Nankindu v Uganda (Criminal Appeal 66 of 2020) [2021] UGHCCRD 61 (4 August 2021)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **CRIMINAL APPEAL No 66 OF 2020**

**(Arising from Kajjansi Magistrates Court Case No 58 of 2018)**

**ESTHER NANKINDU :::::::::::::::::::::::: APPELLANTS**

*vs*

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

## **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU**

### **JUDGMENT**

The Appellant, **Nankindu Esther**, filed this appeal against the ruling of **HW Christine Nantege,** Magistrate Grade I Kajjansi Magistrates Court.

The background to this appeal is that when the matter came up for hearing on the 30th of September 2020, the prosecution applied to amend the charge sheet. The appellants counsel raised an objection to the effect that the prosecution had not sought the leave of court or heard from the defence counsel before the amendment was made.

The trial magistrate ruled that there was no provision for leave and dismissed the application. This appeal is against that ruling on the following ground,

That the learned trial Magistrate erred in law and fact when she held that the charge sheet in Case No 58 of 2018 be amended without leave of Court.

#### **Submissions**

This matter came up for hearing during the June 2021 lockdown. As a result the Court sent a notice to the parties to file submissions. The respondent did not respond. The Counsel for the appellant could not be traced either physically or on phone. Nevertheless the matter is technical hence this judgment.

#### **Determination**

…

This appeal arises out of an interlocutory ruling of the trial court. The principle is that there is no right of appeal against an interlocutory ruling in criminal trials.

Appeals in the **Magistrates Courts Act** are provided for in Section 204. It states,

(1) Subject to any other written law and except as provided in this section, an appeal shall lie—

(a) to the High Court, by any person convicted on a trial by a court presided over by a chief magistrate or a magistrate grade I;

(b) to a court presided over by a chief magistrate, by any person convicted on a trial by a magistrate grade II or grade III.

(5) Where an accused person has been acquitted by a magistrate's court, the Director of Public Prosecutions may appeal (or sanction an appeal in such manner as may be prescribed by the Minister by statutory instrument)on the ground that the acquittal is erroneous in law—

(a) to the High Court, where the accused person has been acquitted by a court presided over by a chief magistrate or a magistrate

grade I;

(b) to a court presided over by a chief magistrate, where the accused person has been acquitted by a magistrate grade II or III.

As can be seen appeals lie only against conviction or acquittal. These are final orders at trial. The statute has not provided for appeals against other orders. It is a trite principle of law that appeal is a creature of statute. Neither litigant nor court can confer a right of appeal.

In **Twagira v Uganda [2003] 2 EA 689** it as held Section 216 (now Section 204) of **the Magistrates' Court Act** does not confer a right of appeal in respect of interlocutory orders made by a trial Magistrate such as on a finding of a case to answer. The practice to be followed in such a case is to appeal at the conclusion of the trial and include any complaints about the finding that there was or was not a case to answer.

The 9th Edition of **Black's Law Dictionary** defines interlocutory as,

**'**(Of an order, judgment, appeal, etc.) interim or temporary; not constituting a final resolution of the whole controversy'.

The ruling allowing amendment of the charge sheet is interlocutory in nature as it did not determine the appeal finally.

In the circumstances the appeal has no merit and is dismissed.

**……………………………. Michael Elubu Judge**

**4.8.2021**