Nyesigamukama v Uganda (Criminal Miscellaneous Application 5 of 2024) [2024] UGHC 371 (24 May 2024)

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

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL MISCELLANEOUS APPLICATION NO. 005 OF 2024 (ARISING FROM CRIMINAL CASE NO. 32 OF 2020 BEFORE THE CHIEF MAGISTRATE'S COURT OF KYENJOJO AT KYENJOJO)**

| NYESIGAMUKAMA ANNAH | ::::::::::::::::::::::::::::::::: APPLICANT | |---------------------|----------------------------------------------| | VERSUS | | | UGANDA | ::::::::::::::::::::::::::::::::::RESPONDENT | | | BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO |

#### **RULING**

This Application was filed by way of Notice of Motion under Article 126(2)(e) of the Constitution of the Republic of Uganda, section 31(1) of the Criminal Procedure Code Act Cap. 116, and Rule 2 of the Judicature (Criminal Procedure) (Application) Rules SI 13-18 seeking for orders that:

- 1. Leave to appeal out of time be granted to the applicant to file an appeal against the judgement and orders in Criminal Case No. 32 of 2020 of the Chief Magistrate's Court of Kyenjojo at Kyenjojo. - 2. Costs of this application be provided for.

### **Background**

The applicant, Nyesigamukama Annah was charged with the offence of attempted murder contrary to section 204 of the Penal Code Act. She was tried before the Chief Magistrate Court of Kyenjojo at Kyenjojo and was found guilty as charged. On the 8th day of January 2024, the applicant was sentenced to a term of six years in prison and is currently serving her sentence. The applicant intends to commence an appeal against the judgement and orders of the trial chief magistrate. However, she did not file the appeal within the prescribed time of 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 Nyesigamukama Annah**,** the applicant, the gist of which is that:

- (a)The applicant was convicted of the offence of attempted murder and sentenced to a term of six years on the 8th of January 2024. - (b) Immediately after her sentencing, the applicant instructed her nephew, Robert Twinomujuni, to mobilize funds and engage the services of a lawyer to handle the intended appeal. - (c) The applicant believes that lack of legal counsel was the major reason why she was found guilty of the offence of murder. - (d)The applicant never participated in the commission of the offence, and the case was brought against her maliciously.

- (e) Due to lack of funds, the applicant failed to appeal within the prescribed 14 days. - (f) Communication between the applicant and her nephew broke down after her nephew went to live in Kampala. - (g)The applicant is now capable of engaging the services of a private lawyer. - (h)The applicant has plausible grounds for appeal. - (i) The applicant will suffer irreparable damage if her conviction and sentence remain in force and if her right to appeal is denied.

The respondent filed an affidavit in reply, deponed by Akatukunda Joel Kakuru, a senior State Attorney in the Office of the DPP, opposing this application on the following grounds:

- (a)At the time of sentencing the applicant, she was informed of her right to appeal within 14 days and the applicant and her counsel on state brief were present in court. - (b)The applicant's right to appeal would have been exercised by herself or her counsel on state brief who represented her throughout the trial process and, therefore, there was no need for the applicant to engage her nephew. - (c) There was no need for the applicant to engage another lawyer for purposes of appealing since the applicant was represented by counsel on state brief, Ms. Mariam Kesiime who was at the applicants disposal. - (d)The applicant was convicted of the offence of attempted murder after proper evaluation of evidence.

- (e) The 14 days within which to lodge the appeal elapsed due to the dilatory conduct of the applicant. - (f) The intended appeal is frivolous and vexatious. - (g)The applicant has not demonstrated any sufficient cause as to why the application should be granted. - (h)The application has no merit and should be dismissed.

The applicant filed an affidavit in rejoinder where she rejoined the issues as follows:

- (a)The applicant lost communication with former counsel on the state brief. - (b)That the applicant could not lodge an appeal by herself and that's the reason she opted to engage a private lawyer. - (c) That the instructions for counsel on state brief were limited to the trial in the lower court. - (d)That the applicant engaged her nephew for financial assistance because she is an indigent. - (e) That the sufficient reason for not lodging the appeal within time is due to failure to acquire and pay for legal services.

## **Representation and hearing**.

Mr. Kasigazi Francis represented the applicant while Mr. Khauka James represented the respondent. Both parties filed written submissions which I 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.

## **Submissions by Counsel for the Applicant**

Counsel for the applicant submitted that this court has discretion, if good cause is shown, to extend the period within which to appeal. Counsel referred this court to the case of *Charles Kangamitete Vs Uganda Crim. Application No. 01 of 1978* where the court held that the power to extend time can only be exercised with sufficient reasons which relate to inability or failure to take a particular step in time.

Counsel for the applicant argued that in granting an application for an extension of time within which to appeal, the court considers several factors including, the length of delay, the reason for delay, the possibility or chances of success, and the degree of prejudice to the other party. Counsel cited the case of *Mulindwa George William*

# *Vs. Kisubika Joseph SCCA No. 12 of 2014.*

Counsel argued that the applicant herein had met the criteria for grant of extension of time within which to appeal since, in her affidavit in support of the application, she demonstrated how she failed to get funds and engage a private lawyer to file the appeal on her behalf.

Counsel also argued the length of the delay was reasonable given that the applicant was sentenced on the 8th of February 2024 and this application was made on the 21st of March 2024, just 17 days after the time within which to appeal had elapsed.

Counsel for the applicant also argued that the intended appeal had a high chance of success because the applicant intends to challenge her participation of the applicant in the commission of the offence she was convicted of. Counsel argued that the trial court had erred in law and fact when it convicted the applicant on the evidence of a single identification witness without any other independent source.

Counsel also submitted that the grant of this application would not prejudice the respondent and minor lapses in filing the appeal should not deny the applicant to exercise her right to appeal.

## **Submissions by Counsel for the Respondent**

Counsel for the respondent submitted that the applicant had a representation from counsel on state brief, whom she would have instructed to file the appeal, and that at the time of sentencing, neither the applicant nor her lawyer on state brief informed the court that they wished to appeal the judgement and orders of the trial court.

Counsel argued that the narrative of the applicant that she engaged her nephew to handle the appeal should not be believed because the said nephew did not depone any affidavit validating the applicant's claims.

Counsel for the respondent also submitted that the intended appeal is an afterthought and the applicant has not shown any sufficient cause why this application should be granted.

Counsel for the respondent submitted that the applicant is only seeking sympathy from the court since failure to instruct an advocate is not a sufficient cause. Counsel referred this court to the case of *Andrew Bamanya Vs. Shamsherali Zaver HC Civil Application No. 70 of 2001.*

Counsel for the respondent submitted that litigation ought to come to an end and parties should not be held captives to endless litigation. Counsel cited the case of *Mukwano Industries Ltd Vs. Katushabe & Another HC Misc. Application No. 853 of 2019* when the court held there must be an end to litigation.

Counsel for the respondent submitted that the instant application is devoid of any legal merit since the applicant did not demonstrate any sufficient cause that prevented her from filing the appeal within the prescribed time.

# **Submissions by Counsel for the Applicant in Rejoinder.**

In rejoinder, counsel for the applicant submitted that the under section 28(1) of the Criminal Procedure Code Act, an appeal is commenced by a notice in writing which must be signed by the appellant or an advocate on his or her behalf and therefore it was immaterial that the applicant or her lawyer on state brief never indicated to the trial court her intention to appeal its decision.

Counsel also argued that instruction for counsel on state brief had extinguished with the trial and therefore the available option was for the applicant to engage a private lawyer.

Counsel also argued the applicant would not have engaged the services of a private lawyer without means of paying for such services and that's the reason the applicant engaged her nephew to look for the money to pay the private lawyer.

Counsel for the applicant argued that it would be improper to deny the applicant her right to appeal when she is not guilty of dilatory conduct.

Counsel for the applicant argued that the case of *Andrew Bamanya*

*Vs. Shamsherali Zaver (supra)* was distinguishable from the instant case because, in the instant case, the applicant is currently serving a sentence of 6 years in prison and is unable to pursue the appeal without the support of other people.

Counsel argued that this court ought to administer justice without undue regard to technicalities and any errors or lapses should not debar the applicant from the pursuit of his right unless lack of adherence to the rules renders the appeal process difficult and inoperative. Counsel referred this court to the case of *Banco Arabe*

*Espanal Vs Bank of Uganda SCCA No. 08 of 1998*

## **Consideration by Court**

**Issue 1: Whether the application raises sufficient grounds for grant of extension of time within which to appeal.** 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 proves 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 she was prevented from commencing the appeal within the prescribed time due to her inability to hire a private lawyer. The applicant stated when she was found guilty and sentenced to 6 years imprisonment, she engaged her nephew to mobilize resources to hire a private lawyer to file the appeal. The applicant's counsel also argued that this court should take note of the fact that the applicant is currently serving a 6-year sentence in prison and needed the support of others to lodge an appeal.

Counsel for the respondent, on the other hand, argued that there was no need for the applicant to hire a private lawyer since the applicant had a lawyer on state brief who could have instituted the appeal, and the applicant did not engage the prison authorities to file the appeal.

What this court must determine is whether the reasons that prevented the applicant from commencing the appeal within the prescribed time, as stated in her affidavit in support, constitute a sufficient cause.

The Criminal Procedure Code Act provides for the manner of the commencement of a criminal appeal where the intended appellant is in prison and is unable to engage the services of a private lawyer.

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."*

From the foregoing provision, it would follow that since the applicant is in prison, for purposes of the appeal, she would have presented any document relating to the appeal to the officer in charge of the prison, who should have, then, forwarded the same to the registrar of this court. However, in the absence of a private lawyer, the applicant did not do as required under the law.

I am mindful of the fact that the applicant is a lay person and as such, she is not expected to comprehend and strictly follow the complex rules of the criminal justice system. However, 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 to the applicant her right to appeal within 14 days.

Both in the affidavits in support and in rejoinder, the applicant does not give any reason as to why she did not approach the prison authorities. She only insists that she intended to hire the services of a private lawyer to commence her appeal. Given that the applicant was financially constrained, it was not necessary to seek the services of a private lawyer at this stage. 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.

Equally, the applicant would have engaged the services counsel on state brief since the duration of appointment of such counsel may extend to all stages post-conviction.

Rule 16 (1) of The Judicature (Legal Representation at the Expense of the State) Rules, 2022 provides that:

> *"Upon appointment to represent an accused person, an advocate shall remain appointed for the pre-trial period, the trial and, where practicable, at all stages of post-conviction, including appeal, revision and review of court decisions, unless the convict objects to the representation*" (Emphasis added).

In the instant case, although the applicant asserts that she believed her conviction was partly due to inadequate representation, she does not categorically state that she objected to the representation provided by counsel on state brief. In her affidavit in rejoinder, she merely indicates that she lost contact with the counsel on state brief.

In the circumstances, the applicant has not shown sufficient cause that could have prevented her from commencing the appeal within the prescribed time given that she had two other options, one of engaging prison authorities, and another of engaging her counsel in state brief.

Nonetheless, what can be ascertained from the authorities on the *Shanti v 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 6 years on the 8th of February 2024, and the applicant was expected to commence an appeal within 14 days from the date of sentencing. While she failed to commence the appeal within the prescribed time, this application was filed on 21st March 2024 barely 3 weeks after the 14 days had elapsed. This is an act of diligence and a testament that even when the delay had occurred, the applicant took immediate and appropriate action to address the situation.

The applicant also contends that the intended appeal has a likelihood of success as her conviction was based on the testimony of a single identifying witness, which was not corroborated. Unfortunately, she did not provide this court with a copy of the intended memorandum of appeal, making it difficult to ascertain the likelihood of success of the intended appeal. Nevertheless, 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, from the submissions of counsel for the applicant, 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 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.

The administration of justice prioritizes determining legal issues on their merits, and denying the extension based on a minor procedural lapse would be contrary to this principle. Equally, the respondent has not demonstrated any substantive prejudice that would result from the extension of time within which to file the appeal or that granting this application would make the appeal process difficult.

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 her 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.

Dated at Fort Portal this 24th day of May 2024.

**Vincent Emmy Mugabo Judge**