Court orders retrial of two soldiers after magistrate’s recusal
Justice Karoli Lwanga Ssemogerere ruled that the magistrate’s decision to continue hearing the case after formally recusing himself rendered all subsequent proceedings a nullity.
Court orders retrial of two soldiers after magistrate’s recusal
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The High Court in Kabale has ordered the retrial of two soldiers accused of assault occasioning actual bodily harm after finding that a magistrate who had recused himself from the case unlawfully resumed proceedings and acquitted them.
Justice Karoli Lwanga Ssemogerere ruled that the magistrate’s decision to continue hearing the case after formally recusing himself rendered all subsequent proceedings a nullity.
The judge consequently allowed an appeal by the prosecution and ordered that Criminal Case No. 227 of 2021, in which Col. Deo Kayita and Pte. Christopher Nyeko are accused, be tried afresh before a different magistrate.
The two soldiers had been charged with assault occasioning actual bodily harm, contrary to Section 219 of the Penal Code Act.
The case was heard before the Kisoro Chief Magistrates’ Court, where the prosecution called three witnesses.
However, on February 18, 2025, the trial magistrate recused himself from the proceedings.
The magistrate subsequently resumed hearing the case on March 12, 2025, and on August 5, 2025, delivered a ruling of no case to answer, acquitting the two accused.
The prosecution, dissatisfied with the decision, appealed to the High Court after obtaining leave to file the appeal out of time.
The appeal was based on one ground, that the trial magistrate erred in law and fact by proceeding to hear and conclude a case from which he had already recused himself, thereby occasioning a miscarriage of justice.
The appeal was argued through written submissions.
The prosecution, represented by state attorney Isaac Onyango from the Directorate of Public Prosecutions (DPP) in Kabale, argued that the magistrate’s decision to continue with the case after recusal was illegal and irregular.
The prosecution argued that the failure to follow the procedure rendered the subsequent proceedings illegal.
It further argued that once an illegality is brought to the attention of the court, it overrides all other considerations.
The State relied on a letter dated February 18, 2025, written by the trial magistrate to the Chief Magistrate of Kisoro and copied to the parties.
In the letter, the magistrate stated that one of the accused was known to him, creating a conflict of interest, and that he had therefore returned the file to the Chief Magistrate for further management.
The State argued that the letter clearly demonstrated that the magistrate had formally recused himself and could not lawfully resume the proceedings.
However, lawyer Justus Muhangi, representing the respondents, argued that there had been no valid recusal in law.
He contended that the magistrate had not given sufficient reasons for recusing himself and argued that a judicial officer’s oath to administer justice impartially should guide any decision to recuse.
Muhangi further argued that the prosecution did not object when the magistrate resumed hearing the case but instead continued participating in the proceedings.
He argued that the continuation of the proceedings had not prejudiced either party and cautioned that allowing random recusals could distort the administration of justice.
The lawyer cited a 2021 Supreme Court decision involving an application for the recusal of former Chief Justice Alfonse Chigamoy Owiny-Dollo, in which the court stated that litigants have no right to choose the judicial officers who hear and determine their cases.
However, the High Court judge rejected the respondents’ argument and found that there had been an effective recusal.
Justice Ssemogerere noted that the Constitution (Recusal of Judicial Officers) Practice Directions allow a judicial officer to recuse himself or herself either on the application of a party or on their own motion where their impartiality could reasonably be questioned.
The judge also referred to paragraph 6(3)(b) of the Recusal Practice Directions, which provides that where, during proceedings, a judicial officer becomes aware of a reasonable cause preventing him or her from continuing to handle a matter, the officer must state the reasons for recusal on record, notify the parties and return the file for reallocation to another judicial officer.
Justice Ssemogerere said the court record, together with the magistrate’s letter dated February 18, 2025, clearly demonstrated that the magistrate had made a decision to recuse himself.
The judge found that the basis of the recusal was also sufficiently explained in the letter, where the magistrate disclosed that the accused was known to him and that this created a conflict of interest.
“I find that the record reflects a decision to recuse, and the basis of the recusal is elaborated in the February 18, 2025 letter to the parties,” the judge ruled.
The judge therefore answered the first issue, whether there had been an effective recusal, in the affirmative.
Justice Ssemogerere ruled that the magistrate had erred in law by continuing to hear the case after formally informing the Chief Magistrate and the parties of his decision to recuse himself.
The judge said recusal is a formal decision requiring the judicial officer to abstain from participating in the proceedings because of a conflict of interest.
“I agree with counsel for the appellant that it was an error of law for the judicial officer to continue rather than abstain from proceedings after he recused himself,” Justice Ssemogerere ruled.
The judge held that the magistrate’s decision to continue with the proceedings rendered all subsequent proceedings in the lower court a nullity.
“The appeal is allowed. Criminal Case No. 227 of 2021 is reinstated for retrial before a different Trial Magistrate,” the judge ordered.