Tumwine v Uganda (Criminal Appeal 185 of 2016) [2025] UGCA 158 (20 May 2025)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA **CRIMINAL APPEAL NO.185 OF 2016** (ARISING FROM MBARARA CRIMINAL SESSION CASE NO.045 OF

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### **TUMWINE ISSA AKA KYAMUHOGO**

APPELLANT

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### **UGANDA**

**RESPONDENT**

(Appeal from Judgment of the High Court at Mbarara by Honourable Justice David Matovu delivered on 8<sup>th</sup> July 2016)

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

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### JUDGMENT OF THE COURT

### **Background**

The Appellant was indicted and convicted of the offence of aggravated defilement contrary to Section 129 (3) & (4)(a) of the Penal Code Act Cap. 120 (currently Section 116 (3) & (4)(a) of the Penal Code Act Cap 128). The facts upon which the appellant was convicted are that: the victim was 13 years old and staying with her mother at Ruti in Mbarara Municipality at the material time. On the 8<sup>th</sup> May 2015 the accused person slept in the victim's mother's house. The following day leaving the accused still sleeping, the victim and her mother left for Ruti Matooke Market where she operates a restaurant and started preparing food. The victim was sent back home by her mother where she found the accused person still sleeping. Upon entering the house, the accused person grabbed and overpowered the victim, put her

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on the bed and started playing sex with her. She was warned not to make alarm lest $\mathsf{S}$ she will be killed. The accused person locked the bedroom door from inside.

One, Agaba Patricia came to the victim's home where she heard the voice of the two playing sex and rushed to the police post and tipped the officers who came to the scene of crime. On reaching the scene of crime, the accused person jumped through

the window, he was chased, arrested and taken to Ruti Police Post. He denied having 10 committed the offence in his charge and caution statement.

The appellant entered into a plea bargain agreement, in which the parties agreed to a sentence of 20 years' imprisonment, which sentence the court confirmed. After reducing the remand period, the court sentenced the appellant to 19 years and one month's imprisonment.

### **Ground of the Appeal**

The appellant, filed this appeal on one ground, namely;-

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.

### **Representation**

At the hearing of the appeal, Counsel Lydia Ahimbisibwe appeared for the appellant. The respondent was represented by Chief State Attorney, Happiness $25$ **Ainebyoona** holding brief for Nabaasa Caroline Hope, Principal Assistant Director of Prosecution. Both the appellant and counsel for the respondent filed written submissions which were adopted with leave of court.

Before the hearing, counsel for the Appellant orally made an application to validate 30 the Notice of Appeal. The application by the appellant counsel was not objected to

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by counsel for the respondent. Accordingly, the court validated the Notice of Appeal. $\mathsf{S}$ 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**

- Counsel for the Appellant submitted that under Rule 12 of the Judicature (Plea 10 bargain) rules 2016, it is mandatory for the trial judge to explain to the accused person his or her rights that are going to be waived, the effect of the said agreement and the agreement is signed before a judicial officer. According to the record of proceedings the trial judge did not adhere to Rule 12 of the Rules which makes the entire proceedings illegal. It is the duty of the trial judge to find out whether the 15 contents of the plea bargain agreement, were explained to the accused to avoid the miscarriage of justice. She cited the case of Wesamba Adan Vs Uganda Criminal Appeal No. 0101 of 2020. - It was argued that it is important for the trial Judge to ascertain whether the accused 20 consented to the terms of the Plea Bargain Agreement since most plea bargain sessions are conducted in prisons where the accused may have less bargaining power and the accused may end up signing the agreement without his consent. It was further submitted that the plea bargain agreement was not translated to the accused in the language he understood. That according to page 17 of the record of proceedings the $25$ appellant's advocate signed to certify that he had translated the agreement without indicating the language that was used and it cannot be presumed that every advocate understands the language of the accused person. That this being a Constitution right the trial judge ought to have inquired whether the plea bargain agreement was translated to the appellant. The appellant also contested the plea bargain agreement 30

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on grounds that the plea bargain agreement was not translated in the language that $\mathsf{S}$ the appellant understood. It was submitted that the trial was illegal and the same should be set aside and the accused be acquitted.

## **Respondent's submissions**

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Counsel for the respondent submitted that if at all this court finds that there was an 10 omission on the part of the trial judge, it did not necessarily occasion a miscarriage of justice since the appellant was fully aware of his waived rights when the record of appeal is analysed as a whole. That since the appellant confirmed to court that he had accepted to waive his rights, this was proof that the appellant was fully aware of the rights that he had waived and that in any case the appellant did not raise any 15 objection at the confirmation of the sentence.

Counsel cited the case of Uganda Vs Hajji Elisa Namunyu & 5 Ors SCCA No. 49 of 2020, where the appellant in that case disputed that they had not pleaded to the charges in the trial court since it was not recorded in the record of the trial court that $20$ the charges had been read to the appellants. Based on this, the court of appeal declared the conviction and sentence null and void based on procedural technicalities. However, on the second appeal, the Supreme Court took note of Article 126(2)(e) of the Constitution, which enjoins courts to administer substantive justice without undue regard to technicalities, and considering Section 34(1) of the Criminal Procedure Act, CAP 122, that permits an appellate court, on appeal against conviction, to ignore procedural errors and omissions if no substantive miscarriage of justice has occurred.

He further prayed that this court to invoke its powers under Section 11 of the 30 Judicature Act, to maintain the sentence of the trial court and referred us to the

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decision of this court in the case of Baguma Vicent Vs Uganda CACA No.097of $\mathsf{S}$ 2015

### **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 10 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 15 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 20 without the proper procedure being followed, specifically that the trial judge failed to explain to the appellant the rights that were being waived, as required by Rule 12 of the Judicature (Plea Bargain) Rules. Additionally, the agreement was not translated to him. - We find it expedient to first of all review the proceedings of the trial Court for a clear $25$ picture of what transpired during the hearing. The record of proceedings indicates as follows:

8/7/2016 Mr. Kato Anthony for State Mr. Kahungu for Accused

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**Clerk Atwine:** Accused understands Runyankore *Mr. Kato: We have extracted a plea bargain agreement.* **Mr. Kahungu:** I signed this agreement **Accused:** I accepted to waive my rights and I signed this agreement. *Court: Indictment read in open court to accused.* Accused: I have heard, its true *Court:* A plea of guilty is entered

### State:

The facts are that the victim aged 12 years was staying with her father and step mother. On 21/6/2015 while the step mother was away accused ordered the victim to sleep in his bed room. When she refused accused beat is her and forced her in sexual intercourse. As he was in the act a one Tusasira Simon heard accused telling the victim to keep quiet, when she called accused, he claimed to be drunk. LDU's were alerted and case reported to police.

#### Accused:

*Those facts are correct. I had sexual intercourse with my daughter of 12* (twelve) years.

### Court:

*The accused is convicted of aggravated defilement on his own plea of guilty.* Accused:

I accepted to serve a prison sentence of twenty years $(20)$ years

### Warder:

*He has been on remand for 11 months.*

### Sentence

*The convict accepted to serve a prison sentence of twenty (20) years and after* deducting the 11 months he has been on remand he is hereby sentence to serve

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a prison term of nineteen (19) years and one (1) month.

### Judge

The above record of the lower court, 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 - $\frac{1}{2}$ 15

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- (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 20

(vi) to be represented by an advocate of his or her choice at his or her expense or in a case triable by the High Court, to legal representation at the expense of the state;

(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; 25

(d) any maximum possible penalty, including imprisonment, fines, community 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 30 except as to the legality or severity of sentence, or if the Judge sentenced the accused outside the agreement.

Page 7 of 14 (2) The charge shall be read and explained to the accused in a language that he or $\mathsf{S}$ 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, 10 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:

"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 the case of **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 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

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then ordered that the file be referred to another trial judge in the circuit for the $\mathsf{S}$ purpose of properly recording the plea bargain agreement between the parties.

This Court's decision in the case of Lwere Bosco Vs Uganda (Criminal Appeal No. 531/2016) [2020] UGCA 2020, when considering the same ground where the procedure under Rule 12 of the 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.

We have noted that the decision in Lwere Bosco (supra) was rendered on 15<sup>th</sup> September 2020, while **Wesamba**, which quashed the conviction and sentence but upheld the plea bargain agreement, was decided on 16<sup>th</sup> March 2023. It therefore follows that the **Wesamba** case reflects the current legal position.

The general consensus of this Court has been that by their nature, plea bargain agreements create an agreement between the prosecutor and the accused with all the features of an agreement in the law of contract. See case of Agaba Emanuel &, 2 Others versus Uganda, Criminal Appeal No. 139 of 2017, cited 20 with approval in Tamuzadde Hamidu vs Uganda, CA Criminal Appeal No. 456 of 2014. That being so, parties are bound and should only be allowed to avoid the agreement and appeal only in very extreme cases. We hold that where the trial Court fails to adhere to the procedures prescribed under Rule 12 of the Judicature (Plea Bargain) Rules, the Plea Bargain Agreement itself remains valid.

The instant case is distinguishable from the case of **Wesamba** (supra) where this court held that the failure to follow the mandatory procedure for recording a plea bargain agreement by the trial court occasioned a miscarriage of justice and rendered the proceedings a nullity and proceeded to quash the appellant's conviction and set

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- aside the sentence. In that case of Wesamba (supra) the appellant had raised two $\mathsf{S}$ grounds of appeal. The first ground was similar to the ground in this instant appeal and the second ground raised was that the trial Judge erred in law and fact when he sentenced the appellant to a long term/illegal sentence contrary to the plea bargain agreement and without considering the period spent on remand. This Court found - that the sentence in the case of **Wesamba** (supra) was illegal for two reasons. Firstly, 10 the learned trial Judge did not take into account the period the appellant had spent on remand, and secondly, he stated that the sentence was to be served from the date of admission on remand yet section 106 (2) of the Trial on Indictment Act provides that every sentence shall be deemed to commence from and include the whole day of the date on which it was pronounced. 15

In the instant case, the appellant raised only one ground with regard to the procedure of recording the plea bargain agreement and has not contested his plea of guilt or challenged the sentence imposed by the trial judge.

We are alive to section 138 of the Trial on Indictments Act, Cap 25, which provides that

"(1) Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice.

(2) In determining whether any error, omission, irregularity or misdirection has occasioned a failure of justice, the court shall have regard to the question

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whether the objection could and should have been raised at an earlier stage *in the proceedings.*"

In Matata Bwambale & Others v Uganda [2023] UGCA 326, this court was faced with an appeal raising a complaint that ingredients of the offence were not explained to the appellant by the trial court. The Court acknowledged that it was the position and invoked section 139 of the Trial on Indictments Act. It was held;

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"We acknowledge the fact that the trial court omitted to read the ingredients of the offence to the appellant. However, for this court to interfere with the decision, it must be demonstrated that this omission led to a failure of justice as provided for under section 139 of the Trial on Indictments Act."

It was the submission of the Appellant 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. We noted that the Appellant was represented during the plea bargain process by Counsel Benon Agaba who was his advocate and the court record shows one Mr. Dhabangi holding brief for the said counsel Agaba. This scenario does not support the submission that the Appellant was disadvantaged in terms of bargaining power during the plea bargain process. It was also open for the Appellant to raise such an objection to the Trial Judge, but he did not do so. We find no merit in this submission.

To further support the claim of the miscarriage of justice occasioned on him, the Appellant raised the argument that the Plea Bargain Agreement was not translated to him. However, we have noted that there is no requirement under the Plea Bargain Rules for the plea bargain agreement to be translated. The Plea Bargain Rules, under Rule 10 provides for an interpretation of the plea bargain agreement to an accused

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through an interpreter. In the instant case the Court Clerk Atwine is on record stating $\mathsf{S}$ that the accused understands Runyankole before the Indictment was read to him. The proceedings indicate the accused responding and making statements on record including stating that the facts read out in the indictment are true and that he had accepted to waive his rights. From this we can make an inference that there was translation in Runyankole availed to the appellant before he confirmed to the court 10 that he accepted to waive his rights and signed the plea bargain agreement. We therefore find this argument to be without merit.

The Supreme Court, in the case of Uganda Vs Hajji Elisa Namunyu & 5 Ors (supra), adopted the principles in Guster Nsubuga and Another Vs Uganda SCCA No. 92 of 2018, and held that the Constitution of the Republic of Uganda in 15 Article 126(2)(e) enjoins Courts to do substantive justice instead of majoring in technicalities. Substantive justice requires overlooking anomalies in the plea taking process in favour of the broader cause of justice. In the instant case the appellant has not challenged the plea of guilty recorded or the sentence that was imposed on him.

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We noted that in the instant case, the appellant was legally represented during the plea bargain process and at confirmation of the sentence. Mr. Kahungu who appeared for the accused in court was the same Advocate who represented him during the bargaining exercise with the State Attorney who was also in court for plea taking. In the Advocate's statement that forms part of the agreement, the Advocate confirmed to have explained to the appellant the rights he was waiving, facts of the case, the nature and elements of the charge and confirmed that there is a factual basis for the plea. The appellant was also accorded interpreters during the plea bargain agreement and at the confirmation of the sentence. The appellant pleaded guilty to facts of the Indictment read out to him and stated that he accepted to waive his rights

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and that he signed the Plea Bargain Agreement which we uphold as a valid $\mathsf{S}$ agreement.

We noted that the appellant did not claim to have suffered any injustice by the court's failure to explain the rights he waived to him. Raising the complaint on appeal as a technicality cannot lead to a reversal of the unequivocal plea he took before the trial Judge. The Court is further cognizant of the necessity to administer substantive justice as enshrined in Article 126 (2)(e) of the Constitution of the Republic of Uganda, 1995.

- Given our analysis of the court record, the aforementioned authorities and the 15 circumstances of this case, we find that there was no miscarriage of justice occasioned on the Appellant by the procedural error by the trial judge by not adhering to the procedures prescribed under Rule 12 of the Judicature (Plea Bargain) Rules on the record. - 20

The appellant has not established the existence of any basis upon which this Court may interfere with the decision of the trial Court. 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. 25

It is so ordered.

Signed, delivered and dated at Mbarara this ... 20 $\ldots$ day of May 2025. 30

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Moses Kazibwe Kawumi **Justice of Appeal**

Florence Nakachwa **Justice of Appeal**

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Cornelia Kakooza Sabiiti **Justice of Appeal**

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