Court overturns Shs200m award to defilement convict

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The Court of Appeal has overturned a Shs200 million compensation award granted to a convict in an aggravated defilement case, ruling that the High Court acted outside its jurisdiction when it ordered the government to compensate him over alleged torture in prison.

However, the appellate court upheld the sentence imposed on Henry Muloki, setting aside the other orders made by the High Court judge, including the directive requiring the government to provide him with medical treatment and meet his lawyers’ expenses.

In their judgment, Deputy Chief Justice Moses Kazibwe-Kawumi, Justices John Kihika and Stella Alibateese ruled that the trial judge had erred by awarding damages against the government without giving it an opportunity to respond to the allegations.

“The judgment is a nullity and unenforceable,” the justices held, finding that the High Court had determined a claim that had not been properly instituted before it.

The appeal arose from a decision delivered by Justice Margaret Mutonyi at the High Court sitting in Mukono on June 8, 2017.

Muloki had been convicted of aggravated defilement on his own plea of guilty and sentenced to four and a half years in prison, representing the period he had spent on remand.

During the proceedings, however, the judge became concerned about his physical condition after he was brought to court while being carried by fellow inmates and took his plea while lying down.

When asked what had happened to him, Muloki told the court that he had been beaten by a prison warder identified only as Otim while working at Kitalya Prison farm.

The judge concluded that he had been tortured by a government agent and ordered his immediate release after sentencing him to the period already served.

She also directed the State to pay him Shs200 million for the pain, psychological torture and suffering allegedly inflicted on him. The Attorney General and Solicitor General were further directed to arrange payment of the award.

Dissatisfied with the decision, the State appealed, arguing that the judge had made findings against a government employee without summoning the officer to respond to the allegations or giving the government an opportunity to be heard.

Assistant Director of Public Prosecutions Samali Wakooli, who represented the State, argued that Muloki had identified the alleged assailant only by the name Otim, without providing his second name.

The State further contended that the compensation order was legally unjustified because the claim had not been properly brought before the court and there was no evidential foundation for the award.

In resolving the appeal, the justices emphasised the constitutional right to a fair hearing, noting that parties whose legal interests are affected by court decisions must be given an opportunity to defend themselves.

The court observed that the prison officer accused of assaulting Muloki had neither been summoned nor produced before the High Court to respond to the allegations.

“The appellant was effectively held liable for the actions of an unidentified and unexamined employee,” the justices said, adding that the failure to summon the officer or require his supervisors to produce him resulted in a miscarriage of justice.

The court also faulted the trial judge for directing the Attorney General and Solicitor General to arrange payment when the Attorney General had not been a party to the proceedings.

It noted that the Director of Public Prosecutions represents the government in criminal proceedings, while the Attorney General is responsible for representing the government in other legal proceedings, as provided for under the Constitution.

The judges further rejected the use of Section 33 of the Judicature Act, now Section 37, as the basis for awarding damages.

They explained that the provision empowers courts to grant remedies in respect of legal or equitable claims properly brought before them, but does not authorise a judge presiding over a criminal trial to initiate and determine a separate civil claim that has not been filed.

“If the respondent had a cause of action against the appellant, he ought to have instituted it in accordance with the Civil Procedure Rules and served the proper party, namely, the Attorney General,” the court held.

The justices added that Muloki could have sought redress under Article 50(1) of the Constitution, which allows a person whose fundamental rights have been violated or threatened to apply to a competent court for remedies, including compensation.

They also clarified that Sections 125 and 126 of the Trial on Indictments Act, which provide for compensation to victims of criminal offences, could not be relied on to award damages against the State for alleged injuries unrelated to the offence for which the accused had been convicted.

Conclusively, the Court of Appeal allowed the State’s appeal and set aside all the orders made by the High Court in Criminal Case No. 205 of 2012, except the sentence imposed on Muloki.

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