Ogwang Patrick Osinde and Others v Uganda (Criminal Appeals No. 19 and 60 of 2019) [2025] UGSC 48 (28 April 2025)

APPELLANTS VERSUS UGANDA RESPONDENT JUDGMENT OF THE COURT Background 1 1. OGWANG PATRICK OSIN DE 2. OGWANG ANDREW ALIAS SALEH 3. OGWAL RAMADHAN ::::::::::::::::: This appeal is from the decision of the Court of Appeal (Kakuru, Egonda- Ntende, Obura, JJA) in Criminal Appeals Nos. 55, 62, and 67 of 2016 dated 2 nd May, 2019. The appellants were, each, indicted in the High Court with three counts as follows: Murder contrary to Sections 188 and 189 of the Penal Code Act, Cap. 120 (PCA) (count 1); Aggravated Robbery contrary to Sections 285 and 286 (2) of the PCA (count 2); and Attempted Murder (count 3) contrary to Section 204 of the PCA. Upon conclusion of the trial before Nabisinde, J., each appellant was convicted as charged and sentenced as follows: 65 years imprisonment on count 1; 50 years imprisonment on THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEALS NOS. 19 AND 60 OF 2019 (Appeals from the decision of the Court of Appeal (Kakuru, Egonda-Ntende and Obura, JJA in Criminal Appeals Nos. 55, 62 and 67 of 2016 dated 2 nd May, 2019) CORAM: HON. LADY JUSTICE PROF. LILLIAN TIBATEMWA- EKIRIKUBINZA, JSC HON. LADY JUSTICE PERCY NIGHT TUHAISE, JSC HON. MR. JUSTICE MIKE J. CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. LADY JUSTICE MONICA K. MUGENYI, JSC The 1 st and 2 nd appellants' grounds of appeal were as follows: "1) 2 The charges against the appellants arose from an incident that occurred on the 6 th day of January, 2014 at Ireda Lumumba, Central Division in Lira District where a group of men shot and killed Akidi Susan Eryau (the deceased) before stealing from her money to the tune of Ug, Shs. 65,000,000/=, which she had in her possession at the time. During the incident, the men also shot and injured Enamu Jonathan, the deceased's son, who was with her at the time. The trial Court found that the appellants were some of the assailants who had attacked the deceased and her son. The appellants were dissatisfied with the decision of the High Court and appealed to the Court of Appeal which set aside the High Court decision and ordered a retrial. The Court of Appeal based its decision on an issue relating to irregular participation of one of the assessors in the trial. The said assessor had participated in the giving of the assessors' joint opinion to the learned trial Judge yet he was absent at one of the hearings during the trial. The Court of Appeal found that the assessor's participation in the trial after the date he was absent was irregular and contrary to Section 69 (1) of the Trial on Indictments Act, Cap. 23 and had caused a miscarriage of justice to the appellants. That the learned Justices of Appeal erred in law and fact when they failed to conclusively re-evaluate the evidence thus arriving at a wrong conclusion. The appellants were dissatisfied with the decision of the Court of Appeal and lodged separate appeals to this Court; the 1 st and 2 nd appellants filed Criminal Appeal No. 60 of 2019, while the 3 rd appellant filed Criminal Appeal No. 19 of 2019. 2) That the learned Justices of Appeal erred in law and fact when they visited the failures and irregularities of the prosecution case onto the 1 st and 2 nd appellants by ordering a retrial. count 2; and 35 years imprisonment on count 3, with all sentences to run concurrently. 4) The 1 st and 2 nd appellants made the following prayers: The appeal be showed. "1) 2) The 3 rd appellant's grounds of appeal were that: "1) 2) 3) 4) The Court of Appeal's order for a retrial be set aside and substituted with an order acquitting the 1 st and 2 nd appellants." 3) That the learned Justices of Appeal erred in law and fact when they relied on wrong principles when quashing the convictions of the 1 st and 2 nd appellants on all three counts of Murder, Aggravated Robbery and attempted murder and instead ordered for a retrial instead of having the 1 st and 2 nd appellants acquitted. That the learned Justices of Appeal erred in law and fact when they ignored all the glaring flaws in the prosecution case and instead of acquitting the 1 st and 2 nd appellants, they instead ordered for a retrial of the 1 st and 2 nd appellants thus occasioning a miscarriage of justice to the 1 st and 2 nd appellants." That the learned Justices of Appeal erred in law and principle when they ordered for a retrial resulting from multiplicities of litigation process yet the original trial was vitiated by mistakes of Court not mistake of the appellants. That the learned Justices of Appeal erred in law and principle when upon considering of only part of the second (2 nd ) ground of appeal ordered a retrial in a complex and protracted trial without giving reasons for their decisions and thus avail prosecution with a chance to Fill up its gaps. That the learned Justices of Appeal erred in law and principle when upon quashing the convictions on all three counts of Murder, Aggravated Robbery and Attempted Murder ordered a retrial without considering the circumstances of the case, the injustice occasioned and the insufficient uncorroborated evidence of the said accomplice. That the learned Justices of Appeal just like the trial Judge erred in law when they failed to re-evaluate the evidence on record as a whole before ordering a retrial of the appellant thereby occasioning a grave miscarriage of justice to the 3 rd respondent." 3 The 3 rd appellant prayed as follows: "a) The appeal be allowed. b) The Court of Appeal's orders for a retrial be set aside. c) An order be made for his immediate and unconditional release." "1) 2) 3) "<) •i) Any other orders that could meet the ends of justice." iii) Representation 4 Additionally, the respondent cross-appealed against the decision of the Court of Appeal on the following grounds: At the hearing, Mr. Emmanuel Muwonge, learned Counsel, appeared for the 1 st and 2 nd appellants. The 3rd appellant appeared for himself. Ms. Ainebyoona Happiness, a Chief State Attorney holding brief for Ms. Caroline Nabaasa, Assistant DPP appeared for the respondent. That the learned Justices of Appeal erred in law when they summarily disposed of an appeal without considering its entire merits thereby occasioning a miscarriage of justice. That the learned Justices of Appeal erred in law when they failed in their duty to reappraise the evidence as a whole in order to reach an informed decision before quashing the well-reasoned conviction and sentence thereby occasioning a miscarriage of justice. The learned Justices of Appeal erred in law when they ordered for a retrial basing on a procedural irregularity that did not occasion a miscarriage of justice." The Court re-evaluates the evidence in this appeal before the Court of Appeal and makes its declarations thereon. The Order for retrial is quashed and the conviction and respective sentences be re-instated. The respondent prayed that this Honourable Court makes the following orders: Written submissions were filed for the respective parties. "1) 2) 3) Appellants' submissions Issue 1 Issue 2 5 On issue 1, counsel for the 1 st and 2 nd appellants submitted that the Court of Appeal erred in ordering a retrial without evaluating all the evidence on record as it was obligated to do. Counsel contended that had the Court of Appeal properly reappraised the evidence, it would have acquitted the 1 st and 2 nd appellants on account of the miscarriage of justice they suffered arising from the irregular participation of the assessor in their trial. In relation to this issue, the 3 rd appellant also agreed that the Court of Appeal erred in failing to reappraise the evidence before the trial Court. He submitted that had the Court of Appeal reappraised the evidence, it would have found that the trial Court relied on incredible accomplice evidence to convict him and should therefore have acquitted him. In their respective submissions, the 1 st , 2 nd and 3 rd appellants seemingly supported the Court of Appeal's decision to find that it was irregular for the trial Court to permit the assessor to resume his position and to subsequently participate in giving the joint assessors' opinion despite him having been Whether the Court of Appeal erred in ordering a retrial without first reappraising the evidence. Whether the Court of Appeal's order for a retrial was justified in the circumstances of this case." Whether the trial Court's decision to allow an assessor who had been absent during a previous hearing to resume participation in the trial was a fundamental irregularity that occasioned a miscarriage of justice to the appellants. We shall address the respective grounds of appeal under the following three issues: Issue 3 "We accordingly order a retrial before a different Judge." 6 absent during one of the hearings, although they did not argue the issue at length. Counsel for the 1 st and 2 nd appellants submitted that the order for a retrial was inappropriate in the present case, and that the appellants should instead have been acquitted. He pointed out that it was the trial Court's error to permit an assessor to irregularly participate in the trial, and the 1 st and 2 nd appellants should not be made to suffer spending time in custody while awaiting retrial because of the trial Court's error. Counsel further contended that the Court of Appeal's order for a retrial only favours the State which will be accorded an opportunity to present a better case against the appellants at the new trial. The 3 rd appellant further faulted the Court of Appeal for failing to give reasons for ordering a retrial and merely stating: "...even where a conviction is vitiated by a mistake of the trial Court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should be made where the interests of justice require and it should not be ordered where it is likely to cause an injustice to the accused person." Furthermore, the 3 rd appellant submitted that ordering a retrial was inappropriate in the present case as it will prejudice him by prolonging proceedings against him and also keeping him in custody for an indeterminate period pending retrial yet he has already spent over 9 years in custody. The 3 rd appellant submitted that a retrial, arising from a mistake of the trial Court, should not be ordered if it will cause injustice to an accused person. For this proposition, the 3 rd appellant relied on Abdu Komakech vs. Uganda, Supreme Court Criminal Appeal No. 01 of 1998 (unreported), where it was stated that: Respondent's submissions Issue 1 The 3 rd appellant also submitted that the Court of Appeal erred when it failed to consider several factors which rendered a retrial inappropriate in the present case, namely: 1) The nature of the evidence against the 3 rd appellant was so weak and a retrial would give the prosecution an opportunity to fill gaps against him; 2) The significant time lapse between the original trial and the retrial which would impair the memory of potential witnesses; 3) The interests of the 3 rd appellant who has suffered in the hands of the state for long; 4) The possibility of both state and defence witnesses not appearing at the retrial because of change of location or death; 5) The fact that the error that vitiated the initial trial was committed by the trial Court for which the prosecution or the accused person is not to blame; 6) The expenses that the 3 rd appellant has so far incurred in defending himself, having hired a lawyer on private brief in the trial Court and later been given a lawyer on State Brief; 7) Whether the 3 rd appellant can get a fair trial at the retrial given the initial protracted trial, and the embarrassing and sensational media coverage that the trial generated which have destroyed his image; 8) The possibility that a retrial puts the 3 rd appellant, a young man, in a hopeless situation since he had already spent considerable time in custody. Counsel for the respondent's submissions on the issues are considered below. Counsel submitted that the Court of Appeal failed in its duty to re-appraise all evidence before ordering a re-trial, a failure that contravened Rule 30(l)(a) of the Judicature (Court of Appeal Rules) Directions, S.I 13-10 which places a duty on the Court of Appeal to reappraise the evidence and make inferences of fact. She further submitted that the failure to reappraise the evidence also contravened the principle laid down in cases such as Kifamunte Henry v. Uganda, Supreme Court Criminal Appeal No. 10 of 1997 (unreported) and Bogere Moses and Another vs. Uganda, Supreme Court Criminal Appeal No. 1 of 1998 (unreported), to the effect that a first appellate Court has a duty to re- 7 Issue 2 Issue 3 8 According to counsel, the above highlighted provision enjoined the Court of Appeal to assess whether the irregularity relating to the assessor had occasioned a miscarriage of justice, and in that regard it ought to have assessed the nature of the evidence presented during the assessor's absence, the value of that evidence to the defence case, the length of the assessor's absence, and whether the evidence adduced during the assessor's absence had been fundamental to the trial Court's decision to convict the appellants. In counsel's view, the Court of Appeal's failure to conduct the assessment highlighted above caused it to reach an erroneous decision of ordering a retrial. In view of the above submissions, counsel submitted that issue 2 should also succeed. Counsel submitted that the failure of the Court of Appeal to reappraise the evidence as highlighted in the submissions on issue 1 and its decision to order a retrial offended Section 139(1) of the Trial on Indictments Act, Cap. 23 which reads: evaluate all evidence in the case before it. Counsel pointed out that the Court of Appeal merely acknowledged its duty to re-evaluate the evidence but failed to do so, and that had it subjected the evidence to fresh scrutiny, it would have determined that ordering a retrial was not appropriate in the circumstances of the case. Instead, the Court of Appeal would have found that there was sufficient evidence to support the conviction of the appellants. Counsel concluded by submitting that issue 1 ought to succeed. "139. Reversability or alteration of finding, sentence or order by reason of error, etc. (1) Subject to the provisions of any written Saw, 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." 9 In relation to issue 3, counsel submitted that the participation of the assessor in the giving of the joint assessors' opinion after he had been absent during one of the hearings did not cause a miscarriage of justice so as to render the trial a nullity. Counsel referred to Section 69(1) of the Trial on Indictments Act, Cap. 23 which addresses the absence of assessors, and provides as follows: Counsel pointed out that the trial Court complied with the above provision when, in the absence of the first assessor from the trial, it proceeded to hear the evidence of DW12 Ocepa Geoffrey with the aid of the one present assessor. Furthermore, counsel submitted that the trial Court's decision to allow the absent assessor to return and participate in the hearing had not caused a miscarriage of justice, because the second assessor who had been present throughout the trial held a similar opinion and also advised the trial Court to convict the appellants. In counsel's view the presence of the other assessor during the whole trial cured the irregularity of the 1 st assessor's absence. Further, counsel submitted in the alternative, that if the manner of the 1 st assessor's subsequent participation in the trial after previously being absent was contrary to the express language of Section 69 (1), the said provision should be interpreted as directory and not mandatory, and this Court should so hold. In support of this submission, counsel referred to the cases of Uganda vs. Nsubuga and Another, Supreme Court Criminal Appeal No. 92 of 2018 (unreported) and Kampala City Council Authority vs. Kabandize and 10 others, Supreme Court Civil Appeal No. 13 of 2014 (unreported). Counsel also submitted that assessors' opinions are, pursuant to Section 82(2) of the Trial on Indictments Act, Cap. 23, not binding on the trial "If, in the course of the trial before the High Court at any time before the verdict, any assessor is for sufficient cause prevented from attending throughout the trial, or absents himself or herself, and it is not practicable immediately to enforce his or her attendance, the trial shall proceed with the aid of the other Assessors." Consideration of the Appeals 2) 3) 10 Court, and that for that reason, the absence and return of the assessor could not have occasioned a miscarriage of justice. For the above reasons, counsel submitted that issue 3 ought to be answered in the negative. Whether the Court of Appeal's order for a retrial was justified in the circumstances of this case." Whether the trial Court's decision to allow an assessor who had been absent during a previous hearing to resume participation in the trial was a fundamental irregularity that occasioned a miscarriage of justice to the appellants. We have carefully studied the record and considered the submissions for the respective parties and the law and authorities cited. All the present appeals are second appeals against the decision of the Court of Appeal in an appeal arising from the trial and conviction of the appellants by the High Court. It is now well-established that in a second appeal, this Court shall ordinarily consider the points of law raised by the appellant but shall not, save for exceptional cases, reappraise the evidence. See: Masembe vs. Sugar Corporation of Uganda Limited [2002] 2 EA 434. We shall begin by observing that the appellants raised different grounds of appeal, in their respective memoranda of appeal and so did the respondent in her memorandum of cross-appeal. However, we have, in this judgment, identified three issues we believe are sufficient to address the key points argued by the respective parties in this appeal. For convenience, we shall re state these issues which are as follows: We shall proceed to deal with the issues in the following order; issue 2, first, and if necessary, issue 1 next and lastly issue 3. "1) Whether the Court of Appeal erred in ordering a retrial without first reappraising the evidence. 11 Issue 2 - Whether the trial Court's decision to allow an assessor who had been absent during a previous hearing to resume participation in the trial was a fundamental irregularity that occasioned a miscarriage of justice to the appellants. We observe that trials in the High Court are conducted with the aid of assessors as required under Section 3 (1) of the Trial on Indictments Act, Cap. 23 (TIA) which provides: An assessor is a person who is appointed to attend a trial in the High Court and at its conclusion advise the iearned trial Judge on whether to acquit or convict the accused person(s), basing on the evidence adduced at the trial. The TIA enacts several rules governing assessors, namely; a trial should begin with at least two assessors (Section 3 (1)); they are required to take an oath at the beginning of the trial (Section 67); they are also expected to be fit and proper persons who satisfy the qualities laid out under Section 68 (1); and most relevant for the present appeals, the TIA sets out rules on attendance of the trial by assessors and also provides for the steps to be followed by the trial Court should one or both assessors be absent during any part of the trial (Section 69 (1)). "Except as provided by any other written law, all trials before the High Court shall be with the aid of assessors, the number of whom shall be two or more as the court thinks fit." This Court has, in several previous decisions, treated seriously the failure to abide the legal provisions on assessors in the TIA. In Komakech vs. Uganda, Supreme Court Criminal Appeal No. 1 of 1998 (unreported), the Court nullified a trial because a person who had not taken oath as an assessor at the commencement of trial had subsequently assumed the position and acted as one. The Court held that the person had acted as an assessor fraudulently and that, in reality, the trial had commenced with one assessor contrary to the nA requirement that trials must commence with two assessors. It observed that "...this irregularity is fundamental as it goes to jurisdiction." 12 Similarly, in Alenyo vs. Uganda, Supreme Court Criminal Appeal No. 08 of 2007 (unreported), this Court nullified a trial which had been conducted with the aid of assessors who had not taken oath at the commencement of the trial, emphasizing the significance of the assessors' role as follows: In the more recent case of Mpags Godfrey vs. Uganda (2017) UGSC 35, this Court affirmed this position when it held: The scenario in the present case was that the assessor, who had been appointed and sworn at the commencement of the trial, was absent during one of the hearings but resumed at the next hearing and attended the trial and even participated in giving the assessors' opinion. The Court of Appeal found that the trial proceedings were conducted in a manner that contravened Section 69 (1) of the TIA. The Court of Appeal observed as follows: After setting out the provisions of Section 69 of the TIA, the Court of Appeal continued: Absence of assessors from a trial is not a mere tra-esguEaritv . Under section 3 of the Trial on Indictments Act all trials before the High Court shall be with the aid of assessors and Section 69 of the same Act provides that in absence of an assessor the trial proceeds with the aid of other assessors. If more than one of the assessors are prevented from attending or absent themselves, the proceedings shall be stayed, and a new trial shall be held with the aid of different assessors. "Section 3 of the Trial on Indictments Act underscores the importance of assessors by providing for a mandatory requirement that all criminal trials in the High Court be conducted with at least two assessors. It therefore follows that assessors' participation and role in a criminal trial is vital. Their role goes to the legality of a trial." "The appellant also contended that one of the assessors was absent during part of the hearing. From the outset we wish to point out that the absence of assessors from a trial is not a mere irregularity. The law governing absence of an assessor in a trial before the High Court is provided by Section 69 (1) of the Trial on Indictments Act." "We are ready with our opinion and we are presenting a joint opinion." Section 69 (1) of the TIA provides: "Absence of assessors 13 The above provision has been severally interpreted by this Court to entitle a trial judge that is faced with an assessor that has absented himself/ herself to proceed with the aid of the remaining assessor. See Zoreka & Another vs Uganda (1986-1989) 1 EA 603, Okwonga Anthony vs Uganda (2002) UGSC 8 and Kashaija & 2 Others vs Uganda (1977) HCB 50. In their joint opinion, the assessors advised Court to convict the appellants on all three counts. We are of the view that the second assessor, having absented himself from part of the trial and did not hear the evidence even of only one witness should not have been permitted to resume participation and give opinion in the case. See: Abdu Komakech vs. Uganda [3.992-93] HCB 21 and Mukiibi Emmanuel vs. Uganda, Court of Appeal Criminal Appeal Ko. 43 of 1996 (unreported). "In the instant case, hearing started on 19 th March, 2015 with two assessors, Ojungu Edward and Akwat Thomas Patrick who were duly sworn in as indicated above. On 3 rd December, 2015 one of the assessors ' was absent during part of the hearing. He missed the evidence of DW12 Ocepa Geoffrey and he resumed later. The trial Court proceeded with both assessors, summing up was made to both assessors on 1 st February, 2016 and their joint opinion was delivered in Court on 8 th February, 2016. The record indicates as follows: Allowing the assessor to resume participation in the trial was a fundamental irregularity which occasioned a miscarriage of justice. The assessor's opinion was based on incomplete evidence and it could have influenced the decision of the Judge." If, in the course of a trial before the High Court at any time before the verdict, any assessor is from sufficient cause prevented from attending throughout the trial, or absents himself or herself, and it is not practicable immediately to enforce his or her attendance, the trial shall proceed with the aid of the other assessors." 14 The principle that an assessor that did not hear part of the evidence should not participate in the rest of the trial is therefore the current position of the law on that issue. In Zoreka & Another vs. Uganda (supra), this Court summed up that principle as follows: In Zoreka & Another vs Uganda (supra), this Court specifically held that not only may a trial court that grants one of the assessors leave of absence proceed with the remaining assessor(s), 'once an assessor has been given leave of absence and the trial continues, the absent assessor ceased to be an assessor (and) the court is not properly constituted if the absent assessor returns and resumes his seat.' The Court cited with approval the case of Republic v Assa Singh (1937) 4 EACA 41, where a trial in which an assessor that missed a few days of the hearing but later reappeared was declared to be null and void (rather than a curable error, omission or irregularity) for the following reason: The Court was not of competent jurisdiction because the assessor had not heard al! the evidence, it being immaterial! whether the assessor was absent for one day or more than one, or whether the witnesses heard in his absence were prosecution or defence witnesses, or whether the witnesses could be described as merely forma? witnesses. See also Kabui v Reg (1954) 21 EACA 260 . The court process is designed to carry into effect the principle of natural justice, that the court gives a hearing to each side and, having done so, decides the controversy between them. Justice must also be seen to be done. No accused person could feel that justice has been done to him if part of his evidence is not listened to. ... Nor could he ever feel satisfied if the assessor who did hear his whole evidence advised an acquittal, while the assessor who did not hear him fully, found him guilty. It is clear that the court was not properly constituted and was not competent to Judge , The trial was a nullity and had to be set aside on general principles. To hold otherwise, and to try and distinguish which types of evidence would not vitiate the trial, was to be on the thin end of the wedge leading to cases where it would be possible to ignore some evidence, and cure the defect all the evidence must be heard by the full court, and that is the only way that the legal process can be a rational basis in order that justice cannot only be done, but also be seen to be done. 15 Consequently, in this case where one of the assessors did not hear some of the evidence, the trial judge should have proceeded with the remaining assessor only. The second assessor, having left, ceased to be an assessor in the trial and should never have been permitted to return to the trial proceedings in the capacity of an assessor. Be that as it may, we are alive to the decision of this Court in Abdu Komakech vs Uganda (1990) UGSC 10, where it was observed that a mistake by a trial court would not automatically necessitate a retrial but should depend on the circumstances of each case. The Court held: Even where a conviction is vitiated by a mistake of the trial Court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should be made where the interests of justice require and it should not be ordered where it is likely to cause an injustice to the accused person. The circumstances in Abdu Komakech vs Uganda (supra) are distinguishable from those in the instant case. In that case, although two assessors had been sworn in before the commencement of the trial one of them did not show up when the trial commenced. Instead, another person who had not been sworn in as an assessor took his place as an assessor. Upon realizing that anomaly, the trial judge in that case discharged the 'imposter' assessor and continued with one assessor until the end of the trial . In effect, therefore, the trial in that case never commenced with two assessors . Consequently, this court adjudged the trial with only one assessor from the onset to amount to a fundamental irregularity that goes to jurisdiction; occasioned a miscarriage of justice, and was therefore incurable under the present section 139 of the TIA. In this case, on the other hand, the trial commenced on a correct footing with 2 assessors sworn in. Once one of the assessors absented himself from the trial proceedings, the trial judge was entitled to proceed with the remaining assessor. The question is, the absentee assessor having returned to the trial proceedings, was the order for a retrial warranted? "31. General power of the court. In this case, with respect, we find that the learned Justices of Appeal did not make any effort to evaluate the circumstances of the appeal that was before them to determine whether or not they warranted an order for a retrial. It did not undertake a reappraisal of the evidence and circumstances of the case to determine whether a retrial was a befitting order, but rather premised its decision on the following view: Rule 31 of the Judicature (Supreme Court Rules) Directions, S.I 13- 11 mandates this Court to order a rehearing of an appeal by the Court of Appeal. It provides as follows: In Abdu Komakech vs Uganda (supra), given the circumstances thereof as highlighted above, this Court observed that it did have the discretion to order a retrial. Nonetheless, it deferred to the approach adopted by the East African Court of Appeal in Fatehali Manji V Republic (1966) E.A. 343, 344, where it was held: "The assessor's opinion was based on incomplete evidence and it could have influenced the decision of the Judge." In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should be made where the interests of justice require it and it should not be ordered where it is likely to cause an injustice to the accused person. On any appeal the court may, so far as its jurisdiction permits, confirm, reverse or vary the decision of the Court of Appeal with such directions as may be appropriate, or order the rehearing of the appeal before the Court of Appeal and as the justice of the case demands, the court may order a trial denovo in the court of first instance, including a constitutional matter and may make any necessary, incidental or consequential orders, including orders as to costs." 16 In conclusion, for the reasons given above, we hereby order as follows: We so order. Dated at Kampala this day of. 2025. Prof. Lillian Tibatemwa-Ekirikubinza Justice of the Supreme Court Percy Night Tuhaise Justice of the Supreme Court 17 \ We are mindful of the fact that as a second appellate court, this Court's jurisdiction does not extend to a re-evaluation of the facts, that being the prerogative of a first appellate court. We therefore order a rehearing of the relevant appeals before the Court of Appeal for it to re-evaluate and reappraise the evidence on record, and make an appropriate decision on the merits or demerits of a retrial. a) The decision of the Court of Appeal in Criminal Appeals Nos. 55, 62 and 67 of 2016 dated 2 nd May, 2019 is hereby set aside. b) The case files for Court of Appeal Criminal Appeals Nos. 55, 62 and 67 of 2016 shall immediately be returned to the Court of Appeal which shall constitute a new panel to hear and determine the appeals in accordance with this judgment. Ap.Lt. Mike J. Chibita Justice of the Supreme Court Elizabeth Musoke Justice of the Supreme Court Monica K. Mugenyi Justice of the Supreme Court 18 I X I CCA. <MJ?vrtGuX O 51 ^ ■ (^Uf^VULCet OMUvJ? 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