.

We find no merit in this appeal and uphold the conviction and confirm the sentence.

We accordingly uphold the decision of the trial court and dismiss this appeal.

It is so ordered.

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Signed, delivered and dated at Mbarara this day. $\frac{1}{2}$ May 2025.

> **Moses Kazibwe Kawumi Justice of Appeal**

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**Florence Nakachwa Justice of Appeal**

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Cornelia Kakooza Sabiiti **Justice of Appeal**

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