Waiswa v Uganda (Miscellaneous Application 81 of 2023) [2024] UGHC 663 (25 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA **MISC. APPLICATION NO. 081 OF 2023** (ARISING OUT OF CRIMINAL CASE NO. A32 OF 2018) (ARISING OUT OF DPP CASE NO. JIN-CO-367-2018) (ARISING FROM POLICE CRIMINAL CASE NO. KRA. CRB NO. 185/2017)

## **WAISWA FRANCO alias MPAGI WASSWA ................................**

#### **VERSUS**

## UGANDA/DPP ...................................

## BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI

### **RULING**

The applicant brought this application under Section 98 of the Civil Procedure Act, Order 51 rule 6 and Order 52 rules 1 & 3 of the Civil Procedure Rules seeking for orders that;

- $i)$ An order that the charges vide Criminal Case No. A32 of 2018 be dismissed. - ii) The applicant and his sureties be released from their bond obligations, and - iii) That the costs be provided for.

The grounds of the application are contained in the affidavit of the applicant and are briefly:

- 1. That the applicant was initially arrested with the offence of aggravated defilement and he pleaded not guilty and has maintained his innocence since the charges were levelled against him. - 2. That the applicant was initially arrested and detained at Bugembe Police Post and Kakira Police Station on the 22nd July 2018 from where he was remanded to Kirinya Prison pending committal proceedings. - 3. That on the 6th day of May, 2019 the defendant was committed to the High court for trial at the nearest session. - 4. That the applicant/accused person remained on remaind until the 12th day of March. 2021 when he was released on bail. - 5. That the applicant/accused person has appeared for extension of his bail on 16 occasions as of the 13th October, 2023 and is still poised to return on subsequent periods. - 6. That the prosecution has taken no steps to prosecute the applicant/accused person to his prejudice. - 7. That the delay in the litigation of the case against the accused person has been inordinately delayed in a manner that is unconstitutional and grossly unfair to the accused person.

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- 8. That the applicant/accused person has suffered mental anguish and has been grossly prejudiced by the prosecution actions/non actions. - 9. That it is fair, just an equitable that this application is granted and the charges be dismissed.

In response to the application, the respondent opposed the application and stated in the affidavit that the contents of the affidavit in support of the application are denied and further added that the prosecution is functus officio after committing the applicant to the High Court and can only wait until the matter is cause listed by the proper authority and as such further steps at this stage would mean usurping judicial powers. That it further contends that the applicant has not been prejudiced in any way by the prosecution and that he is merely misguided on the proper remedies to be sought in his current state and from whom to seek them. That further, the matter has not been set down for hearing yet hence the absence of the complainant and there is no legal requirement for the accused to see the complainant at this stage or for the complainant to have attended court earlier.

In his submissions, counsel for the applicant referred court to Article 28 of the Constitution which guarantees the applicant a speedy trial and that when that is violated to the prejudice of the applicant, that proceedings can be stayed or dismissed. He referred court to the case of Kanyamunyu Mathew vs Uganda Miscellaneous Application no. 151 OF 2020.

He further submitted that the court is vested with discretion to dismiss a criminal case which has delayed.

That in Bushoborozi vs Uganda Justice Batema dismissed a case for having taken 9 years before trial. That it violates the human rights of the accused. In the premises, counsel for the applicant invited court to dismiss the criminal case no. A32 of 2018.

In response, counsel for the respondent raised a preliminary objection that the Notice of Motion is brought under Section 98 of the Civil Procedure Act, Order 51 rule 6 and Order 52 rules 1 & 3 of the Civil Procedure Rules.

Counsel's submission is that the matter in court is a criminal case and in the adjudication of such matters the proceedings are governed by the Criminal Procedure Code Act and Criminal Procedure Rules. Counsel prayed that the application be struck out on the preliminary objection.

Regarding the application in court, counsel for the Respondent submitted citing the case of Bruce R Sanderson vs AG where court held that although the application had not been fixed for hearing in 21 months, that it was an administrative matter.

It is counsel's submission that in the instant case, the DPP has been wrongly sued since it doesn't cause-list matters but rather it is the role of the judiciary. That the DPP is ready to

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prosecute the matter once its cause listed. Counsel referred to the Affidavit in reply and prayed that it is adopted by the court.

Counsel further added that a case which has not been fixed for hearing cannot be dismissed. This amounts to usurping the powers of DPP. That the moment the accused is committed, the DPP becomes functus officio.

Counsel for the applicant promised to file written submission but they were not filed.

#### **Issues for determination**

- 1. Whether bringing the application under the wrong law is fatal. - 2. Whether the application should be allowed.

### Decision

1. Whether bringing an application under the wrong law is fatal.

The applicant has brought this application under Section 98 of the Civil Procedure Act, Order 51 rule 6 and Order 52 rules 1 & 3 of the Civil Procedure Rules which is a wrong law. The applicant should have brought the application under Section 17 (2) (a) of the Judicature Act.

Section 17 $(2)$ (a) of the Judicature Act states that:

"With regard to its own procedures and those of the Magistrates' Courts, the High Court shall exercise its inherent powers—(a) to prevent abuse of process of the court by curtailing delays, in trials and delivery of judgement including the power to limit and discontinue delayed prosecutions"

It is not disputed that by looking at the provisions the applicant has cited that they are wrong before this court however, be that as it may, decided cases have established that the citing of a wrong law is not fatal to an application. It has been held by the Court of Appeal that "where an application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored and the correct law inserted." Refer to Saggu vs. Roadmaster Cycles (U) Ltd (Supra) where the cases of Nanjibhi Prabhudas & Co Ltd vs. Standard Bank Ltd [1968] EA and Re Christine Namatovu Tebajjukira [1992-93] HCB 85 were considered.

For those reasons, this court finds that the citing of the wrong laws did not prejudice the application and the objection is accordingly over ruled.

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### 2. Whether the application should be granted

I have addressed my mind to the motion, affidavit in support and in opposition. The fundamental issue is whether in the circumstances of this case, there has been inordinate delay to prosecute the case against the applicant.

Initially the accused was arrested for the offence of aggravated defilement and he pleaded not guilty and has maintained his innocence since the charges were levelled against him. It is not in doubt that the accused having been arrested on 22nd July 2018, he was detained at Bugembe Police and remanded to Kirinya Prison pending committal proceedings which later took place on $6th$ day of May, 2019.

It is further the applicant's case that since his arrest on 22nd July 2018 as stated above, the matter has never been prosecuted by the respondent notwithstanding that he has appeared more than 16 times to extend his bail which to-date he still does.

It should be noted that Article 28(1) of the Constitution requires courts to determine criminal charges speedily. To determine delay or inordinate delay, the court should establish if the facts of the case reveal that from the time the case was filed to the time of the complaint, nothing has been done by the prosecution to cause the trial to commence. It must be shown that the prosecution is doing nothing to advance the prosecution of the accused.

The Respondent in his submissions states that its duty is to only commit the accused in court and that it does not have any duty to cause-list the matter as that would amount to usurping its powers.

#### For purposes of clarification Article 28 states that:

In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy, and public hearing before an independent and impartial court and tribunal established by law.

The court should not lose sight of the paramount consideration of the right guaranteed by Article 28(1) of the Constitution of the Republic of Uganda., 1995 which guarantees to each person accused of an offence, a fair, speedy and public hearing before an independent and impartial court established by law. This guarantee requires that criminal trials should be conducted and concluded in the shortest period of time. The guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgment be rendered. (see: Kanyamunyu Mathew vs Uganda Miscellaneous Application no. 151 OF $2020)$

Hence, courts are clothed with constitutional and statutory powers to control delayed prosecutions through the enforcement of the provision of Article 28(1) of the Constitution. In my view, it is not open to the prosecution to literally deposit its case in court and go to sleep. The court has power to demand that action be taken on any case filed to ensure that allegations made against an accused are substantiated through a trial and a decision made on the matter.

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The prosecution cannot blame the judiciary in the instant case, it is upon the prosecution to ask court for hearing dates and not the applicant. The prosecution is obligated to inform court of the vital steps it has taken to have the matter heard which it has not presented in the instant case. This is a matter of 2018 and we are in 2024 with no signs of the prosecution setting down the matter for hearing. From the court record, there is no jota of evidence from the prosecution that it made an effort to have this matter cause listed.

The applicant in his affidavit in support of the application, attached annexture "C" which is his medical report. That he suffered hypertensive stroke which he has been managing it since 2018. It is further stated therein that he had recently developed weakness on the right side of the body which was progressing rapidly. That he was also getting episodes of mental confusion and has developed slurred speech.

We also take note that in the medical report, it is stated that he was 58 years old in 2020 which makes him 62 years as of now. The applicant notwithstanding his health issues has constantly come to court and continued to do so even after filing this application. The question is, for how long will he have to keep reporting to court as a condition for his bail without any effort on the part of the respondent to set down the matter of hearing. At all times, there is need for fairness and justice.

The court is mandated to balance the right of the state to prosecute offenders to punish crime in society with the right of an accused to have a fair, speedy and public trial before an impartial court. The applicant has greatly been prejudiced by the actions of the respondent and in the interest of justice it is only fair that the application be granted.

Consequently, I do allow the application and order that the charges vide Criminal Case No. A32 of 2018 be dismissed and the sureties are hereby released from their bond obligations.

I so order.

HON. JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI JUDGE.

Ruling delivered on 25th June, 2024.

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