Court of Appeal reaffirms that failure by a trial judge to record summing up notes to assessors, while procedurally improper, does not vitiate a conviction where the assessors were duly sworn...

Waboga David
Jun 28
10 min read

Introduction

The Court of Appeal has clarified the legal consequences of omitting summing-up notes to assessors in criminal trials, holding that such omissions amount to a miscarriage of justice and render the entire trial a nullity.

While the Court upheld the conviction on the strength of properly evaluated identification evidence, despite the offence occurring at night, it found the sentence imposed by the trial court to be illegal for failing to arithmetically deduct the time the appellants had spent on remand.

Citing Article 23(8) of the Constitution and the Supreme Court decision in Rwabugande v Uganda, the Court reaffirmed that sentencing courts must explicitly subtract the remand period to ensure lawful and unambiguous sentences in capital offences such as murder.

Facts

The three appellants were jointly indicted for the offence of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap. 120. It was alleged that on the night of 5th April 2014, at Kyebisinde Cell, Ntungamo District, they unlawfully killed Komwaka Olivious, a waitress and wife to the 3rd Appellant.

After a full trial, the High Court convicted the appellants and sentenced each to 30 years’ imprisonment. Aggrieved by both conviction and sentence, the appellants appealed to the Court of Appeal.

⚖️ Grounds of Appeal

The appeal was premised on four main grounds:

That the trial judge erred in law and fact by failing to swear in assessors, failing to sum up to the assessors, and failing to prepare summing-up notes, thus occasioning a miscarriage of justice;
That the trial judge wrongly evaluated evidence on identification, thereby convicting on doubtful testimony;
That the judge imposed a harsh and excessive sentence without adequate consideration of mitigating factors;
That the trial judge failed to deduct time spent on remand from the sentence, violating Article 23(8) of the Constitution.

👨‍⚖️ Representation

For the Appellants
Counsel Chan Masereka (on state brief)
For the Respondent (DPP)
Counsel Akaasa Amina, Senior State Attorney, holding brief for Ms. Ddamba Ramula

The court validated the appeal after preliminary objections, and adopted written submissions from both parties for determination.

⚖️ Resolution of the First Ground of Appeal

That the trial judge erred in law and fact by failing to swear in assessors, failing to sum up to the assessors, and failing to prepare summing-up notes, thus occasioning a miscarriage of justice

Appellants’ Arguments

The Appellants, through counsel, argued that

Assessors Were Not Sworn In
The record of appeal was silent on whether the assessors took an oath before assuming their role. They cited Section 68 of the Trial on Indictments Act, which requires assessors to take an oath of impartiality before evidence is received.
Relying on precedent of Mbaguta Ronald & Another v Uganda, CACA No. 061 of 2018; Sam Ekolu v Uganda, SC Criminal Appeal No. 15 of 1994.

They contended that failure to swear in assessors was a fundamental defect that occasioned a miscarriage of justice.
Failure to Sum Up to Assessors and Prepare Summing Up Notes
They argued that there was no summing up of law and evidence to the assessors by the trial judge. They asserted that the judge failed to prepare or record summing up notes, a mandatory requirement under Section 83(1) TIA. They claimed that these omissions denied the assessors an informed basis for their opinion and thereby prejudiced the Appellants’ right to a fair trial.

Relief Sought

They thus prayed that the appeal should be allowed on this ground alone due to the miscarriage of justice resulting from these procedural failures.

Respondent’s (State’s) Arguments

Counsel for the Respondent (the prosecution) countered as follows:

Assessors Were Properly Sworn In:
He referred to the trial record dated 12th March 2018, which clearly indicated that both assessors were appointed and sworn in in open court without objection from any party. Denied the Appellants’ assertion and emphasized that the record of proceedings contradicted it.
Summing Up Was Conducted:
Argued that the judge did sum up the case to the assessors, as indicated in the record dated 15th May 2018. Pointed out that the court allowed the assessors an hour to prepare their opinion, which they later presented jointly, confirming that summing up did occur.
Failure to Prepare Notes Was Irregular but Not Fatal:
Conceded that the judge did not prepare or record summing up notes. However, cited Ndaula v Uganda (2000) 1 EA 214 at 217, arguing that such an omission is not fatal to the trial and does not automatically nullify proceedings. Emphasized that the assessors’ presence and their rendered opinions were adequate indicators that the trial complied with the law in substance. Asserted that no miscarriage of justice occurred, and therefore the appeal should be dismissed.

Key Findings on the first Issue

Assessors Were Properly Sworn In
The Court of Appeal found the allegation baseless. The trial record showed that the assessors were "appointed and sworn in as assessors," in compliance with Section 68 of the Trial on Indictments Act. There was no objection from the parties, and the record clearly captured their oaths and roles.
Summing Up Was Done, Though Notes Were Not Recorded
The court noted that the summing up of the case to the assessors did take place, as evidenced by their written joint opinion. However, the trial judge did not prepare or retain summing-up notes, contrary to Section 83(1) of the TIA, which requires both a summing up and a written note of it.
Failure to Prepare Notes Is Not Fatal to the Trial
Citing the Court of Appeal decision in Abbo v Uganda (Criminal Appeal No. 168 of 2018), the court reiterated that procedural irregularities, such as failure to record summing up notes, do not automatically nullify a trial unless they result in a miscarriage of justice.

The Court emphasized a purposive approach under Article 126(2)(e) of the Constitution, which enjoins courts to administer justice without undue regard to technicalities.

“Substantive justice in this case would be not so much that assessor summing up is on record but rather that the full trial took place and the assessors were present… The details of how the assessors were summed up to should not form part of substantive justice unless it was shown that it in some way impinged on the appellant's right to be heard.” — Abbo v Uganda, at pp. 8–9.

Legal Basis for Dismissing the Ground of Appeal
The court relied on Section 138(1) of the Trial on Indictments Act, which bars reversal of decisions on appeal unless an error or omission resulted in a failure of justice; and Section 34(1) of the Criminal Procedure Code Act (Cap 122), which only allows a conviction to be set aside where the procedural error caused a miscarriage of justice.

Key Takeaway

Failure to record summing up notes to assessors, while an irregularity, does not vitiate a conviction where summing up was done, assessors gave opinions, and no prejudice or miscarriage of justice occurred. The court continues to apply a substantive justice approach, treating procedural requirements as directory rather than strictly mandatory.

Resolution of Issue 2

Whether the learned trial judge erred in law and fact by wrongly evaluating evidence of identification, particularly under allegedly unfavourable conditions at night, and thereby occasioned a miscarriage of justice.

Appellants' Arguments

The appellants argued that they were not positively identified by the prosecution's witness and that the trial court failed to properly evaluate the conditions under which the alleged identification occurred:

Observation Conditions Were Unfavourable

P.W.1 observed the suspects while showering outdoors at 10:00 p.m., which counsel argued made it difficult to make a reliable identification.

The source of light was not initially disclosed in chief, and no artificial lighting was mentioned.

The witness did not disclose familiarity with the appellants in a convincing manner.

Doubt as to Observation Time:

The time durations and actions described in P.W.1’s testimony (30 minutes, then 15 minutes, etc.) were contradictory and unreliable.

Appellants’ counsel contended that proper conditions for visual identification were absent, citing the guiding authority of Moses Bogere & Anor v Uganda (SC Crim App No. 1 of 1997).

Prayer

That ground two of the appeal be allowed on account of unreliable identification evidence leading to a miscarriage of justice.

Respondent's Arguments

The State strongly rebutted the claim of mistaken identity:

Familiarity with the Accused:

P.W.1 had known all three appellants for a long time as village neighbours.

They lived in the same building or adjacent houses, with only a few metres between them.

Adequate Conditions for Recognition:

The identification occurred in close proximity (1 to 6 metres).

The appellants greeted the witness, showing interaction rather than mere observation.

P.W.1 described the clothing of each appellant and observed their movements over a substantial duration.

Natural Lighting Accounted For:

During cross-examination, P.W.1 clarified that moonlight was the source of illumination.

The witness’s description was consistent and remained unshaken under cross-examination.

The State cited Susan Kigula & Sseremba v Uganda (SC Crim App No. 1 of 2004), emphasizing that where the identifying witness knows the accused, even minimal time is sufficient for recognition.

Court’s Findings:

The Court reaffirmed that proper evaluation of identification evidence requires applying the tests set out in

Moses Bogere & Anor v Uganda (SC Crim App No. 1 of 1997):“The court ought to satisfy itself whether the conditions under which the identification is claimed to have been made were or were not difficult, and to warn itself of the possibility of mistaken identity… The court must consider both favourable and unfavourable factors and evaluate the evidence cautiously.”

The court also cited Abdala Nabulere v Uganda [1979] and Moses Kasana v Uganda (1992–93) HCB 47, noting the need for extra caution where identification is made under difficult conditions and the potential requirement for corroboration.

Key Findings

All three appellants were known to P.W.1 and P.W.2 as neighbours in Kyebitsinde Cell. The identification was made at very close range (1 to 6 metres). There was sufficient natural light (moonlight) as clarified in cross-examination. P.W.1 described each accused’s clothing, interaction (greeting), and movements. P.W.2, the deceased’s aunt, corroborated the prior relationship and motive of A1.

Conclusion

The Court concluded that:

“There were favourable conditions for identification and since the Appellants were already known to the witnesses prior to the incident, there was no mistaken identity.”

Accordingly, Ground 2 of the appeal lacked merit and was dismissed.

Key Takeaways

Courts Favor Recognition Over Mere Identification
When the accused is known to the witness, the evidentiary threshold is lower. Courts treat recognition as more reliable than mere identification of strangers.
Nighttime Observation Is Not Automatically Unreliable
Proper identification can still be upheld at night if natural or artificial light is present and proximity is close.
Cross-Examination Is Crucial in Discrediting Recognition Evidence
If not effectively used to undermine credibility, courts will deem recognition strong, even where notes about lighting or distance are absent from examination-in-chief.
Bogere Guidelines Still Apply
Despite evolving jurisprudence, Moses Bogere & Anor v Uganda (SC Crim App No. 1 of 1997) remains the leading authority on cautious evaluation of identification evidence, especially in criminal trials relying on a single eyewitness.

⚖️ Resolution of Issue 3 & 4

Whether the trial court erred in law and fact by failing to arithmetically deduct the period the appellants had spent on remand before passing sentence, contrary to Article 23(8) of the Constitution and applicable sentencing jurisprudence.

📜 Legal Framework

Article 23(8) of the Constitution:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

Rwabugande v Uganda, Supreme Court Criminal Appeal No. 25 of 2014:

“Consideration of the remand period should therefore necessarily mean reducing or subtracting that period from the final sentence. A sentence couched in general terms… is ambiguous.”

Judicature Act, Cap 13, Section 11: Grants the Court of Appeal full sentencing authority when dealing with appeals.

Sentencing Guidelines for Courts of Judicature, 2013,

Guideline 15: (2) “The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account.”

⚖️ Appellants’ Submissions

Counsel for the appellants contended:

The sentence of 30 years’ imprisonment was harsh and excessive, especially considering mitigating factors such as: Youthful age (between 26 and 28), Remorsefulness, Family obligations (young children), Over four years on remand (for A2), and nearly a year (for A1 and A3).

The trial judge failed to deduct the actual time spent on remand, instead making a vague reference to the time being considered.

⚖️ Respondent’s Submissions

The State argued that the sentence of 30 years was within the legal sentencing range for murder. The trial judge acknowledged the remand time on record and noted it should be deducted, thus complying with Article 23(8).

🧑‍⚖️ Court’s Determination

On Sentence Severity:
A sentence of 30 years for murder is not excessive given the maximum sentence is death. Courts have consistently opted for long-term imprisonment (20+ years) instead of the death penalty post-Kigula decision as observed in Okello Geoffrey v Uganda and Attorney General v Kigula.
On Remand Time Accounting:
Article 23(8) is mandatory, its use of the word “shall” imposes a constitutional duty to deduct the exact time spent on remand.

The trial judge’s general phrasing (“the period each has spent on remand should be deducted…”) was ambiguous and violated the Rwabugande doctrine.
Remand time must be mathematically deducted, not merely acknowledged.

🧾 Re-Sentencing by the Court of Appeal

Acting under Section 11 of the Judicature Act, the Court imposed the following recalculated sentences, each backdated to 16 May 2018 (date of conviction)

Appellant	Time Spent on Remand	Adjusted Sentence Imposed
Laban Mpamizo (A1)	1 year, 6 months, 3 days	28 years, 5 months, 27 days
Nagasha Annex (A2)	4 years, 24 days	25 years, 11 months, 6 days
Agaba Innocent (A3)	9 months, 18 days	29 years, 2 months, 12 days

The sentences commence from 16 May 2018, the date of conviction.

🧠 Key Takeaways for Legal Practitioners

Article 23(8) requires a numerical deduction, not a vague or general statement.
Failure to explicitly deduct remand time renders the sentence unlawful and liable to be set aside.
Rwabugande v Uganda is now the binding precedent: courts must arithmetically subtract pre-trial custody from the total sentence imposed.
Even where a sentence appears reasonable in duration, procedural irregularities in sentencing can invalidate it.

📌 Practice Point

Before sentencing, counsel must insist on explicit acknowledgment and mathematical deduction of the remand period, preferably with figures stated on the record, to ensure compliance with constitutional standards.

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