CRIMINAL PROCEDURE

The Criminal Procedure is the process through which penal and criminal law are applied. That is the
process of the application of penal laws. It is procedural law and not substantive law.
JURISDICTION
Laws Applicable
The Constitution 1995
The Criminal Procedure Code Act
The Magistrate Court Act cap 16.
The Trial on Indictments Act cap 23.
The Penal Code Act cap 120
The Magistrates’ Courts (Amendment) Act 2007
The Penal Code (Amendment) Act, 2007
The Magistrates Courts (Magisterial Areas) Instrument, 2007

Criminal jurisdiction is the power which the sovereign authority of a state has vested in the court and
other tribunals established by law to determine questions which arise out of crimes committed in that
state. In other words, criminal jurisdiction is the power vested in courts to hear and determine criminal
cases.
Before proceedings commence in any case the question which arises is whether the offence
committed is triable within the territorial jurisdiction of Uganda and if so which court has power to
hear the case. (for example s.4 of the PCA CAP 120 the jurisdiction of the courts of Uganda extends
to every place within Uganda except for cases of treason committed by a Ugandan citizen or person
ordinarily resident in Uganda).
There are three aspects of jurisdiction which include
1. Territorial jurisdiction
2. Local jurisdiction
3. power to try cases

Territorial Jurisdiction
The first question which needs consideration is whether the court has territorial jurisdiction.

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S.4 of the Penal Code Act cap 120 lays down the extent of the jurisdiction of the courts of Uganda.
The general rule under that section is simply that the jurisdiction of the Ugandan courts is confined
to crimes committed within the territory of Uganda. Subsection 2 however provides for an exception
where offences committed outside Uganda can be tried in Uganda. It provides that notwithstanding
subsection (1), the courts of Uganda shall have jurisdiction to try offences created under sections 23,
24, 25, 26, 27 and 28vcommitted outside Uganda by a Uganda citizen or person ordinarily resident
in Uganda. These include treason, acts intended to annoy the person of the president, concealment of
treason, terrorism, promoting war on chiefs, etc…
Subsection 3 further states that for the avoidance of doubt, the offences referred to in subsection (2)
committed outside Uganda by a Ugandan citizen or a person ordinarily resident in Uganda shall be
dealt with as if they had been committed in Uganda.
It is important to note that sometimes an offence can be committed partly within Uganda and partly
outside Uganda. In this case section 5 of the Penal Code applies which stipulates that \;
When an act which, if wholly done within the jurisdiction of the court, would be an offence
against this Code is done partly within and partly beyond the jurisdiction, every person who
within the jurisdiction does or makes any part of such act may be tried and punished under
this Code in the same manner as if such act had been done wholly within the jurisdiction
It should be noted however that under international law, there is no restriction on the competence of
the court to prosecute its own nationals for crimes committed outside its territorial jurisdiction if this
right to national jurisdiction is conferred by statute. (National jurisdiction).
Uganda vs Mustapha Atama 1975 HCB 254
In this case, the accused a Kampala business man was charged in the chief magistrate’s court with
obtaining money by false pretence contrary to section 9 of the PCA cap 106. The prosecution alleged
that the accused while in the Republic of Zaire obtained shs 3360/- from the charge-d’ affaires of the
Ugandan embassy by falsely pretending that he required the money for the maintenance of eight
Ugandan soldiers who were stranded in Zaire while on an official mission. The question was whether
Ugandan Courts had jurisdiction over the matter as the offence had been committed in the Republic
of Zaire, though in Uganda’s own embassy.
Held; Where as the state is competent to prosecute its own nationals for offences committed abroad
on the basis of nationality, however exercise of jurisdiction on the basis of nationality is not
automatic, but municipal courts must be enabled to do so by legislation. Section 5 of the PCA confers
jurisdiction to the courts of Uganda to try offences that are committed partly within and partly without
Uganda. In the absence of law enabling Ugandan courts to try cases committed wholly outside
Uganda, the nationality principle will not apply.
Leo Kahigwa and Amirali Karamali Rashid v Uganda [1964] 1 EA 451
The first appellant was charged with theft as an agent of 547 bags of coffee entrusted to him to take
from the Congo through the Uganda Customs post at Mpondwe for delivery to an agent of Ralli
Brothers at Kasese, Uganda. The coffee was bought in the Congo by one B., the complainant, who
put the first appellant in charge of the four lorries which were conveying the coffee to Uganda. The

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first appellant while at Kasindi in the Congo, instructed the four lorry drivers that, after clearing the
Uganda customs at Mpondwe, they should drive their lorries with the coffee to Fort Portal instead of
Kasese and the drivers drove past Kasese where the coffee was intended to be delivered. The coffee
was sold and delivered to the second appellant at Fort Portal who paid Shs. 75,000/- to the first
appellant. The second appellant was separately charged with receiving stolen property and both the
appellants were jointly tried and convicted. It was contended that the instruction to divert the coffee
to Fort Portal was an overt act sufficient to constitute theft; accordingly the theft was completed at
Kasindi and the magistrate had no jurisdiction to try the case.
held
The theft was not completed until the sale of the coffee to the second appellant at Fort Portal, because
it was only then that the overt act, notably the diversion of coffee from Kasese to Fort Portal, could
be said to have resulted both in wrongful gain to the first appellant and a wrongful loss to B. That as
the theft was committed at Fort Portal within Uganda the magistrate had jurisdiction to try the case

Local Jurisdiction
After it has been established that the alleged offense was committed within the territorial boundaries
of Uganda, the next question will be whether the alleged offence was committed within the local
limits of the jurisdiction of the court.
The general rule is that every offence must be tried by a court within the local limits of the jurisdiction
where it was committed under s.31 of the MCA cap 16.
S.2 MCA empowers the minister to divide Uganda into magisterial areas for the purpose of the Act.
It is under this provision that the Magistrate Courts(Magisterial areas) Instrument of 2007 was
promulgated.
Local jurisdiction is generally provided for under S.31 MCA which provides that Every magistrate’s
court has authority to cause to be brought before it any person who is within the local limits of its
jurisdiction and is charged with an offence committed within Uganda, or which according to law may
be dealt with as if it had been committed within Uganda, and to deal with the accused person
according to its jurisdiction.

Section 32 MCA provides that should the accused person be found outside the area in which the
offence was committed, the court in whose local limits of jurisdiction he is found will have him
brought before it and cause him to be removed from custody to the court having jurisdiction to hear
the offence. i.e, if the offence is committed in Mbale and the fugitive is in Masaka, the court in
Masaka will hand him over to the Mbale court which has local jurisdiction over the offence that was
committed by the accused.
However S.33 requires issue of a warrant, it provides; Where any person is to be sent in custody in
pursuance of section 32, a warrant shall be issued by the court within whose jurisdiction the
person is found.

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The other area of jurisdiction is provided for under S.34, which is different from S. 31, it provides
that Subject to the provisions relating to transfer conferred by this Act, every
offence shall ordinarily be inquired into or tried by a court within the local
limits of whose jurisdiction it was committed
Where the offence is committed partly an offence is committed partly in one local area and partly in
another, any court having jurisdiction in either the two places may hear the case. As provided for
under S.37 of the MCA.
For example if property is stolen in Kampala and received in Masindi, a case on a charge of theft or
receiving stolen property may be tried either in Kampala or Masindi.

3. Power to try cases.

Even where an offence is committed in Uganda within the territorial boundaries and is committed
within the local limits of jurisdiction of a particular magisterial area, the judicial officer handling the
case will still have to ask himself the question whether he has powers to try the case, or whether the
court he presides over, has jurisdiction to hear the case.
The power to try cases is based on the fact that some cases originate from the Magistrate Courts to
the High court while others originate from the High Court.
Judicial functions are carried out by judges and magistrates and in order to ascertain which of these
judicial officers have jurisdiction to try a case, we have to look at the power to try cases.
For example; The Anti Terrorism Act No 14 of 2002 section 6, provides thus;
The offence of terrorism and any other offence punishable by more than ten years imprisonment
under this act are triable only by the high court and bail in respect of those offences may be granted
only by the Highcourt.
This means that the high court and only the high court has powers to try the offence of terrorism
under the Anti terrorism Act as stressed by Court in Uganda Law Society v Attorney General.
(Constitutional petition no 18 of 2005;)
In regard to magistrates, they are divided into grades. S.4(2) MCA provides for the 3 grades of
magistrates that is Chief Magistrate, Magistrate Grade one and Magistrate Grade two. Under the
Magistrates’ Courts (Amendment) Act 2007, the post of Magistrate Grade III was abolished.
S.4(3) provides that the powers and jurisdiction of a magistrate shall be determined by the grade of
his or her appointment and the powers and jurisdiction conferred upon that grade by this Act and by
any written law for the time being in force.

When looking at the power to try cases, 3 aspects must be dealt with. That is the jurisdiction, the
sentencing powers and the appellate jurisdiction.

POWERS OF A CHIEF MAGISTRATE.

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The original jurisdiction of a chief magistrate’s court is governed by section 161 (1) (a) MCA. A
chief magistrate may try any offence other than an offence in respect of which the maximum penalty
is death. Examples of these are murder, treason, rape, aggravated robbery, etc…
Sentencing powers of a chief magistrate; A chief magistrate may pass any sentence authorised by
law under section 162(1) (a) MCA. This means that he can pass a maximum sentence of imprisonment
for life and can impose a fine of any amount. that attempt to commit rape S.125
Appellate jurisdiction.; A chief magistrate hears appeals from decisions of magistrates Grade II
This is provided for under section 204(1)(b) MCA.

POWERS OF A MAGISTRATE GRADE I

A magistrate Grade I may try any offence other than an offence in respect of which the maximum
penalty is death or imprisonment for life. This is stipulated under section 161 (1) b) MCA. i.e
abduction 126.-7 years.

Sentencing powers of a magistrate grade I; Under section 162 I) b) MCA, as amended provides
that a magistrate grade I may pass a sentence of imprisonment for a period not exceeding ten years
or a fine not exceeding Four million, Eight Hundred Thousand Shillings or both.

In the case of Uganda vs Nicholas Okello (1984) HCB 22

The charge in this case was for attempted defilement contrary to section 123 (3) pc cap 106 of which
the maximum sentence was 18 years imprisonment. The magistrate grade I tried this offence and
sentenced the accused to 18 years imprisonment. He appealed against sentence and conviction. It was
held that the magistrate had no powers to try such offence and therefore the trial was a nullity.

POWERS OF A MAGISTRATE GRADE II

The magistrate grade II may try any offence under any written law other than the offences and
punishments specified in the first schedule of the MCA. Section 161 (1)c) MCA
The sentencing powers of a magistrate grade II are limited to imprisonment for a period not
exceeding three years or a fine not exceeding half a million shillings. S. 162 (1) c) MCA.

In the case of Uganda v Kiwanuka [1979] HCB 210.

In this case the magistrate grade II tried the accused of an offence brought under the fire arms act,
which was an offence stipulated under the first schedule to the MCA to which a magistrate grade II
had no powers to try.
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It was held that the conviction of the accused and sentence imposed on him by the magistrate grade
II in disregard of the provisions of the first schedule was illegal.
S.1 of The Magistrates’ Courts (Amendment) Act 2007 abolished the grade of Magistrates Grade III

POWER TO TRANSFER CASES;

The High court has power to transfer a case from one magistrate court to another. S.41 MCA gives
instances where a court can transfer the case. In order to exercise the power under this section, the
court may act on its own volition, following a report from the lower court or it may entertain n
application in this regard.
In order for this power to be exercised there are certain things that must be in place and these are
stated under S.41(1) MCA. The procedure that is followed is stated under S.41(3) which is to the
effect that the application is by way of notice of motion supported by an affidavit in cases where an
accused person is the applicant. If the DPP is the applicant the affidavit is not necessary.
In order to prevent trial by surprise, the accused person when making this application is expected to
notify in writing the office of the DPP about the intended application and this should be at least 24
hours prior to the hearing of the application. S. 41(4)
S.41(5) provides that when an accused person makes any such application, the High Court may direct
him or her to execute a bond, with or without sureties, conditioned that he or she will, if convicted,
pay the costs of the prosecutor.

Under S.41(1)(g) a case can be transferred from that a criminal court subordinate to its authority to
any other such criminal court of equal or superior jurisdiction. Further S. 167 provides for the power
to transfer case to superior court. It states;
If a person is charged with an offence before a magistrate’s court and it appears to the Director
of Public Prosecutions at any stage of the proceedings that the case is one that ought to be
tried by a court superior to that magistrate’s court, the magistrate shall, on application made
by or on behalf of the Director of Public Prosecutions before the close of the case for the
prosecution, stop further proceedings and remand the accused person in custody to appear
before a superior court

CRIMINAL JURISDICTION OF OTHER COURTS.

Art.129 of the constitution gives a list of the courts of judicature in Uganda and these are;
a) The supreme court of Uganda
b) The Court of Appeal of Uganda
c) The High Court of Uganda

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d) Such subordinate courts as parliament may by law establish

Jurisdiction of the Supreme Court.

The supreme court of Uganda is a superior court of record and a final court. It doesn’t have original
jurisdiction like the High court but only has appellate jurisdiction, meaning that it hears appeals from
the court of appeal. (Court of Appeal rules, directions 1996), art. 132(2) of the constitution.
Jurisdiction of the Court of Appeal.
It has appellate jurisdiction and hears appeals from decisions of the High court. Art. 134(2)
It also has powers to hear cases or petitions regarding any question as to the interpretation of the
constitution. Art. 137. it is a constitutional court.

Jurisdiction of the High Court

Art 139(1) confers on the High court unlimited original jurisdiction in all matters with such appellate
and other jurisdictions as may be conferred on it by the constitution or any other law.
The High Court therefore has unlimited jurisdiction over all criminal matters. Trail before the High
Court is governed by the provision of the Trial on Indictments Act (TIA). S.1 T.I.A cap 23 provides
that the high court has jurisdiction to try any offence under any written law and may pass any sentence
authorised by law. EXCEPT, that no criminal case can be brought under the cognisance of the High
court for trial unless the accused person has been committed for trial to the high court in accordance
with the MCA.

Committal proceedings.
Committal proceedings are governed by S. 168 of the MCA.
It is provided under subsection (1) that when a person is charged in a magistrate’s court with an
offence to be tried by the High Court, the Director of Public Prosecutions shall file in the magistrate’s
court an indictment and a summary of the case signed by him or her or by an officer authorised by
him or her in that behalf acting in accordance with his or her general or special instructions.
(2) The summary of the case referred to in subsection (1) shall contain such particulars as are
necessary to give the accused person reasonable information as to the nature of the offence with
which he or she is charged.
(3) When a person charged with an offence to be tried by the High Court appears before a magistrate
and the Director of Public Prosecutions has complied with subsection (1), the magistrate shall—
(a) give the accused person a copy of the indictment together with the summary of the case;

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(b) read out the indictment and the summary of the case and explain to the accused person the nature
of the accusation against him or her in a language he or she understands and inform him or her that
he or she is not required to plead to the indictment;
(c) commit the accused person for trial by the High Court and transmit to the registrar of the High
Court copies of the indictment and of the summary of the case.

(4) If a person committed for trial by the High Court is on bail granted by any court, without prejudice
to his or her right to apply to the High Court for bail, the bail shall lapse, and the magistrate shall
remand him or her in custody pending his or her trial.
This section was challenged in the case of Sam Kuteesa v Attorney General and was declared null
and void.
Sam Kuteesa and Ors v Attorney General CONSTITUTIONAL PETITION NO.46 OF 2011

The petitioners challenged the constitutionality of section 168 (4) of the Magistrate’s Courts Act vis-
à-vis Article 23 (6) (a) of the Constitution. They sought court to declare and order that the impugned
section is inconsistent with and in contravention of the constitution, that bail granted by a Magistrate
to an accused does not lapse by reason of that person being committed for trial to the High Court and
that the committing Magistrate’s court has power to maintain or grant bail to the person being
committed.

Held;

To the extent that section 168 (4) allows an inferior court to cancel the bail granted to an accused by
a superior court, such as the High Court, which has unlimited original jurisdiction in all matters and
to which decisions of inferior courts go by way of appeal under Article 139, is in our view,
inconsistent with the said Article 139. It is also in contradiction with section (4) of the Judicature
Act, cap.13.

Where, therefore, a court of law, in the exercise of its judicious discretion, as part of judicial power,
decides to grant bail to a person arrested in respect of a criminal offence, it would be contrary
to Article 126 (1) of the Constitution, for another court, by the authority of section 168 (4) of the
Magistrates Courts Act, to override the decision granting bail by automatically lapsing the same on
the sole ground that the person, the subject of the bail, is being committed to the High Court for trial.

That section 168 (4) rescinds the constitutionally guaranteed power of the court to grant bail, through
the court’s exercise of its discretion. It acts counter to the fundamental right of an accused person to
apply for and receive the discretionary consideration of the court before which such accused person
is brought, to maintain the already granted, or to grant bail. Its purpose and effect, if construed in
accordance with the 1995 Constitution, results in its being contrary to Articles 23 (6) (a) and 28
(1) of the Constitution

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That pursuant to Article 274 of the Constitution, section 168 (4) of the Magistrate’s Courts Act must
be construed in such a way as to provide that:

1. Bail granted, by a court of competent jurisdiction, to a person arrested in connection of a

criminal case does not automatically lapse by reason only of the fact of that person being
committed to the High Court for trial.
2. Subject to being competently seized of jurisdiction under the law,the court committing an
accused person to the High Court for trial, has power derived from Article 23 (6) (a) of the
Constitution to maintain bail already granted or to grant bail to an accused person, or to
cancel bail for sufficient reason, after hearing the parties concerned on the matter.

It must be noted that trials before the High Court are aided by assessors. S.3(1) TIA
The place and date of the trial sessions are directed by the Chief Justice or the presiding judge.

Sentencing powers of the High Court

Under section 2 of the T.I.A, the high court may pass any lawful sentence combining any of the
sentences which it is authorised by law to pass.

Appellate Jurisdiction.
The Highcourt hears appeals from decisions of the chief magistrate and magistrate grade I. section
204 (1) a) MCA.

Structure of the Military Court System/Court Martial.

Does the General Court Martial have concurrent jurisdiction with the High Court which is
seized with unlimited original jurisdiction under Art. 139 (1) of the Constitution?
In Constitutional Petition No 6 0f 2004 Tumushabe Joseph Vs Ag, the GCM was held to be
subordinate to the High Court and this confirmed by the Supreme Court in Uganda Law Society v
Attroney Genral.

In accordance with the mandate under article 210 of the constitution, to regulate UPDF, parliament
enacted the UPDF act and created the GCM under s. 197(2) of the UPDF Act.
The Field Court Martial is the highest court- not permanent but constituted when necessary.
There are also division court martial
The General Court Martial
Court Martial Appeal Court

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Below are unit disciplinary committees that are seized with jurisdiction to try and determine various
types of offences with the exception of serious ones like murder, robbery and rape.
When looking at the structure of the Military courts, there is no doubt they are special courts
compared with the ordinary civil courts, referred to as courts of judicature envisaged under art.129(1)
of the constitution.
Looking at the GCM, appeals from that court go to the Court Martial Court of Appeal court and
appeals from that court go to the Court of Appeal of Uganda and not the High Court and eventually
to the Supreme Court.
They deal with different fact situations. - Court martial courts are not courts of judicature but military
courts. Unlike the other special courts like Industrial court, Tax Appeals Tribunals and, decisions
from the GCM are not appealable to the High Court but to the Court Martial Court of Appeal.

EXTRADITION

The Law applicable is the Extradition Act Cap 117.

This is an aspect of jurisdiction which deals with the process of surrendering a fugitive offender from
the surrendering country (Uganda) to the country where he committed the offence known as the
requesting country for the purpose of having him/her tried and sentenced for that offence.
It should be noted that extradition can only be demanded pursuant to an extradition treaty between
the two states i.e the requesting state and the surrendering state. There is no legal obligation to
extradite in the absence of a treaty or an agreement between the states.
S. 2 provides that where an arrangement has been made with any country with respect to the surrender
to that country of any fugitive criminal, the Minister may, by statutory instrument, order that this Part
of this Act shall apply in the case of that country subject to such conditions, exceptions and
qualifications as may be specified in the order, and this Part shall apply accordingly. Every order
made under this section shall be laid before
Parliament.

The extradition Act under S.4 retains the reciprocal relationship between Uganda and other
commonwealth countries. As such the absence of reciprocal provisions or non existence of
arrangements with a particular commonwealth country can lead to the discontinuance of the
extradition provisions with that country.

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Thus S.5 provides that
Whenever it appears to the Minister that the law of a country to which section 4(1) applies no
longer contains reciprocal provisions or that an arrangement with any country referred to in
section 4(2) is no longer in force, the Minister may, by statutory instrument, discontinue the
application of this Part of this Act to that country

Definitions
It is clear that the Act applies to fugitive criminals making it necessary to define this. Who is a
fugitive criminal for purposes of the Extradition Act?

S.1 c) defines a fugitive criminal as any person accused or convicted of an extradition crime within
the jurisdiction of any other country who is in or suspected of being in Uganda.
What is an extraditable crime?
Under the extradition act cap 117, it is important first to establish if the offence is actually extraditable
or not. An Extraditable crime under section 28 of the Act is a crime which if committed within the
jurisdiction of Uganda, would be an indictable offence described in the schedule to the act. For
example, criminal homicide and similar offences, abduction, rape, defilement, bigamy, etc… theft is
not an extraditable offence.
Therefore to qualify as an extraditable offence,;
a) it must be indictable in Uganda if committed there. i.e it must be an offence under our laws-
chewing gum on the street is not an offence in Uganda but it is in Singapore… so Uganda would not
extradite a Singaporean or any other fugitive for having chewed gum while on the streets of
Singapore.
(not to flush after use of a public restroom)
b) it must be an offence described in the schedule to the Act. It may be an indictable offence in
Uganda but not described in the schedule. For example theft is not listed as an indictable offence
under the schedule.
R v Governor of Brixton Prison, Ex parte Gardner
Warrants for the arrest of the applicant were issued in New Zealand, mainly in each instance in respect
of an alleged obtaining of a particular sum of money with intent to defraud by means of false
pretences, the particulars of the false pretences being that the applicant falsely represented that a
company with which he was concerned would supply certain named distributors with cosmetics to a
named value. The applicant was arrested in England; the Secretary of State, pursuant to s 5a of the
Fugitive Offenders Act 1967, issued an authority to proceed, and the applicant was committed to
prison pending his extradition to New Zealand. On an application for habeas corpus, a preliminary
point of law was taken that the charges disclosed on the warrants did not disclose an offence known
to English law, in that the particulars of the offence alleged described the false pretences as a

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representation of a future event, viz, a false pretence that the company would supply the distributor
with cosmetics.
Held – The authority to proceed, albeit in general terms, must be taken as relating to the offences of
which the applicant was accused in New Zealand, viz, in the absence of any indication to the contrary,
those which were set out in the warrants which accompanied the request to the Secretary of State;
and, as it was clear that the acts complained of in those warrants would not constitute offenses under
the law of England, a writ of habeas corpus should issue.

Restrictions on surrender of criminals.

The surrendering of the fugitive criminal is not automatic despite the existence of an arrangement
with the requesting country. There are a number of restrictions and conditions that must first be
established. The restrictions are contained in S.3 of the Act.
1. The offence must not be of a political character.
Under 3(a) a fugitive criminal shall not be surrendered if the offence in respect of which his or her
surrender is sought is one of a political character or if it appears to the court or the minister that the
requisition for his or her surrender has in fact been made with a view to try or punish or her for an
offence of a political character;
This provision is further strengthened by S. 23 of the Act which states that The Minister shall not
transmit a requisition under section 22 and a warrant shall not be endorsed for the apprehension of
any person if the offence is one of a political character or it appears to the Minister or a court that the
requisition has in fact been made with a view to try or punish him or her for an offence of a political
character.

From these two provisions it is necessary to define an offence of a political character and this was
done in the cases of Re Gastioni and R v Meunier.

In Re Castioni (1891) 1 QB 149

Castioni was a swiss who escaped from Switzerland into England after shooting one Rossi a member
of the government of the canton. Castioni shot and killed Rossi during an uprising where a number
of government officials were arrested because the citizens of canton were dissatisfied with the manner
in which the government was being run. Castioni and others broke into the armoury, seized arms and
went on a rampage. They went straight for the municipal palace, broke it open and entered. Rossi
who was standing in one of the corridors of the palace was shot and killed by Castioni who then
escaped to England where extradition proceedings started against him. Castioni’s solicitor argued
that this was an offence of a political character and that the shooting was incidental to and formed
part of a political disturbance. His lawyer further argued that Castioni had no political motives and
that he had done the shooting simply to gratify his personal malice.
It was held that Castioni was an active participant in a political uprising and that the shooting was
done in the furtherance of the aim of getting rid of a government. It should be noted that not

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everything that is done during the period of a political uprising can be said to be of a political
character.
According to Hawkins J, the expression “political character” means incidental to or forming part of
a political uprising.

In R v Meunier (1891) 1 QB 149

The accused was an anarchist in france. He was charged there with wilfully causing two explosions
killing two people in a café and another at a military barracks after which he escaped to England
where extradition proceedings were started against him and he was arrested. It was argued that the
incident at the café was not an offence of a political character. The question to be answered was
whether the incident or the attack at the barracks amounted to an offence of a political character.
It was held that in order to constitute an offence of a political character, there must be two parties in
a state, one struggling to impose a government of its own over the other and the offence must have
been committed in pursuance of that objective. Meunier’s conduct didn’t fall within this description.

Question
Kony attempts to murder the vice president of Uganda while in Newyork. He flees the country and
takes refuge in Sweden. The United States government then institutes extradition proceedings against
Kony in a Swedish court. In your view, do you think Kony’s lawyers would successfully raise the
defence of the offence being of a political character against the extradition proceedings?
In Cheng v the governor of Pentoville Prison (1973) 2 WLR 746
The applicant was a member of a Formosan organisation in the United States of America, which was
dedicated to the overthrow of the existing regime in Taiwan. The organisation planned a
demonstration in the State of New York against the visit of a prominent member of the regime. The
applicant was present when, in the course of the demonstration, a shot was fired. The applicant was
charged with, and convicted of, the attempted murder of the Taiwanese visitor, contrary to the New
York State Penal Law. He was granted bail pending sentence. While on bail, he fled to Sweden.
Sweden acceded to a request for his extradition and he was in the process of being returned by air to
the United States when he fell ill. He was landed at London airport and taken to a prison hospital
where he was detained pursuant to the Aliens Order 1953a. A request was made by the United States
for his extradition.
He was brought before the chief metropolitan magistrate at Bow Street, who ordered him to be
detained in prison pending his extradition. The applicant applied for a writ of habeas corpus,
contending that the offence in respect of which his extradition was sought was ‘one of a political
character’ within the meaning of s 3b of the Extradition Act 1870.
Held

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The application would be refused for (i) on the true construction of s 3 the words ‘offence … of a
political character’ referred only to an offence of a political character as between the applicant and
the state requesting his extradition, and did not extend to an offence of a political character between
him and any other state; and (ii) on the evidence the applicant and the United States were not at odds
on an issue connected with the political control or government of the United States
It was held on further appeal that this wasn’t an offence of a political character because the offender
had not been taking political action against the American government. It was further stated that the
American government was not concerned with its relation with Taiwan asking for extradition. The
American government was merely concerned with the enforcement of its American criminal laws.

2..The second restriction on surrender is that the offence must be the extradition crime and not
any other.

S.3(b) provides that the fugitive criminal shall not be surrendered unless it is proved that there exists
a law or arrangement in the country seeking his surrender that he shall not, unless he or she has been
restored or has had an opportunity of returning to Uganda be detained or tried in that country for any
offence committed prior to his surrender other than the extradition crime proved by the facts on which
the surrender is grounded.
That is it must be proved to Uganda that once the fugitive is extradited, he shall only be tried for the
offence for which the extradition was sought and granted. (If they come up with any other offence
then the criminal must be given an opportunity to be returned to Uganda.
3. another restriction is where the fugitive is a criminal in the surrendering state.
S.3 C) provides that if a fugitive criminal is being accused for having committed an offence in
Uganda, not being the offence for which his or her surrender is sought, or is undergoing sentence
under any conviction in Uganda, he shall not be surrendered until after he or she has been discharged
either by acquittal or by expiration of his sentence
4. Finally, under section 4 d), a fugitive criminal shall not be surrendered by the Ugandan authorities
until the expiration of fifteen days from the date of his or her being committed to prison to await his
or her surrender..

Who can be extradited?

s.1 c) a fugitive criminal- any person accused of an extraditable crime committed outside Uganda
Secondly, s.7, every person who is accused or convicted of; counselling, Procurer, Aider and abettor,
Accessory after the fact-
The above means that a fugitive criminal and or parties to the crime can be extradited.
Procedure for the surrender of criminals under cap 117.
1. Requisition.

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S. 22 provides that a requisition for the endorsement of a warrant shall be made in the first instance
by a diplomatic representative, consular officer or other appropriate authority of the country
concerned to the Minister who may transmit it to a magistrate to proceed in accordance with this Part
of this Act.

Under section 8(1) of the E.A a requisition for the surrender of a fugitive criminal who is in or
suspected of being in Uganda shall be made to the minister by a diplomatic representative or consular
officer of that country.
The minister upon receipt of the requisition will signify in writing to a magistrate informing him or
her that a requisition has been made and will require the magistrate to issue a warrant for the
apprehension of the fugitive criminal S.8(2)
However where the minister is of the opinion that the offence of which the fugitive is being requested
is one of a political character, he may refuse to make an order and may order the magistrate to have
the criminal discharged from custody. S.8(3)

2..Procedure of issuing a warrant of arrest against a criminal.

A warrant of arrest against a fugitive criminal may be issued by magistrate under the following
circumstances;
1) S.9 1 a) on the receipt of orders of the minister, under s.8(2)or
2) On such evidence as would in his opinion justify the issue of a warrant if the crime had
been committed in Uganda. (i.e, where a complaint has been lodged and such evidence produced that
shows that a crime was committed outside Uganda)
3) S.9(2) a magistrate who issues a warrant of arrest without the orders of the minister shall
be required to send a report of the facts, together with the evidence and complaint to the minister who
may order for the cancellation of the warrant if dissatisfied with the evidence.
4) S.9(3) a fugitive criminal who is apprehended on a warrant must be produced before a
magistrate within twenty-four hours.

3..Hearing of cases and evidence.

After a warrant of arrest has been issued, the magistrate will go ahead to hear the case in the same
manner and with the same powers and criminal jurisdiction as he would have exercised in a case
committed within Uganda. S.10
The magistrate must receive and hear all the evidence which may be tendered to show that the crime
of which the prisoner is accused is an offence of a political character or is not an extradition crime.
S.10 (2)

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After the magistrate has determined that the crime is an extradition crime, and has also proved that
the foreign warrant is duly authenticated, then the magistrate will commit the fugitive criminal to
prison to await the warrant of surrender from the minister. (s.11)
The minister shall then send a report on the case and a certified copy of the warrant of apprehension
to the minister for his perusal.
The magistrate shall then be required to inform the fugitive that he will not be surrendered until the
expiration of fifteen days and that he or she has a right to apply for an order of habeas corpus.
Upon the expiration of the fifteen days, the minister shall if no other orders are made, may by warrant
order the fugitive criminal to be surrendered to such person duly authorised to receive the fugitive.
S.12 (2)
If the fugitive criminal is not surrendered and conveyed out of the country within two months after
the committal, any judge of the high court may order that the criminal be discharged out of custody
unless sufficient cause is shown to the contrary. S.13
CRIMINAL SUMMONS
A criminal summon is a simple court document that contains a number of facts justifying an inquiry
into a complaint against an accused person and requiring him to attend the inquiry. In other words, it
is a document, issued by the court to be served on the person addressed in it, requiring that person to
appear before court on the date specified in the document to answer charges brought against him/her.
Forms and contents of a criminal summons.
According to section 44 (1) of the MCA, every summons must be in writing, prepared in duplicate,
signed and sealed by the magistrate or such other officer as the chief justice may from time to time
direct.
S.44(2) every summons must be directed to the person summoned and shall require him or her to
appear at a place, date, time indicated therein before the court having jurisdiction to inquire into and
deal with the complaint or charge.
S.44(3) a summons must also state shortly the offence with which the person against whom it is
issued is charged. This is basically for purposes of letting the accused know and prepare for the charge
he is being compelled to answer.
Service of Summons
Service of summons to accused personally
According to section 45 (1) MCA, every summons must be served by a police officer or an officer of
the court issuing it or any public servant but in practice, a summons is served by a police officer or
an officer of the court called a process server. A summons must be served onto the person to whom
it is addressed personally but the section states, if practicable.
The summons is served on the accused by giving him a duplicate of the summons and in practice he
must sign the original copy of the summons. S.45(2) MCA provides that every person on whom a

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summons is so served shall, if so required by the serving officer, sign a receipt of it on the back of
the original summons.
Service of summons when person/accused cannot be found.
Sometimes it may not be possible after the exercise of due diligence to serve the accused personally,
in which case service of the summons may be effected by leaving the duplicate of the summons for
the accused with an adult member of the family or the accused’s servant who normally resides with
him, or by leaving it with his employer.
The person with whom the summons is left, if so required by the process server, must sign receipt of
it on the back of the original summons.
S. 46 MCA provides that where the person summoned cannot, by the exercise of due diligence be
found, the summons may be served by leaving the duplicate for the person with some adult member
of his or her family or with his or her servant residing with him or her or with his or her employer;
and the person with whom the summons is so left shall, if so required by the serving officer, sign a
receipt of it on the back of the original.
Procedure when service cannot be effected.
S.47 MCA, if service in the manner provided by sections 45 & 46 of the MCA cannot by the exercise
of due diligence, be effected, the serving officer shall affix the duplicate of the summons to some
conspicuous part of the house or home stead in which the person summoned ordinarily resides, and
thereupon the summons shall be deemed to have been duly served.

Service of a criminal summons on a company.

It is common knowledge that in law a body corporate is a legal person criminally liable except in
certain cases, to the same extent as a natural person. For this reason, provision has been made for
compelling a body corporate to answer charges against it in a court of law.
According to section 49 of the MCA, service of summons on an incorporated company or other body
corporate may be effected by serving it on the secretary, local manager or other principal officer of
the corporation or by registered letter addressed to the chief officer of the corporation or by registered
letter addressed to the chief officer of the corporation at the registered office of the company or body
corporate in Uganda.
Service of criminal summons on a body corporate can be done by sending the summons by registered
mail addressed to the chief officer of the company, secretary, local manager or other principal officer
of the company. These officers of a company are deemed competent to plead on behalf of the
company.

Proof that service was effected.

Under section 50, a summons may be served at any place in Uganda. So sometimes it may be
necessary to prove that a summons was served especially
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a) where the summons was served outside the local limits of jurisdiction of the presiding court
b) if the accused for whom the summons was intended does not appear at the place, date, and
time indicated, the court might either on its own or upon application by the prosecution decide to
issue a warrant for his apprehension.
But before the court does so, it will be necessary to show by evidence that the accused was served
and had deliberately refused to obey the summons.
Under section 51 of the MCA, ordinarily proof of service of summons shall be given by calling the
process server to give evidence on oath that service was effected. But where the officer is not present
or the summons was served outside the local limits of the jurisdiction of the issuing magistrate, proof
may be effected by the person with whom the summons was left, swearing an affidavit before a
magistrate and presenting the original summons duly endorsed in the manner described above.
Even if the original summons is not endorsed, the affidavit shall be admissible in evidence if the court
is satisfied from the statements made in it that service of the summons has been effected properly. S.
51(2) MCA.
From what has been discussed above, under what circumstances will an original summons not be
endorsed?
Example of an affidavit;
THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATE’S COURT OF MPIGI AT MPIGI
CRIMINAL CASE NO 72 OF 2007
UGANDA------------------------------------PROSECUTION

VERSUS

K. DDUMBA---------------------------------------------------ACCUSED

AFFIDAVIT OF SERVICE

I JJ WILFRED of Ms. Firm A & Co. Advocates P.O. Box 7062,Kampala do solemnly swear and
state on oath as follows:
That I am a process server of all courts of judicature and this Honourable Court, working with Ms.
Firm A & Co. Advocates.
That on the 23rd day of February 2007 I received a criminal summons serving upon K. Ddumba the
accused in this matter.
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That on the 29th day of February, 2007 I proceeded to the accused’s place of residence at Wamala
village Ngando Butambala, a place well known to me.

That on reaching the accused’s place I found there his son who identified himself to me as Asuman
Ddumba and son to the accused.
That I asked him for the father but he told me that he was not aware of his whereabouts since he had
just returned from School where he takes his studies. He however suspected him to have gone to
Ngando town.
That I ordered a Boda Boda man one Rashid to take me Ngando town but upon reaching Nganda, I
didn’t find the accused.
That I ordered the Boda Boda man to take me Bulo town and it was on our way to Bulo that I met the
accused at a lady’s place of residence identified to me by the Boda Boda man, as Hajjati Nazziwa
alias Mrs. Kagga.
That we stopped and I branched off to Hajjati Nazziwa’s home from where I served the accused with
a copy of the summons.
That on service the accused told me that he was advised by his children not to appear before court.
That I asked him to sign on my original summons which he refused and instead he pleaded to me not
to mention that I ever met him any where for service of the same.
That I left him with the duplicate copy of the summons and returned with the original un signed.
That I swear this affidavit as proof of service of the summons in this matter.
That what is stated is true to the best of my knowledge.

SWORN BY THE SAID

J.J WILFRED at Kampala this …………………………………….
…………day of……………………………2007 DEPONENT

BEFORE ME

………………………………………………
COMMISSIONER FOR OATHS

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ARRESTS
Meaning of Arrest.
An arrest is the deprivation of liberty for the purpose of compelling a person to appear in court or
other authority to answer a criminal charge or to testify against another person. It usually involves
the taking of the person arrested in custody whereby he is detained or confined.
Every individual in Uganda has a constitutional protection as to personal liberty enshrined in the Bill
of rights.( Article 23) Arresting a person therefore means interfering with his personal liberty.
Therefore, a person will not be deprived of his liberty save as may be authorized by law.

Method of Arrest.
Section 2(1) of the CPC provides that in the making of an arrest the police officer making the same
shall actually touch or confine the body of the person to be arrested, unless there be a submission to
the custody by word or action.
Therefore the forms of arrest include;
a. Touching the body of the person to be arrested; this is usually by way of handcuffs,
b. Confinement- keeping the arrested person in custody, and
c. Submission- where the accused consents to be arrested and submits himself to authorities.
Use of force in effecting arrest
If such a person forcibly resists the endeavor to arrest him or attempts to evade the arrest, such police
officer or other person making the arrest may use all means necessary to effect the arrest. However,
there is an important proviso qualifying the use of force to the effect that nothing contained in this
section 2 of the CPC shall be deemed to justify the use of greater force than is reasonable in the
circumstances in which it is employed or is necessary for the apprehension of the offender. S.2(2) &
(3) of the CPC.
In other words, only reasonably necessary force is allowed to be used in order to effect an arrest.
Excessive or unwarranted force is unlawful. There is no need to touch the person being arrested if he
agrees to go with the person effecting arrest without resistance or argument.
Restraint of the arrested person
Under section 5 of the CPC, it is provided that a person arrested should not be subjected to more
restraint than is necessary to prevent his or her escape.,

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It is even unnecessary to handcuff or tie him if he behaves himself and intends to cause no trouble
there is no need to handcuff him and push him around. It is unlawful and unnecessary to assault a
person who is already in custody.
Note:
Where any person is charged with a criminal offence arising out of the arrest or attempted arrest, by
him of a person who forcibly resists such arrest or attempts to evade being arrested the court should,
in considering whether the means used were necessary or the degree of force used was reasonable for
the apprehension of such person, have regard to the gravity of the offence which has been or was
being committed by such person and the circumstances in which such offence had been or was being
committed by such person.
Before use of force is employed, the arresting person should take into account the seriousness of the
offence committed and the manner in which it was committed. If the offence is grave and violence is
involved, the arresting officer may be justified to use deadly force like a firearm to arrest the offender,
or prevent him from escaping.
In M’ibui v Dyer [1967] 1 EA 315; The defendant suspecting the appellant to be a thief alleged that
as the landrover moved off he and his men shouted for it to stop and he fired two shots into the air.
The vehicle then stopped and three men, one of whom was the plaintiff, got out and ran away. The
defendant then fired a third shot aiming upwards but in the direction of the plaintiff at a range of
some 60 yards; the two other men stopped and the plaintiff disappeared. A search party with a torch
discovered him nearby with a gunshot wound in his shoulder and another in his leg.
It was held that the defendant was negligent in firing the third shot in the direction of the plaintiff
and was not protected by any of the provisions of the criminal law as the amount of force used in the
particular circumstances was neither reasonable nor necessary;
Beard and another v Republic 1970 EA 448
The first appellant used his land for activities relating to game conservation and the second appellant
was employed by him to prevent poaching. The second appellant surprised the complainant setting a
snare on the first appellant’s land at a place where a rare antelope had been found dead. The
complainant made off, but was confronted by the appellants at his place of work, where he admitted
the offence and agreed to accompany the appellants to the place. When near the place, the
complainant retracted his confession and the appellants decided to arrest him. The complainant was
made to sit down and was tied to a tree with wire snares, but care was taken and only superficial
injuries were caused. The first appellant took photographs of the snares and the scene and took them
for urgent processing in order to hand them over to the police together with the complainant.
The appellants were convicted of assault causing actual bodily harm and wrongful confinement and
sentenced to 18 months’ imprisonment and 12 strokes of the cane. The magistrate recommended the
deportation of the first appellant.
Held – On appeal
(i) the complainant had made no attempt to escape, and he should not have been tied up;

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( ii) there had been unnecessary delay in handing the complainant over to the police after his arrest;

ARREST WITH OR WITHOUT WARRANTS

It is important to note that arrests maybe effected;
a. With a warrant or
b. Without a warrant.

ARREST WITH A WARRANT

This requires issue of a warrant which is a written document authorizing the person to whom it is
directed to apprehend the person named therein and take such a person before the court issuing the
warrant or such other court having jurisdiction in the case for purposes of having the person arrested
answer to the charge stated in the warrant.
Warrants against accused
Warrants against accused persons are usually granted after disobedience of summons that is if the
person does not appear before court at the appointed time. S, 55 MCA provides that If the accused
person, other than a corporation, does not appear at the time and place appointed in and by the
summons, and his or her personal attendance has not been dispensed with under section 52, the court
may issue a warrant to apprehend the accused person and cause him or her
to be brought before the court.
S.5 TIA provides that the High Court may issue a warrant of arrest at any time to secure the
attendance of the accused person.
The warrant is applied for by adducing evidence on oath to the court confirming that the summons
were duly served. S. 55(4) MCA provides that A warrant shall not be issued under this section for
the arrest of any person unless the court is satisfied by evidence on oath that the summons directed
to that person was duly served.

Warrants against companies.

In regard to a corporation, if the corporation disregards summons, then a warrant of arrest shall be
issued against its officers. S.55(2) MCA provides that If a corporation does not appear in the manner
provided for under this Act, the court may cause any officer of the corporation to be summoned
before it in the manner provided for under this Act for compelling the attendance of witnesses, and if
the officer fails to attend, he or she may be dealt with under subsection (1).
S.55(3)MCA defines “officer of the corporation” to mean any director, any member of the board of
management by whatever name or style designated and the secretary.

Form, content and duration of warrants.

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This is provided for under S. 56 MCA and S.6 of TIA

Form

1. Every warrant of arrest shall be under the hand of the magistrate/judge

issuing it and shall bear the seal of the court.
Therefore, a warrant should be written and signed by the issuing judicial officer.

Content
2. Every warrant shall state shortly the offence with which the person against whom it is issued
is charged, and shall name or otherwise describe that person, and it shall order the person or
persons to whom it is directed to apprehend the person against whom it is issued and bring
him or her before the court issuing the warrant or before some other court having jurisdiction
in the case, to answer to the charge mentioned in it and to be further dealt with according to
law.

Duration;
3. Every warrant of arrest shall remain in force until it is executed or until it is cancelled by the
court which issued it

Execution of warrants.

This is provided for under Sections 58-60, 62 MCA and 6-7 TIA

A warrant of arrest may be directed to one or more police officers or chiefs named in it or generally
to all police officers or chiefs and any or all of the persons to whom it is directed may execute the
warrant. S 58 MCA 7 TIA

S.58(2) further provides that any court issuing such a warrant may, if its immediate execution
is necessary and no police officer or chief is immediately available, direct it to any other person, and
that person shall execute the warrant.
In some situations, the warrant may be directed to a landowner, farmer or manager and such person
may execute the warrant. S.59 MCA

It is important to note that sometimes if the warrant is directed to police officers or chief, he or she is
permitted to endorse another police officer or chief’s name on the warrant and the latter person can
execute the warrant. S.60 MCA

Also, when a warrant is directed to more officers or persons than one, it may be executed by all or
by any one or more of them. 58(3) MCA

Under S. 62 MCA an a warrant of arrest may be executed at any place in Uganda

Procedure on execution of warrant.

The procedure is stated under S.61 MCA.

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 i. The police officer or other person executing a warrant of arrest shall notify the substance
of the warrant to the person to be arrested,

ii. If so required, the arresting person shall show the person to be arrested the warrant and

iii. Shall without unnecessary delay bring the person arrested before the court before which
he or she is required by law to produce that person.
Note that the constitution under Article 23(4) requires the accused to ne produced to court within 48
hours.

Arrests outside jurisdiction

The procedure on arrest of person outside jurisdiction is provided for under S.63 MCA

When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by which
it was issued, the person arrested shall, be taken before the magistrate within the local limits of whose
jurisdiction the arrest was made, unless the court which issued the warrant is within twenty miles of
the place of arrest, or is nearer than the magistrate within the local limits of whose jurisdiction the
arrest was made, or unless security is taken under section 57,

Therefore the section puts an exception where the arrested person can be taken to the court issuing
the warrant. This is so where the court which issued the warrant is within twenty miles of the place
of arrest, or is nearer than the magistrate within the local limits of whose
jurisdiction the arrest was made, or security is taken under section 57,

subsection 2 is to the effect that if the person has not been granted bond or bail, then the magistrate
should, direct his or her removal in custody to that court; except that if the person has been arrested
for an offence other than murder, treason or rape, and he or she is ready and
willing to give bail to the satisfaction of the magistrate, or if a direction has been endorsed under
section 57 on the warrant and the person is ready and willing to give the security required by that
direction, the magistrate shall take such bail or security, as the case may be, and shall forward the
bond to the court which issued the warrant.

If there are any irregularities or defects in the warrant, the validity of the proceedings related to the
same shall not be affected. This is provided for under S.64 MCA which stipulates that any irregularity
or defect in the substance or form of a warrant, and any variance between it and the written complaint
or information, or between either and the evidence produced on the part of the prosecution at any
inquiry or trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the
case; S. 12 TIA

ARRESTS WITHOUT WRRANTS

It must be noted that there are instances when the accused can be arrested without an arrest warrant
on a reasonable suspicion of commission of a cognizable offence.

Arrests without warrants are governed by the Criminal Procedure Code At and the Local Government
Act and can be effected by the following persons.

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Police officers;
S. 10 of the Criminal Code Act allows any police officer to arrest, without an order from a magistrate
and without a warrant, any person whom suspected upon reasonable grounds of having committed a
cognisable offence.
The same power is extended to Sections 11 and 12 CPCA.

A cognizable offence is defined under S.1 CPCA to mean any offence—

(i) which on conviction may be punished by a term of imprisonment for one year or more; or
(ii) which on conviction may be punished by a fine exceeding four thousand shillings

S. 23 of the Police Act provides that a police officer may, without a court order and without a
warrant, arrest a person if he or she has reasonable cause to suspect that the person has
committed or is about to commit an arrestable offence.

Private persons.

Also S.15 of the Criminal Procedure Code Act allows any private person to arrest without a warrant
any person who in his or her view commits a cognisable offence, or whom he or she reasonably
suspects of having committed a felony.

R Kasule v Makerere University Kampala (1975) HCB 391

The Plaintiff a practicing advocate was stopped at the eastern gate of Makerere University by askaris
of the university who found an electric wire in a boot and the driver didn’t give a satisfactory
explanation. He was assaulted and detained in the security office to speak to the askari. The plaintiff
claimed general damages for unlawful arrest, detention and assault.
Held
That the Makerere askaris are not police officers in the sense of that term as used in the CPC.
That the powers to arrest which they can exercise are those spelt out in the CPC which stipulate that
a private person may arrest any person who commits a cognizable offence in his presence or whom
he reasonably suspects of having committed a felony. Where such person is arrested however, he
must be without unnecessary delay be handed over to the police officer or be taken to the nearest
police station.
That the plaintiff was wrongly detained and he was entitled to recover damages for wrongful arrest.

In Stephen Oporocha v. Uganda 1991 HCB 9 it was Held; that a private person may arrest without
a warrant any person who in his view commits a cognizable offence or whom he reasonably suspects
of having committed a felony, PW1 arrested the accused on suspicion of theft of engine oil. The arrest
of the suspect and his subsequent detention were therefore- lawful because the arrest was effected on
a reasonable suspicion of commission of a felony of theft .

Magistrate;

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 S.19 of the Criminal Procedure Code Act empowers the Magistrate to arrest or order for the arrest
of any person who commits an offence in his or her presence within the local limits of his or her
jurisdiction, and may upon the arrest, subject to the provisions of the Code as to bail, commit the
offender to custody.

Chiefs
This is governed by S.69(3)(h) of the Local Governments Act.

Returning officers.
This is derived from S.131(b) of the Local Governments Act.
If a person is unjustifiably arrested, they can sue for false arrest and imprisonment in tort.

A look at cases on arrest without a warrant.

M’ibui v Dyer [1967] 1 EA 315

The plaintiff, a trader in “miraa”, and five others were travelling by landrover from Meru district to
Nairobi late one night in order to deliver a load of sacks of “miraa” to the Nairobi market the
following morning and while the landrover was crossing the defendant’s farm, it developed minor
engine trouble and the vehicle was stopped while running repairs were carried out. The defendant,
with two of his staff, drove to the sheep boma where he found his sheep scattered and then drove
towards the road in an attempt to track down the thieves. The defendant saw the plaintiff’s vehicle
stopped and, as he approached it, he saw two men scramble into it and the vehicle move off. The
defendant saw what he thought were a number of sheep in the landrover but which were, in fact, the
sacks of “miraa”. The defendant alleged that as the landrover moved off he and his men shouted for
it to stop and he fired two shots into the air. The vehicle then stopped and three men, one of whom
was the plaintiff, got out and ran away. The defendant then fired a third shot aiming upwards but in
the direction of the plaintiff at a range of some 60 yards; the two other men stopped and the plaintiff
disappeared. A search party with a torch discovered him nearby with a gunshot wound in his shoulder
and another in his leg.
Held –
(i) there is no distinction between the power of a police officer and of a private person to arrest
without warrant on suspicion of felony; and, so long as there are reasonable grounds for the suspicion,
a private person is entitled to arrest and in doing so to use such force as is reasonable in the
circumstances or is necessary for the apprehension of the offender;
( ii) there were reasonable grounds for suspecting that a felony had been committed;
(iii) the defendant was not negligent in firing the first two shots in the air by way of warning;
The case of Christie and Another v Leachinsky 1947)1 ALL ER 567 established principles
regarding arrest without a warrant as;
Per Viscount Simon: The authorities seem to establish the following propositions:—
1. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other
crime of a sort which does not require a warrant, he must in ordinary circumstances inform
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 the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself
or to give a reason which is not the true reason. In other words, a citizen is entitled to know
on what charge or on suspicion of what crime he is seized.
2. If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain
exceptions, is liable for false imprisonment.
3. The requirement that the person arrested should be informed of the reason why he is seized
naturally does not exist if the circumstances are such that he must know the general nature of
the alleged offence for which he is detained.
4. The requirement that he should be so informed does not mean that technical or precise
language need be used. The matter is one of substance, and turns on the elementary
proposition that in this country a person is, prima facie, entitled to his freedom and is only
required to submit to restraint on his freedom if he knows in substance the reason why it is
claimed that restraint should be imposed.
5. The person arrested cannot complain that he has not been supplied with the above
information as and when he should be, if he himself produces the situation which makes it
practically impossible to inform him, eg, by immediate counter-attack or by running away.
These propositions equally apply to a private person who arrests on suspicion
Christie and Another v Leachinsky 1947)1 ALL ER 567
On 31 August 1942, the respondent was arrested by the appellants, who were police officers, and
charged under the Liverpool Corporation Act, 1921, s 507, with unlawful possession of a bale of
cloth. Admittedly, the arrest was not authorised by the section, but the police bona fide and on
reasonable grounds believed that he had stolen the cloth. He was detained in custody until the
following day when he was brought before the magistrate and remanded in custody until 8 September.
Thereafter he was remanded on bail until 15 September. At the hearing the respondent was
discharged, it being stated that the Leicester police had decided to prosecute him for larceny, and
before leaving the court he was re-arrested. Later in the day, the Leicester police, charging him with
larceny, took him to Leicester with a view to his committal for trial, but the charge was dismissed by
the magistrates. The respondent claimed damages for false imprisonment and trespass to the person.
Although the offence of unlawful possession under the Act of 1921 was one for which in the
circumstances there was no power of arrest without warrant, the appellants pleaded that their action
was justified because they had reasonable and probable cause for suspecting, and, in fact, suspected,
that the respondent had stolen or feloniously received the bale of cloth.
Held – (i) an arrest without warrant, either by a policeman or by a private person, can be justified
only if it is an arrest on a charge which is made known to the person arrested unless the circumstances
are such that the person arrested must know the substance of the alleged offence, (eg, where the
alleged wrongdoer is caught red-handed), or where he forcibly resists arrest; the circumstances of the
present case were not covered by any such qualification; and, therefore, the initial arrest and
imprisonment were unlawful and constituted false imprisonment.

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(ii) as regards the re-arrest on 15 September the respondent knew what was the alleged felony in
respect of which he was being detained, and, so, although it took place inside the court, this arrest
was lawful.
Mwangi s/o Njoroge v R (1954) 21 EACA 377
Two police officers searched the house of the appellant and arrested him. He was taken to a police
station and handed over to the police constable for questioning. The police constable who interrogated
him had not cautioned him, had kept on questioning him and after 15 minutes told him ‘you had
better think whether you are going to tell me or not”. The appellant claimed that his confession was
not voluntary as he had been tortured.
Held;
At common law, it is a condition of lawful arrest that the party arrested should know on what charge
or suspicion of what crime he is arrested and the omission to tell a person who is arrested at or within
a reasonable time of the arrest with whatever he is charged is nota mere irregularity and there is
nothing which abrogates or supersedes this rule in any of the local enactments giving the police the
right to arrest without warrant on suspicion.
The constables words implied a threat and rendered the statement inadmissible.

SEARCHES WITH OR WITHOUT A WARRANT

Law applicable.
The Criminal Procedure Code Act cap 116
The Police Act cap 303
The Magistrate’s court Act cap 16

Definition of a search.
A search may be defined as an inspection made on a person or in a building for the purpose of
ascertaining whether anything useful in criminal investigation may be discovered on the body of the
person or in the building searched. A search may be carried out in anyplace whether it be within
premises or outside, or in a vehicle.
S. 69 MCA is to the effect that a search is carried out for the purpose of collecting evidence and
exhibits which may be used in a criminal trial.
Normally searches are carried out on the authority of search warrants issued by the court, but police
officers are empowered to search without a warrant in certain cases. Therefore searches can be carried
out with or without a warrant.

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SEARCH WITH A SEARCH WARRANT.
A search warrant is written authority given by a court ordering the search of the premises, place, or
vessel named in the warrant for the purpose of seizing anything therein which is required or material
in the investigation of an offence. In other words, a search warrant is an authority to search a place
for evidence of a crime which is suspected or believed to have happened. The two main reasons why
it may be necessary to search a place are, to make an arrest and second, to obtain evidence.
Power to issue a search warrant.
Warrants are issued by court upon the satisfaction by evidence given on oath that anything which is
necessary to the conduct of investigation into any offence is in a building, vessel, carriage, box. S.70
MCA
The purpose of the warrant is to authorise the person to whom it is directed to search such place for
such a thing and person carrying out the search is empowered to seize and carry such a thing to the
court which issued the search warrant or some other court to be use as an exhibit. S. 70 MCA

Execution of search warrants.

A search warrant may be directed to one or more police officers or chiefs named therein or generally
to all police officers and chiefs. However where the immediate execution of search warrant is
necessary and no police officer or chief is available, the issuing court may order any other person to
carry out the search. Where a search warrant is directed to more than one officer or person, it may be
executed by all or any one of them. S. 58 MCA
A Search warrant directed to a police officer may also be executed by any other police officer whose
name is endorsed upon the warrant by the officer to whom it is directed or endorsed. The position is
the same as regards chiefs. S. 60 MCA.
Every search warrant may be issued and executed on a Sunday. It must be executed between the time
of sunrise and sunset, although the court has power to authorize the police officer or other person to
whom it is addressed to execute it at any hour. S. 71 MCA.
S. 74 MCA provides that Sections 56(1) and (3), 58, 60 and 62 shall, so far as may be, apply to all
search warrants issued under section 70. Therefore, the form, content and duration of a serach warrant
is similar to that of an arrest warrant as already discussed.

Search of Closed Places.

Whenever any building or other place liable to be searched is closed, any person residing in or being
in charge of such building must, on demand of the officer or person executing the search warrant,
and on production of the warrant, allow him free entrance and exit from the building. The person in
charge of the building is also required to afford the person searching all reasonable facilities for the
search. S.72 (1) MCA
If entrance or exit is not allowed, the person executing the warrant is authorized to break in or break
out of the building. S. 72(2) MCA and Sections 3 and 4 CPCA
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Searching women
If any person is found in or near the building to be searched , and is reasonably suspected of
concealing on his body any article for which search should be made, such person may also be
searched. If the person is a woman, she must be searched by a woman with strict regard to decency.
S. 72(3) MCA and S. 8 CPCA which stipulates that Whenever it is necessary to cause a woman to be
searched, the search shall be made by another woman with strict regard to decency. Similarly S. 23(2)
of the Police Act stipulates that a female person shall only be searched by an authorised woman.

Detention of Property seized.

When anything is seized and is brought before a court, it may be detained until the conclusion of the
case or the investigation. Reasonable care must be taken for its preservation. S. 73(1) MCA.
If any appeal is made, or if any person is committed for trial, the court must order it to be further
detained for the purpose of appeal or the trial. S.73(2) MCA. If no appeal is made, or if no person is
committed for trial, the court must direct such thing to be restored to the person from whom it was
taken, unless the court sees fit, or… authorized, to dispose of it otherwise. S. 72(3) MCA.
Elias and Ors v Pasmore and Ors (1934) 2 KB 164
In order to effect the arrest of Hannington, the defenandts, police officers entered the plaintiffs
premises and seized a number of documents and later returned some of them. The rest were used as
exhibits in the trial of the plaintiff and although the trial was concluded none of the documents were
returned.
It was held that although the original seizure of the documents was unlawful, it was excused as
regards documents used on trial, it being the interest of the state that material evidence should be
preserved. That the police had a right to search H on his arrest and also to seize any documents in
his possession which would form material evidence against him or anybody else on a criminal charge.
That any property so taken might be retained by the police until conclusion of proceedings under any
such a charge. Order for return of the documents.

SEARCHES WITHOUT A SEARCH WARRANT.

This normally occurs during or after arrest and is provided for under S.69 MCA and 6 CPCA
Search of Premises of Arrested Persons.
Under S. 69 MCA when a police officer has reason to believe that material evidence can be
obtained in connection with an offence for which an arrest has been made or authorised, any police
officer may search the dwelling or place of business of the person so arrested or of the person for
whom the warrant of arrest has been issued and may take possession of anything which might
reasonably be used as evidence in any criminal proceedings

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Under S.6(1) CPCA whenever a person is arrested without a warrant, by a private person under a
warrant, and the person arrested cannot be released on bail, the police officer making the arrest or the
re arrest has power to search such a person and place in safe custody all articles other than necessary
clothing, which are found on him.
A police officer has power to search any person who has been arrested and to take possession of
anything found on such a person which might reasonably be used as evidence in any criminal
proceedings. S.6 (2) of the CPC.
A police officer or any person making the arrest has power to seize any offensive weapons found
with an accused person. S. 9 CPC
Whenever it is necessary to search a woman, the search must be carried out by another woman with
strict regard to decency. S.8 CPC and s. 23 (2) of the police Act.

Power to stop and search persons and vehicles.

Any police officer has power to stop, search or detain any vessel, boat, aircraft or vehicle where he
has reason to suspect that anything stolen or unlawfully obtained may be found. A police officer has
similar powers in respect of any person who may be reasonably suspected of having in his possession
or conveying in any manner any thing stolen or unlawfully obtained. The police officer is authorized
to seize such thing. S.7 CPCA
The searches are usually conducted because of reasonable suspicion.
Kityo Vs. Uganda 1967 EA 23.
Between May and August, 1965, a careful watch was kept by the police on the movement of the
appellant’s car as a result of information received; and that it was noted that at any area visited by the
car there was always theft of cars particularly Morris Minors; that a search of the Vehicle Registry
had revealed that the car No. USD 429 was a 1959 model ex-Kenya but registered in Uganda only in
1962; that he first met the car at about 8 p.m. that night; that from 10 p.m. he had followed the car
and watched the conduct of the driver; that he finally stopped the car at 11.30 p.m., when he found
that the car was still prowling around the area his suspicion was aroused. On stopping the car,
Mohanar Singh Sandhu said he told the appellant that he was suspicious about the way he had been
moving around and that he wanted to check the car. On searching the car, apart from a large number
of tools found in the boot, he also observed several changes in the structure and upholstering of the
car, and immediately told the appellant that he suspected his car to have been fitted with parts stolen
or unlawfully obtained. Thereupon he requested him to go to the Police Station with him; that at first
the appellant was reluctant to follow him but eventually did so when a Police Patrol car arrived.

Held
It is not necessary that at the time of the stopping and searching of the car a Police Officer must have
in his mind a precise suspicion about anything stolen or unlawfully obtained so long as there is in all
the circumstances of the case reason for such a suspicion.

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The police, acting upon reasonable suspicion, correctly exercised their powers under s. 20 of the Code
of Criminal Procedure, and the conviction under s. 299 of the Penal Code was correct. A precise
suspicion is not necessary

It should be noted that the power of stopping and searching under s.7 of the CPC is vested only in
police officers. For example, chiefs would not be acting lawfully if they assumed to exercise powers
under this section. A police officer is defined under S.1(e) of CPCA to include any member of the
police force as constituted under the constitution and the Police Act.
R Kasule v Makerere University Kampala (1975) HCB 391
The Plaintiff a practicing advocate was stopped at the eastern gate of Makerere University by askaris
of the university who found an electric wire in a boot and the driver didn’t give a satisfactory
explanation. He was assaulted and detained in the security office to speak to the askari. The plaintiff
claimed general damages for unlawful arrest, detention and assault.
Held
That the Makerere askaris are not police officers in the sense of that term as used in the CPC. That
the powers to arrest which they can exercise are those spelt out in the CPC which stipulate that a
private person may arrest any person who commits a cognizable offence in his presence or whom he
reasonably suspects of having committed a felony. Where such person is arrested however, he must
be without unnecessary delay be handed over to the police officer or be taken to the nearest police
station.
That the plaintiff was wrongly detained and he was entitled to recover damages for wrongful arrest.

Tenywa v Uganda [1967] 1 EA 102

The appellant was stopped and questioned by a detective sergeant, an employee of the Busoga District
Administration, as to his possession of a bicycle. The appellant stated that he had bought the bicycle
from an Asian in Kamuli but he could not produce an invoice covering the purchase and when taken
to the said Asian at Kamuli the Asian denied having sold the appellant the bicycle. The appellant was
taken to the Central Police Station and the police, after investigation, received a report that the number
on the bicycle frame had been forged. The appellant was duly prosecuted and convicted under s. 299
of the Penal Code and, at the trial, the report on the forged frame number was admitted as evidence.
Held –
( 1) the Busoga District Administration Police cannot exercise the powers conferred on the Central
Government Police under s. 20 (1) of the Criminal Procedure Code;
( 2) the evidence contained in the report that the frame number of the bicycle had been forged was
hearsay and inadmissible;
( 3) the appellant had given a reasonable explanation as to his possession of the bicycle.
Appeal upheld. Conviction and sentence set aside

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Christopher Lubaale v Uganda (1995) V KALR 36
Prosecution showed that after arrest, the appellant’s house was searched and some properties subject
of the theft were found there. Appellant argued that the conviction and sentence were wrong since
his house had been searched without a warrant.
It was held that where an arrest had been made authorized according to S.68 MCA, police is at liberty
to search the place of dwelling or business of the arrested person or person authorized to be arrested
if police has reason to believe that material evidence maybe obtained thereat. The appellant’s house
was searched after arrest, therefore the search did not require a warrant.

BAIL AND BOND

LAW APPLICABLE.
The Constitution of the Republic of Uganda, 1995.
The Trial on Indictments Act Cap 23
The Magistrates Court Act Cap 16
The Penal Code Act Cap 120
A person can be released either by grant of bond at a police station or bail by court.
BOND
This is the release of a person who was arrested with or without a warrant upon such a person availing
sufficient sureties for his or her attendance before court at the specified time.
Bond arising from arrest without a warrant.
This is provided for under S.17(1) of CPCA which empowers the officer in-charge (O/C) of a police
station to which a person is brought to consider the nature of the offence and if it is not an offence of
a serious nature and it is not possible to produce the suspect before court within 24 hours after being
brought into custody to release the person upon executing a bond with or without sureties for a
reasonable amount to appear before a magistrate’s court at the time and place named in the bond.
This is also provided for under S.24(2)(b) of the Police Act to the effect that a person who has been
arrested as a preventive action can be released on execution of a bond with or without surety where
provision is made for his or her appearance before a senior police officer at regular intervals if so
required.
Bond from arrest with a warrant
Under S.57 MCA a magistrate can permit release on bond of a person whose name is stated in the
warrant of arrest. In such a case, the officer to whom the warrant of arrest is directed can take security
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being the amount stated in the warrant and require the person whose arrest is going to be effected to
execute a bond with sufficient sureties for his or her attendance before the court at a specified. The
officer thereafter is expected to forward the bond to court including the security taken.
According to S.63(2) MCA a magistrate can release a person from custody in cases where the warrant
had an endorsement authorizing the release of the person arrested upon his or her giving security.
The magistrate is expected to take the security and forward this together with the bond to the court
which issued the warrant.
It is important to note that bond is free of charge and no duty is levied on the bail bond plus the bond
does not have to be sealed as provided for under S. 38 Police Act.
Definition of bail:
Originally bail meant security given to court by another person that the accused will attend his trial
on the day appointed. But these days, it includes a recognizance entered into by the accused himself
conditioning him to appear and failure of which may result of the forfeiture of the recognizance.
According to the case of Lawrence Luzinda V Uganda [1986] HCB 33, the definition of bail was
given by justice Okello and he stated that bail is an agreement between the court, and the applicant
consisting of a bond with or without a surety for reasonable amount as the circumstances of the case
permit conditioned upon the applicant appearing before such a court on a date and time as name in
the bond to start his trial.
A recognizance means security entered into before a court with a condition to perform some act
required by law and on failure to perform that act, the security is forfeited. In practice, this can be an
amount of money or property must be deposited in the bank or property such as passport or certificate
of title for land which will be deposited with the court.
Surety; a person who gives security to the court on the basis that the accused will attend his trial on
the hearing date fixed by court.
Mode of application. How do you apply for bail?
This is provided for under the Judicature (Criminal Procedure) (Applications)(Rules) S.I 13-8
Under Rule 3, the application for bail may be made orally if the accused person is produced in court
and this applies before a magistrate. In case it is before the High Court and sometimes the Magistrate
Court, the application has to be made by way of motion supported by an affidavit.
Reasons for granting bail.
According to the Ayume in his book, Criminal Procedure in Uganda at Pg 54, he said that there are
two basic principles underlying bail. The first principle is that the accused is innocent until proved
guilty or until he pleads guilty and therefore it would be unfair in certain circumstances to keep him
in prison without trial. This is also enshrined in our constitution of 1995 article 28(3) (a).
The second principle underlying bail is that the only person capable of building up his defence at the
trial may be the accused himself. If he is released on bail, it must be on the understanding that he will

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turn up for his trial. Therefore there are good reasons why the accused would want to be released on
bail. If employed he would likely loose his job or have his business damaged while in prison.
Another argument for bail is to enable the accused take care of his dependants or keep such persons
in his employment. In Godi Akbar v Uganda, the applicant argued that he was a Member of
Parliament for Arua Municipality which Constituency had continued to miss representation in
Parliament. Also in Tolit James v Rep. Of Uganda (M.A 54 Of 2008) ((M.A 54 Of 2008 The
applicant had asserted that he had a child of tender years – 4 years- whose mother had separated from
the applicant had is believed to be living in Sudan and the child was staying with the maid alone at
home and needed the applicant’s presence

In COL (RTD) DR. KIZZA BESIGYE v UGANDA CRIMINAL APPLICATION NO. 83 OF 2016
the concept of bail was well elucidated by Justice Masalu Musene as follows.

Originally bail meant security given to court by another person that the accused will attend
trial on the day appointed. But now it includes recognizance entered into by the accused
himself, conditioning him to appear, and failure of which may lead to warrant of arrest and
confinement in prison till the trial of the case is heard and finalized. It may also lead to
forfeiture of the recognizance by the accused/ applicant and the sureties whereby they are
ordered to deposit the money they were bound to court and state offers.
As a long recognized principle under the criminal law, it is a presumption of law that an
accused person is presumed innocent until proved guilty by a competent court and or until
such accused pleads guilty to the charge voluntarily. This presumption is enshrined in Article
28 (3) (a) of the Constitution. In the same constitution, it is provided under Article 23 (1) (b)
and (c) that no person shall be deprived of his personal liberty except (b) in execution of the
order of court made to secure the fulfillment of any obligation imposed on that person by law,
and (c) for the purpose of bringing that person before court in execution of the order of court
or upon reasonable suspicion that the person has committed or is about to commit a criminal
offence under the laws of Uganda.
Bail is granted to an accused person to ensure that he appears to stand trial without the
necessity of his being detained in custody in the meantime. The effect of bail is merely to
release the accused from physical custody but he is still under the jurisdiction of the law and
is bound to appear at the appointed time and place.
That in granting bail court must equally bear in mind the interests of justice and the liberty
the person and neither ought to be sacrificed at the expense of the other.”

He quoted Hon Justice Ogoola PJ (as he then was) in Besigye v Uganda Criminal Misc. Application
No. 228 of 2005 and Criminal Misc. Application No. 229 of 2005 who emphasized that the right to
liberty is crucial in a free and democratic society. He had this to say:

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 “Liberty is the very essence of freedom and democracy. In our constitutional matrix here in
Uganda, liberty looms large. The liberty of one is the liberty of all. The liberty of one must
never be curtailed lightly, wantonly or even worse arbitrarily. Article 23, clause 6 of the
Constitution grants a person who is deprived of his or her liberty the right to apply to a
competent court of law for grant of bail. The courts from which such a person seeks refuge or
solace should be extremely wary of sending such a person away empty handed –except of
course for a good cause. Ours are courts of justice. Ours is the duty and privilege to jealously
and courageously guard and defend the rights of all in spite of all”
Musene entirely concurred with that holding of the former principal judge and only added that the
safeguarding of those rights will be within the laws of the land.
Constitutional provisions on bail:
The Constitution of the Republic of Uganda, 1995 contains provisions on the protection and
promotion of fundamental human rights and freedoms.
Article 20 (1) provides that fundamental rights and freedoms are inherent and not granted by the state.
Article 20 (2) provides that all those rights and freedoms must be respected, upheld and promoted by
all organs and agencies of Government and by all persons.
Article 28 (3) (a)thereof provides that every person who is charged with a criminal offence shall be
presumed to be innocent until proven guilty or until that person has pleaded guilty. This is the basis
on which the accused person enters into an agreement with the court on his recognisance that he
appear and attend his trial whenever summoned to do so. Bail gives the accused person adequate time
to prepare his or her defence. ( Article 28 (3) (c)
Hence Article 23 (6)(a) provides that where a person is arrested in respect of a criminal offence the
person is entitled to apply to the court to be released on bail, and the Court may grant that person bail
on such conditions as the Court considers reasonable.
Article 23(6)(b) was discussed in the case of Uganda v Besigye Constitutional Reference No 20 of
2005
Under article 23(6)(b) where the accused has been in custody for 60 days before trial for
an offence triable by the High Court as well as a subordinate court, that person shall be
released on bail on such conditions as the court considers reasonable. Here the court has
no discretion. It has to grant bail because of the use of the phrase ‘shall be released on
bail’, appearing therein. This is the opposite of the phrase ‘may be released on bail’ as
appears in 23(6)(a) (supra). The word ‘shall’ is imperative or mandatory. It denotes
obligation.

As regards article 23(6)(c), where the accused has been in custody for 180 days on an
offence triable by the High Court only and has not been committed to the High Court for
trial, that person shall be released on bail on reasonable conditions. Like in 23(6)(b) the
court has no discretion to refuse to grant bail to such a person”.

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Court thus held that;
The court has no discretion to grant or not to grant bail after the accused has shown
that he or she has been on remand in custody for 60 days before trial or 180 days before
committal to the high court.
In Florence Byabazaire’s application for bail, Justice Akiiki Kiiza was of the view that the accused
can only benefit from article 23(6)(c) , if he is not yet committed to the High Court for trial. As such
where the accused has been charged with an offence triable only by the High Court but has not spent
a statutory period of 180 days before committal, the courts may refuse to grant bail where the accused
fails to show to the satisfaction of court exceptional circumstances under S.15(3) of TIA. These
circumstances are regulatory. Justice Kiiza emphasized that on eof the execptional circumstances in
S.15(3) TIA must be satisfied if the applicant is to be allowed.

Is Bail a constitutional right and therefore automatic?

Generally the grant of bail is discretionary. Court must always exercise its discretion judiciously and
always give the accused the benefit of doubt. Magistrates and Judges have interpreted the provisions
regarding the conditions and considerations in different ways with some stating that they must be
fulfilled before a person can be granted bail, while others holding that it is a constitutional right.
The right to bail is a constitutional protection of the right to personal liberty clearly based on the
presumption of innocence which must thus not be denied lightly. An accused person charged with a
criminal offence must be informed of his right to bail. It is not a constitutional right to automatic bail
but a right to apply for bail.
The later view is the one that has been propagated by judges in most of the recent judgments as seen
hereunder;
Uganda v Col (Rtd) Dr.Kiiza Besigye Constitutional Reference No.20 of 2005,
Court laid out some general observations on the reasonable conditions the court should keep in mind
when deciding to grant or to refuse to grant bail. It held:
“While considering bail, the court would need to balance the constitutional rights of the
applicant, the needs of society to be protected from lawlessness and the considerations
which flow from people being remanded in prison custody which adversely affects their
welfare and that of their families and not least the effect on prison conditions if large
numbers of unconvicted people are remanded in custody. In this respect various factors
have to be born in mind such as the risk of absconding and interference with the course
of justice…While the seriousness of the offence and the possible penalty which could be
meted out are considerations to be taken into account in deciding whether or not to grant
bail, the applicants must be presumed innocent until proven guilty or until that person
has pleaded guilty. The court has to be satisfied that the applicant will appear for trial
and would not abscond. The applicant should not be denied of his/her freedom
unreasonably and bail should not be refused merely as a punishment as this would
conflict with the presumption of innocence. The court must consider and give the
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 applicant the full benefit of his/her constitutional rights and freedoms by exercising its
discretion judicially. Bail should not be refused mechanically simply because the state
wants such orders. The refusal to grant bail should not be based on mere allegations.
The grounds must be substantiated. Remanding a person in custody is a judicial act and
as such the court should summon its judicial mind to bear on the matter before
depriving the applicant of their liberty.”

Court thus held that in both article 23(6)(b) and (c) the court has discretion to determine the
conditions of bail.
“The context of Article 23 (6) (a) confers discretion upon the court whether to grant bail or not
to grant bail. Bail is not automatic”

In Florence Byabazaire vs. Uganda Justice Akiiki Kiiza reiterated that the accused person has no
automatic right to bail but rather the accused has the right to apply for bail and Article 23(6) confers
discretion on Court to decide whether to grant bailor no to grant it. Accordingly, it is clear that the
grant of bail is an exercise of judicial discretion.

POWERS OF MAGISTRATE’S COURTS TO GRANT BAIL.

The Magistrates Courts Act Cap 16, section 75 (1) states that a Magistrate Court before which a
person appears or is brought charged with any offence other than the offences specified in subsection.
(2) may, at any stage in the proceedings, release the person on bail, on taking from him or her a
recognisance consisting of a bond with or without sureties, for such an amount as is reasonable in the
circumstances of the case to appear before the Court, on such a date and at such time as is named in
the bond.
S 75(2) of the MCA provides that the offences excluded from the grant of bail under subsection (1)
are as follows;
(a) an offence triable only by the High Court
(b) an offence under the penal code relating to acts of terrorism
(c) an offence under the penal code relating to acts of cattle rustling
(d) an offence under the firearms act punishable by a sentence of imprisonment of not less
than 10 years;
(e) abuse of office c/s 87 of the Penal code
(f) rape c/s 123 of the Penal code and defilement c/s 129 & 130 of the penal code act;
(g) embezzlement;
(h) causing financial loss
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(i) corruption
(j) bribery of a member of a public body
(k) any other offence in respect of which a magistrate’s court has no jurisdiction to grant
bail.

A chief magistrate has powers under s.75(3) to direct that any person to whom bail has been refused
by the lower court within the area of his or her jurisdiction, be released on bail but the offence for
which the accused faces must not be one that falls under subsection 2.
A bond is a document and it has all the things agreed upon. In some cases the court may order the
accused to deposit a specific article eg a passport or property like a certificate of title or a sum of
money instead of executing a bond. S.78 MCA provides that when any person is required by any
court or officer to execute a bond, with or without sureties, that court or officer may (except in the
case of a bond for good behaviour) permit that person—
(a) to deposit any specific article or property; or
(b) to deposit a sum of money to such amount as the court or officer may fix, in lieu of executing
such a bond

S.79 MCA says that if, through mistake, fraud or otherwise, insufficient sureties have been accepted,
or if they afterwards become insufficient, the court may issue a warrant of arrest directing that the
person released on bail be brought before it, and may order him or her to find sufficient sureties, and
on his or her failing so to do may commit him or her to prison.

POWERS OF THE HIGH COURT TO GRANT BAIL.

The Trial on Indictment Act Cap 23 section 14 provides that the High Court may at any stage of the
proceedings release an accused person on bail; that is to say, on taking from him or her a recognizance
consisting of a bond, with or without sureties, for such an amount as is reasonable in the
circumstances of the case, to appear before the court on such a date and at such a time as is named in
the bond.
The High court has powers after releasing an accused person on bail to increase the amount of the
bail. This the court will do by issuing a warrant of arrest against the person released on bail directing
that he be brought before the court to execute a new bond for an increased amount; and the High
court will have powers to commit the person to prison if he or she fails to execute the new bond for
an increased amount. (Section 14 (2) of the TIA.
Bail money may be paid up by the accused or someone on his or her behalf. A person released on
bail may or may not be asked to put up people as his or her sureties to stand up for him or her before
the Court.

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Bail allows an accused person to be temporarily released from custody (usually on condition that the
recognizance usually in the form of a sum of money guarantees their attendance at the trial).
Bail money should not be excessively high so that the accused is unable to pay it.
In Charles Onyango Obbo & Andrew Mwenda v Uganda (1997)5 KALR 25 the High Court was
empowered to interfere with the discretion of the lower court while granting bail under s. 75 (4)(a)
MCA where it is shown that the discretion was not exercised judiciously. The imposition of a
condition that each accused should pay 2,000,000/-, was a failure by the lower court to judiciously
exercise its discretion and the cash bail was reduced to 200,000/=
i. Court held that while court should take into account the accused’s ability to pay, while
exercising its discretion to grant bail on certain conditions, the court should not impose
such tough conditions that bail looks like a punishment to the accused.
ii. The case also defined bail as an agreement between the accused and his sureties with
the court that the accused will appear and attend his trial whenever summoned to
do so and the surety gives security to the court that the accused will attend his trial
on the hearing date.
iii. That bail is meant to ensure that the accused attends his trial without being detained in
prison on remand while at the same time ensuring that investigations into his case are
completed without interference and that justice runs its course. The effect of bail is not to
set the accused free but to release him from custody.

CONSIDERATIONS FOR BAIL IN THE MAGISTRATE’S COURT.

In as much as the accused person has a constitutional right to apply for bail as enshrined in article
23(6)(a) of the 1995 constitution, the grant of bail is subject to some conditions being fulfilled by the
person seeking bail. As per Justice Akiiki Kiiza in the application for bail by Florence Byabazaire
Vs. Uganda 284 of 2006, Bail is not an automatic right. Article 23(6)(a) confers discretion upon the
court whether to grant bail or not.
The conditions / considerations for granting bail are set out in both the Trial on Indictments Act Cap
23 for bail applications made in the High Court and the Magistrate Courts Act Cap 16 for applications
made to the Magistrate’s court.

Considerations in the Magistrate’s court;

S. 77 MCA sets down some considerations that the Magistrate Court must have regard for in deciding
whether bail should be granted or refused-
a) the nature of the accusation; see Uganda Vs. Mugerwa & Anor [1975] HCB 218.

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b) the gravity of the offence charged and the severity of the punishment which conviction might
entail; (it is more likely that bail will be refused where the offence is so grave as to warrant a severe
penalty).
c) the antecedents of the applicant so far as they are known;( it would be a mockery of the judicial
process and a miscarriage of justice if bail were to be granted to a person who has a staggering record
of previous convictions to his name, which is an indication of his likelihood of committing further
crimes if released on bail).
d) whether the applicant has a fixed abode within the area of the court’s jurisdiction
e) Whether the applicant is likely to interfere with any of the witnesses for the prosecution or any
of the evidence to be tendered in support of the charge.
In Uganda Vs Wilberforce Nadiope & 5 Ors bail was refused on the ground that because of the
accused’s prominence and apparent influence in life there were high chances that he would use his
influence to interfere with witnesses.
In Ruparelia v Uganda [1992-1993] HCB 52
It was held;
Before court can grant bail it has to consider whether it is probable that if t accused is released
on bail he will appear to stand his trial and in considering the matter the court may have regard
to the nature of the offence charged, the nature of the evidence and possible punishment,
whether the applicant has a fixed place abode, the antecedents of the applicant and whether
he is likely to interfere with witnesses for the prosecution or the evidence.

Whether an offence is bailable or not, the granting of bail is not automatic. The court has to
exercise its discretion whether to grant bail or not.
It was not enough to say that if the applicant was not living in his own house, he has no fixed
place of abode. The applicant had to show that he was ordinarily resident in Uganda and had
a permanent address where he could be contacted if it became necessary.

That allegations concerning interference with witnesses should be proved. The

prosecution was required where allegations of tampering with witnesses was made to
support such allegations with facts showing reasonable cause for belief.
In Hon. Godi H. Akbar Vs Uganda the state, wishing to defeat the application for bail, contended
that the applicant would interfere with its undisclosed allegedly delicate and sensitive witnesses. In
rejecting the objection, Justice Zehurikize said that, “It was necessary to tell Court as to what makes
the witnesses so delicate to warrant the need to handle them with diligence and sensitivity….Court
cannot act on bold allegations which are devoid of any proof.”
It should be noted that Section 75(1) leaves it to the discretion of courts to determine the ability of
the accused to pay or the capability of the sureties presented
In the case of Uganda V Lawrence Luzindana, the accused appeared before a Kampala chief
Magistrate charged with being in possession of opium. He denied the charge and applied for bail
which application was rejected by the chief magistrate on the ground that the surety he had produced
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was not substantial. The accused then appeared before magistrate grade 1 and renewed his application
which was granted. It was held that an applicant whose application for bail has been rejected by a
court presided over by a chief magistrate may not renew the same before a lower court. That the
Magistrate grade 1 ought to have referred the file to the chief magistrate.

Considerations for Bail in the High Court.

S.15 (1) TIA provides that Court may refuse to grant bail where a person accused of an offence
specified in S.s (2) if he or she does not prove to the satisfaction of the Court –
a) that exceptional circumstances exist justifying his or her release on bail; and
b) that he or she will not abscond when released on bail.
In S. 15 (3) exceptional circumstances mean –
(a) grave illness certified by a medical officer of the prison or other institution or place where the
accused is detained as being incapable of adequate medical treatment while the accused is in custody.
Capt. Wilberforce Serunkuma Vs. Uganda [1995] I KALR 32
The applicant was charged with aggravated robbery and had been on remand for eight months. He
brought an application for bail basing on the exceptional circumstances of grave illness. In his
affidavit supporting the application the applicant deponed that he was an AIDS Victim and needed
constant care which he could not get while in prison. He brought documents to prove that he had been
attending AIDS clinics like TASO.
It was held that where satisfactory evidence of AIDS is adduced, a court may consider the
circumstances of the case and in the absence of a certificate from the medical board hold that AIDS
is grave illness, and to justify grant of bail, the applicant has to prove to the satisfaction of the court
that he was incapable of getting adequate treatment whilst in custody. In this case, all the applicant
had were documents from TASO indicating that he was an AIDS victim and no report was made by
any doctor who treated him at Luzira or mbuya military hospital to show that he could get adequate
treatment whilst in custody.
Court determines what amounts to grave illness. This was demonstrated in the case of Kaye V
Attorney General Constitutional Petition No.5 of 2012 where court rejected the applicant’s
argument that because he produced mere receipts of treatment and not a medical report he had not
proved grave illness. Court attached emphasis on who should write the report and the need for the
same to be authentic before it grants bail on that basis
(b) A certificate of no objection signed by the Director of Public Prosecutions, or
(c) The infancy or advanced age of the accused.
Mutyaba Semu V Uganda the accused was a 60 year old and suffered from diabetes and he brought
an application for bail on the ground that he was of advanced age. It was held that 60 years per se
was not advanced age but this coupled with the fact that the accused suffered from diabetes, a disease
that required a good diet which could not be provided by prison authorities he would be granted bail.
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In Dennis Obua Otima V Uganda HCCrim. Application No. 18 of 2005 it was emphasised by the
judge that despite being of advanced age bail is also granted by considering other issues like the
perception of justice system as being a mockery of justice and the accused’s likeliness of interfering
with the prosecution’s evidence. It follows then that even though S14 (3) of the T.I.A provides for
the ground of age, it is still subject to the judge’s discretion.
Dr. Alex Kamugisha V s Uganda High court Kampala Misc. Cause No. 94 of 2007 where court
observed that any age above 50 may be considered advanced age

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S.15 (4) provides that in considering whether or not the accused is likely to abscond, the court
may take into account the following factors-

a. Whether the accused has a fixed place of abode within the jurisdiction of the Court or is
ordinarily resident outside Uganda.
Dennis Obua Otima v Uganda H C Crim. App. No 18 of 2005.
The applicant was charged with embezzlement and causing financial loss applied for bail on the
assertion that he was of advanced age and that he is such a person entitled to be released on bail.
Justice Remmy Kasule looked at the considerations in light of the other factors which court uses
to deny bail. Firstly is whether the accused is likely to interfere with the prosecution evidence.
Where it is found to be the case, the court would exercise its discretion by refusing bail. Secondly
is to prevent a perception of the justice system as being a mockery of justice. This discretion to
refuse bail is vested by the constitution. Article 23 (6) (a).
b…Whether the accused has sound securities within the jurisdiction to undertake that the
accused shall comply with the conditions of his or her bail,
c. Whether the accused has on previous occasion when released on bail failed to comply with
the conditions of his or her bail; and
d. Whether there are other charges pending against the accused.
In Col (Rtd) Dr. Kizza Besigye V Uganda Crim App No 83 Of 2016 On the antecedents of the
applicant, it was stated that when the applicant was previously released on bail, he reported 39
times in strict observance of the terms that the court had set.

Justice Masalu Musene ruled that

The antecedents of the applicant have been considered. It would indeed be a mockery of
the judicial process and a miscarriage of justice if bail is granted to a person who has a
staggering record of previous convictions to his name. In the present application, it has
been elaborated by counsel for the applicant that there are no previous convictions and that
the applicant has religiously attended court in previous cases in honor of bail conditions
previously set. In one case, there is an annexure indicating 39 court attendances and the
prosecution did not oppose those submissions. In fact, learned counsel for the state
conceded that the antecedents of the applicant are persuasive.
Consequently he granted bail to the accused.
In Hon. Godi H. Akbar Vs Uganda the state, wishing to defeat the application for bail, contended
that the applicant would interfere with its undisclosed allegedly delicate and sensitive witnesses.
In rejecting the objection, Justice Zehurikize said that, “It was necessary to tell Court as to what
makes the witnesses so delicate to warrant the need to handle them with diligence and
sensitivity….Court cannot act on bold allegations which are devoid of any proof.”

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Justice Zehurikize quoted Uganda v Besigye supra at page 12 where the constitutional court stated
that “Bail should not be refused mechanically simply because the State wants such orders. The
refusal to grant bail should not be based on mere allegations. The grounds must be
substantial. Remanding a person in custody is a judicial mind to bear on the matter before
depriving the applicants of their liberty.
He thus stated that in the instant case, while it might be prudent for the State not to disclose
the identity of the witnesses, it would have been desirable for the deponent to disclose the
grounds or basis for the alleged fears by the witnesses. It was necessary to tell Court as to what
makes the witnesses so delicate to warrant the need to handle them with diligence and sensitivity.

That it is not enough for the prosecution to allege that the undisclosed witnesses are
delicate and that for that reason need to be handled with a lot of diligence and
sensitivity by keeping the applicant in prison. The allegations must be reasonably
substantiated so that the court can properly exercise its discretion when
balancing the rights of the applicant and the interest of society to protect it from
lawlessness. Court cannot act on bold allegations which are devoid of any proof.

The overriding consideration in an application of this nature is whether the accused person will
turn up for his trial. In the instant case the applicant is a Member of Parliament with a fixed place
of abode within the jurisdiction of the Court. He presented four substantial sureties which were
not doubted by the State. He has not previously been granted bail which he breached. He has
no other charges pending against him. There would be no reason to deny him bail merely on
speculative fears that he might harass or intimidate some witnesses. He was thus granted bail

Bail pending Appeal

Section 132(4) of the Trial on Indictment Act provides:

“Expect in cases where the appellant has been sentenced to death, a judge of the High
court or of Court of Appeal may, in his or her, or its discretion, in any case in which an
appeal to the Court of appeal is lodged under this section, granted bail, pending the
hearing and determination of the appeal”

Section 40(2) of the Criminal Procedure Code reads;

“The appellate Court may, if it sees fit, admit an appellant to bail pending the
determination of his or her appeal, but when a Magistrate’s Court refuses to release
a person on bail, that person may apply for bail to the appellant court.”

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The case of Arvind Patel Vs Uganda S.C.C. Application N0. of 2003 set out the conditions to
be considered to grant bail to the applicant as follows
In my view, considerations which should generally apply to an application for bail
pending appeal as indicated by the cases above referred to may be summarized as
follows:
(i) the character of the applicant;
(ii) whether he/she is a first offender or not;
(iii) whether the offence of which the applicant was convicted involved personal
violence;
(iv) the appeal is not frivolous and has a reasonable possibility of success;
(v) the possibility of substantial delay in the determination of the appeal.
(vi) whether the applicant has complied with bail conditions granted after the
applicant's conviction and during the pendency of the appeal (if any).
His Lordship Justice order observed:

“In my view, it is not necessary that all the conditions should be present in every case. A
combination of two or more criteria may be sufficient. Each case must be considered on
its own facts and circumstances.

The above principles have thereafter been applied in hundreds of applications handled by this
Court to mention but a few. Frank Iga Vs Uganda Misc. Application N0. 099/2009, Kifamunte
Henry Vs Uganda Application N0. 10/197, Nalukenge Mildred Vs Uganda Misc. Cr. Appl.
N0. 56/2008, Angelo Muwanga Vs Uganda Misc. Cr. Appl. N0. 41/2008.
Also in Teddy Ssezi Cheeye Vs Uganda Cr. Appl. 31/2009 the accused who had been sentenced
to 7 years imprisonment was released on bail pending appeal.
Also in Chandi Jamwa v Uganda CRIMINAL APPLICATION N0. 20 OF 2011 where the
accused had been sentenced to 12 years imprisonment for causing financial loss, the Court of
appeal granted the accused bail pending appeal following the guideline in Patel’s case.
In Christopher Lubale v Uganda , in this case court refused to grant bail pending appeal on
grounds of applicant suffering from AIDS. It was held that sickness of whatever nature cannot be
a ground for releasing a person on bail pending appeal. The burden of proof that an appeal has a
good chance of success lies on the applicant for bail.
In Teddy Sseezi Cheeye v Uganda miscellaneous criminal application no.37 of 2009
It was held; per S.G. Engwau JA
The court of appeal has jurisdiction to grant bail to any convicted person, who has lodged a
criminal appeal to court before the appeal is determined. This, however, is a discretionary
jurisdiction, which should be exercised judiciously.

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It is to be noted that once the trial of an accused person is completed and he has been convicted,
his situation with respect to his release, changes significantly. The principles governing the release
of a convict on bail pending the hearing and determination of appeal are different from those of an
accused person who is still under trial because, the latter is presumed innocent until proved guilty.
The presumption of innocence and the right to participate in the preparation of a defense to ensure
a fair trial are not present where an accused person has already been tried and convicted.

It is contended further that the applicant’s character is an important consideration in this

application. He is a first offender aged 51 years old. The offences of which has was convicted did
not involve personal violence. He is a married man with a large family to look after. In my view,
the alleged hardship to his dependants perse does not justify a grant of bail.

The Supreme Court made it clear that all those conditions stated in Arvind Patel case (supra) need
not be present in every case. A combination of two or more may be sufficient for a grant of bail.
In the instant application, the following factors favour the applicant:
(i) that he is a man of good character and counsel for the respondent never addressed court
on this issue;
(ii) that he is a first offender, not disputed;
(iii) that the offences of which he was convicted did not involve personal violence;
(iv) that his appeal is not frivolous and has reasonable possibility of success;
(v) that due to heavy schedule of work in this court, the hearing of his appeal might delay,
and
(vi) that when he was released on bail by the High Court, he complied with the bail conditions.
In view of the above, as laid down in the Supreme Court case of Arvind Patel (supra), I grant the
application. The applicant will be released on bail on the following terms

CHARGES AND INDICTMENTS

What is a charge?
A charge is a formal written accusation of an offence drawn up either by a police officer or a
magistrate and signed by a magistrate to be used in a magistrate’s court as a basis for trial or
preliminary proceedings. Where the charge is filed in the high court, it is called an indictment. A
charge sheet is for the magistrate’s court as an indictment is for the high court.
What is an indictment?
An indictment is a formal written accusation of an offence drawn up and signed by the DPP and
filed in the registry of the high court to be used as a basis for trial in that court.
The purpose of the charge is to state concisely the offence the accused is alleged to have committed
and also to bring to the accused ’s knowledge the nature of the offence brought against him or her
in order for him to prepare his defence.

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The difference between a charge and an indictment is one of form and not of substance. Both
charges and indictments must contain a statement of the offence committed and the particulars of
that offence. S.85 of MCA and s.22 T.I.A.
The legal provisions for framing charges and indictments are identical under S.88 MCA and S. 25
TIA accordingly.
Case law states that a trial without a charge is a nullity because the accused person would not know
the case he is facing. Sir Udo Udoma stated in the case of Judagi & Ors v West Nile district
Administration that the failure to frame a charge was a fundamental mistake and therefore the
trial was declared a nullity.

CONTENTS OF A CHARGE AND AN INDICTMENT.

A Charge just like an indictment consists of four parts; a) the commencement, b) the statement of
offence, c) the particulars of offence and d) the conclusion.
Section 85 of MCA and S. 22 of the T.I.A provide that every charge /indictment must contain a
statement of the specific offence or offences with which the accused person is charged together
with such particulars as may be necessary for giving reasonable information as to the nature of the
offence charged.
The rules governing the form of a charge and or indictment are set out in section 88 of the MCA
and s. 25 of the T.I.A respectively.

a) Commencement
This states the place of the courts jurisdiction, indicate that the charge is preferred by the Uganda
police, state the name of the police station, date when the charge is preferred, the police charge
register no; CPS police charge no 01/06
It will state that the charge is preferred by the police and if its an indictment, it will be preferred
by the DPP.
The rules governing the form of a charge are set out under section 88 of the MCA and these
rules are mandatory.
a) A count of a charge shall commence with a statement of the offence, called the statement
of the offence. S. 88 a) MCA (for an indictment, see s. 25 a)
b) The statement of the offence shall describe the offence shortly in ordinary language,
avoiding the use of technical terms, and without necessarily stating all the essential elements of
the offence, and if the offence is one created by enactment shall contain a reference to the section
of the enactment creating the offence.
i.e murder, contrary to section 188 & 189 of the penal code act cap 120 (S.88 b) MCA and s.25 b)
T.I.A)

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c) After the statement of offence, particulars of the offence shall be set out in ordinary
language in which the use of technical terms shall not be necessary. (the particulars inform the
accused as to the circumstances- e.g time, place, conduct, subject matter of the crime which has
thus been alleged against him) only those particulars as are necessary to give the accused
reasonable information as to the nature of the charge) S.88 C) and s.25 c)
d) Where a charge contains more than one count, the counts shall be numbered
consecutively i.e 1-20 there must be a reference of the law creating each offence. S.88 e) MCA
and s.25 e) TIA.
e) Where an enactment constituting an offence states the offence to be the doing or the omission
to do any one of any different acts in the alternative… may be stated in the alternative in the count
charging the offence S. 88 f) and s. 25 f)
f) when a person is charged with any offence under sections 268-271 of the penal code i.e
embezzlement, causing financial loss, it shall be necessary to specify the gross amount of property
in respect of which the offence is alleged to have been committed and the dates between which the
offence is alleged to have been committed without specifying particular items or exact dates. S.88
i) and s.25 i)
g) the full name and address of the accused must be contained on the charge sheet. It is desirable
that his tribe or race, occupation, place of abode should also be inserted. The magistrate should
always ensure that the name on the charge sheet is the name of the person standing before the court
waiting to be charged. (s.88 m) and s.25 m)
h) it is sufficient to describe any place, time, thing, matter, act in a charge in ordinary language.
The time of the offence need not be stated unless the time is relevant for the commission of the
offence e.g in a charge of burglary; the time must be stated because it can only be committed in
the night. S.88 o) and s.25 o)
Judagi and others v West Nile District Administration [1963] 1 EA 406

The appellants were charged in the District African Court of West Nile with an offence under s.
228 of
the Penal Code. The record stated that the charge was read and explained to them and that they,
having
understood it, pleaded not guilty thereto. The charge itself and the particulars of it were not set out
any
where in the record.
Held –
(i) it is the duty of any court, before which an accused person is tried, to record in full, at
the beginning of the proceedings and before recording of the pleas, the particulars of
the charge and the relevant section of the law, if any, under which the charge read and
explained to the accused and to which the pleads is laid. If in the course of the trial, the
charge is amended then the amended charge together with the new plea should be
recorded in the body of the proceedings at the appropriate stage at which the
amendment is made. Retrial ordered.

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General rules
i) the age of the accused is normally irrelevant and may not be stated unless known. It is
however necessary to indicate the age in the particulars of offence where need arises e.g in a charge
of defilement, the age of the victim is very important. S.129
j) the marital status is not normally necessary but should be indicated in the particulars of the
offence where need arises e.g on a charge of adultery by a man contrary to s.154 PCA, the woman
with whom a man has sexual intercourse must be a married woman, therefore this fact must be
stated.
Uganda v Bwambale and Anor (1979) HCB 252
The accused were charged with elopement. However, the particulars of the charge on the side of
the woman did not disclose that she had knowledge that the man was married. The two admitted
the charges but the man did not admit that the woman was married.
Held
Charge in count 2 did not disclose any offence as the offence could only be committed by a female
eloping with a married man. Since knowledge by the woman that the man was a married man was
an essential ingredient of the offence, count 2 was therefore defective.
Sosipeter Opale s/o Idiawo v R [1962] 1 EA 661

The appellant was convicted of arson contrary to s. 307(a) of the Penal Code, under which the act
of setting fire must be both unlawful and wilful. In the particulars of the offence there was no
allegation that the appellant’s act was either unlawful or wilful. On appeal,
Held –
(i) the charge was clearly defective but not bad and in the circumstances of the case no prejudice
or embarrassment had been caused to the appellant at his trial by the defect in the charge.
( ii) no substantial miscarriage of justice had occurred and the proviso to s. 331 (1) of the Criminal
Procedure Code was applicable.

The question of applying the proviso is to be considered, therefore, not upon the basis that the
indictment disclosed no known offence, but that it described a known offence with incomplete
particulars.”
Appeal dismissed

k) A Charge should be signed by the police officer preferring the charge before filing it in court
as a means of authenticating it. After it has been filed, the magistrate should sign it before calling
upon the accused to plead to it. If it is an indictment, it should be signed by the DPP. S.26 of TIA
In Uganda vs Byaruhanga,(1975) HCB 258 it was held that the charge sheet should be signed by
the police officer who brings it and the magistrate should not accept to proceed with the charge
until it is signed.
An indictment on the other hand must be signed by the director of public prosecutions under s. 26
and it must commence in the form stipulated under section 27 of the T.I.A.

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JOINDER OF CHARGES/INDICTMENTS
There are two aspects of joinder of charges;- charging more than one offence in one charge or
indictment (joinder of offences) and secondly joining more than one accused in the same charge(
joinder of persons).

JOINDER OF OFFENCES
The rule for joinder of offences is that where an accused person is alleged to have committed more
than one offence, he may be charged in the same proceedings with all the offences provided that
the offences are founded on the same facts or form part of a series of offences of the same or
similar character. S.86 (1) MCA and s.23 (1) TIA. This has been dealt with in R v Delip Sigh
(1971) HCB 354 and Joseph s/o Odoro v R (1954) 21 EACA 311

Thus in order to join more offences than one in the same charge or indictment, it must be
established that the offences were founded on the same facts, e.g if the accused successfully
commits robbery on a passer-by and run away with the money, in the course of the escape, he is
chased by a police man, whom the accused attacks in order to evade justice. Here there are two
offences committed, robbery and assault on a policeman. Can these two offences be said to have
been founded on the same facts?

Secondly, more offences than one can be joined in one charge or indictment if they form part of a
series of offences of the same or similar character. For example if in the course of an armed robbery
on a bank, the security guard at the bank is killed, then obviously the robbery and the killing can
be said to have been founded on the same facts and can be joined in one charge.

On the other hand, if one evening a man steals from a shop in kireka trading centre and the same
evening he burgles the house of the Barclays bank manager which is 100 yards away and shortly
thereafter he rapes a woman at mulago hospital. The question will be whether all these offences
are founded on the same facts and therefore can be joined in one charge. These offences are
definitely not founded on the same facts. The next question will then be whether these three
offences form part of a series of offences of the same or similar character. Theft and burglary may
be of the same character the common fact being the accused’s dishonest intention to acquire that
which doesn’t belong to him. However not withstanding the proximity in time and distance, the
offence of rape is different in character from the offence of theft. Rape is a sexual offence against
morality whereas theft and burglary are offences against property. Therefore it would be
inappropriate to join the charge of rape with that of theft and burglary.

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It should be noted that where more than one offence is charged in a charge, a description of each
offence so charged shall be set out in a separate paragraph of the charge called a count.
In the case of R v Dalip Singh 1943 EACA 121
The appellant and another were charged with theft of property belonging to the Kenyan and
Ugandan railways. In the second count, the appellant was charged and convicted of giving a bribe
to a police officer in order to secure his release from arrest and prosecution for the theft. There was
evidence that the bribe had been offered shortly after the arrest of the two men.
On appeal to the CA it was argued that there had been an improper joinder of charges as the stealing
and the bribery were not offences of a similar character nor were they founded on the same facts.
It was held that although the two offences were different in character, they were founded on the
same facts. The evidence adduced indicated that the bribe was offered within a very short time
after the appellant and his counterpart were arrested. The test used in determining whether these
offences were founded on the same facts was the proximity in time between the commissions of
the two offences. It was noted that proximity in time mattered a lot.
Joseph s/o Odoro v R (1954) 21 EACA 311
The appellant was charged on 3 counts (1) wounding K with intent to cause him grievous harm (2)
malicious damage to property of K and (3) obstructing a police officer in the course of his duty.
The first count contained no words to indicate that the alleged wounding with intent was in any
way connected with the third count of attempting to resist arrest.
The trial judge decided that the offences did not appear to be within the scope of S.136(1) CPC
but from the depositions it was clear that the three offences were all in a series of attempts to resist
arrest and that they need not be tried separately.
Held;
Criminal procedure code S.136(1) makes it clear that it is offences charged which must form or be
part of a series of offences for the same or similar character so that count 3 was wrongly included
in the information but no failure of justice had been occasioned.
Depositions cannot be looked at to decide what charges mean

Section 86(3) MCA provides that where before trial or at any stage of the trial, the court is of the
opinion that the accused person may be embarrassed in his or her defence by reason of being
charged with more than one offence in the same charge the court may direct that any of the offences
be tried separately.
In AliKaeli v R
The accused was charged with five offences. Two were for manslaughter, one for assaulting a
police officer, another for drink driving and the last was for driving a defective motor vehicle. All
these were arising out of a motor accident.

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It was held that no other count can be joined to a charge of murder or manslaughter and that the
basis for this rule is that a trial on a charge of that nature was so serious and complicated that the
defence should not be embarrassed by the necessity of having to deal at the same time with other
matters. The court said that although this ought to be regarded as a rule of practice amounting to a
rule of law, the failure to comply with it would not necessarily result in quashing the conviction
unless the accused was prejudiced at his trial.
The rule that no other count should be joined where an accused is charged with murder or
manslaughter should be followed and regarded as a rule of practice amounting to almost a
rule of law but the court of appeal will not necessarily set aside a conviction for breach of
the rule if no prejudice results.
If, however the additional charge is based precisely on the same facts as the more serious offence,
for example, where murder resulted from arson, the court may exercise its discretion and allow the
charges to be tried together.

Yowana Sebuzukira v Uganda [1965] 1 EA 684

The appellant was charged in one information with two offences, one of murder and the other of
arson and was convicted on both counts. The two offences charged were founded on the same
facts, as the murder charge in count one resulted from the arson charged in count two. The joinder
of charges, although objected to unsuccessfully at the trial, was not made a ground of appeal, but
the court felt it necessary to make some observations about the joinder of a count for arson with
count for murder.
Held –
(i) there should be no departure from the established rule of practice that no other count should be
joined to a count of murder or manslaughter except where the additional count is based on precisely
the same facts as the more serious charge;
( ii) all the evidence to support the charge of arson was relevant on the murder charge and the
joinder of arson charge did not involve the addition of any new matter; accordingly in the
circumstances of the case the charges of murder and arson were properly joined and had caused
no possible prejudice to the appellant

But under no circumstances can offences committed by two different individuals on different
occasions at different places be joined in the same charge merely because the complainant is the
same. Such misjoinder would no doubt, render the trial a nullity.

JOINDER OF PERSONS/OFFENDERS

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S.87 MCA and S.24 of the T.I.A provide that the following may be joined in one charge and may
be tried together;
a) Persons accused of the same offence committed in the course of the same transaction,
i.e if two or more persons jointly commit robbery at a bank, they may be joined in one charge and
tried together. Refer to Kasese riots
b) Persons accused of an offence and persons accused of abetment, or of an attempt to
commit that offence. i.e if A and his brother B get hold of a girl and throw her down. While A has
sexual intercourse with the girl, B holds the girl’s legs to assist A. Both A and B can may be joined
in one charge and may be tried together for rape. Also refer to the ongoing trial of the
Kanyamunyus
c) Persons accused of more offences than one of the same kind (that us to say, offences
punishable with the same amount of punishment under the same section of the penal code act or
any other written law) committed by them jointly within a period of twelve months. For example,
if cattle raiders attack a village at night and several people are killed, all the raiders can be jointly
charged and tried for the several murders.
d) Persons accused of different offences committed in the course of the same
transaction.
In the case of Dalip Singh v R, it was stated that the test to be applied in order to determine whether
different offences have been committed in the course of the same transaction is whether it was
inherent in the acts constituting the offences, that from the very beginning of the earliest act the
other acts were either in contemplation or necessarily arose there from, or whether from the very
nature of the transaction in view, they formed component parts of one whole transaction.
An example; (Jackie, john and peter are Muk students. They decide on one Sunday evening to go
for drinks at Bermuda… Jackie drives back and on her way, she knocks a pedestrian, who is injured
badly, john gets to the main gate and assaults the guard who refuses to open the gate for the trio
after midnight, peter breaks complex window to let Jackie in since the custodian has refused to
open..( Jackie- grievous bodily harm, john assault, peter malicious damage to property)
e) Persons accused of any offence under chapters 25 to 29 of the PCA that is offences
relating to property, stealing robbery and extortion among others.
f) Persons accused of any offence relating to counterfeit coin under chapter 35 of the
penal code act and persons accused of any other offence under the chapter relating to the same
coin, or of abetment of or of attempting to commit any offence.
In S.87 MCA it is clear that there is something called “same transaction” and persons may be tried
together by virtue of that. This was explained in Nathan v R (1965) EA 77
In Uganda vs Yokasafati Edopa & 8 others [1977] HCB 3.
It was held that a misjoinder of persons is a mere irregularity and cannot be treated as having the
effect of making the trial a nullity. A nullity cannot be rectified and it will lead to the quashing of
the conviction.

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Nathani v Republic [1965] 1 EA 777

Both the appellant, the proprietor of a travel agency, and a public officer called Mkaanga, were
jointly tried in the resident magistrate’s court on a charge containing a number of counts. The
appellant was convicted on one count for corruptly giving Shs. 1,300/- to Mkaanga and the latter
was convicted on another for corruptly receiving it; Mkaanga was convicted at the same trial of
stealing Shs. 3,000/- on a second count based on a transaction with which the appellant was not
then concerned. The appellant’s appeal to the High Court was dismissed. On further appeal the
appellant argued firstly that there had been a misjoinder of the count charging Mkaanga of stealing
Shs. 3,000/- with the corruption count against the appellant and secondly that on the primary facts
established it was not reasonably possible to draw the inferences necessary to support the count of
corruption against the appellant.
Held –
(i) the bribe was neither at the same time as nor was it given in relation to the theft: in order that
different acts should make up one transaction for the purpose of joinder of charges of it must be
inherent in them that from the very beginning of the earliest act the other acts should either be in
contemplation, or necessarily arise therefrom, or form component parts of one whole;
( ii) misjoinder was not necessarily a fatal irregularity; s. 346 of the Criminal Procedure Code
enabled the court as here to disregard a misjoinder that occasioned no failure of justice;
(iii) there was material from which the resident magistrate acting reasonably could draw the
inference that the appellant corruptly gave Shs. 1,300/- to Mkaanga and accordingly no appealable
question of law arose.

In order that different acts should make up one transaction it must be inherent in them
that from the very beginning of the earliest act the other acts should either be in
contemplation, or necessarily arise therefrom, or, from the very nature of the transaction
in view, form component parts of one whole. We consider this to be the proper test to
apply in order to determine whether different offences have been committed in the course
of the same transaction.

That a reasonable construction of the phrase “same transaction” would be “if a series of acts are
so connected together by proximity of time, community of criminal intent, continuity of action and
purpose or by the relation of cause and effect as to constitute, . . . one transaction” and subject to
the proviso that acts linked by cause and effect will not necessarily form part of the same
transaction.
We are unable to accept that in this appeal the acts constituting the offence of theft by Mkaanga
and the acts constituting the offences of corrupt transactions by the appellant and Mkaanga form
part of the same transaction in accordance with either of these tests. We are satisfied therefore that
there was a misjoinder.

It should be noted that if two or more persons are charged or indicted separately, they cannot be
tried together even though they are indicted of the murder of one and the same person. Such a trial
would be a nullity.
Yakobo Uma and another v R [1963] 1 EA 542

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The two appellants were charged jointly and tried together. The offence alleged against each
appellant was “doing an act intended to cause grievous harm” contrary to s. 209 (2) of the Penal
Code. The first appellant alone was charged on the first count and the second appellant alone was
charged on the second count. The particulars of each alleged offence showed that the incident said
to involve the first appellant had occured on a different date at a different place and with a different
weapon from that said to involve the second appellant. The complainant was the same in each
count. When first brought before a magistrate, the appellants pleaded not guilty and were remanded
in custody but on the hearing being resumed nine days later they each said “I wish to admit the
charge, it is correct”, as a result of which they were convicted on their own pleas. On appeal,
Held –
(i) the charge as laid was bad in law for misjoinder as it was not within s. 135 of the Criminal
Procedure Code and, but for s. 324 (1) of the Criminal Procedure Code, the misjoinder would have
been fatal to the prosecution and conviction of the appellants;
( ii) however, the facts as disclosed by the prosecution at the trial were at variance with the charge
as laid; accordingly the magistrate should have allowed the appellants to plead over, or should
have entered a plea of not guilty on their behalf, particularly as the appellants were not represented
by counsel; since there had been a miscarriage of justice, the appeals would be allowed.
Appeals allowed. Convictions and sentences quashed.

This is how the charge had been framed.

“Statement of Offence
Count 1. Accused 1. Doing an act intended to cause grievous harm contrary to s. 209 (2) Penal
Code.

Particulars of Offence
Yakobo Uma on the 2nd day of January 1963 at Toro Village, Jago Lamogi, Kilak County in
Acholi District,
with intent to maim, disfigure or disable or to do grievous harm to Nikola Odong, unlawfully
attempted to
strike the said Nikola Odong with a spear.

Statement of Offence
Count 2. Accused 2. Doing an act intended to cause grievous harm contrary to s. 209 (2) Penal
Code.

Particulars of Offence
Akunu Odoch on the 14th day of April 1962 at Pachuge Village, Jago Lamogi, Kilak County in
Acholi District, with intent to maim, disfigure or to do grievous harm to Nikola Odong, unlawfully
attempted to strike the said Nikola Odong with a spear, bow and arrow.”

The charge as laid jointly in this case is demonstrably bad in law on the ground of
misjoinder. The two appellants do not appear to fall within any of the categories of persons
who, under s. 135 of the Criminal Procedure Code, may be joined in one charge and tried
together. Indeed the offences alleged in both counts are several. They are separate and
distinct and occurred on different occasions. It cannot even be said that the offences, for
example, were committed in the course of the same transaction, nor has it been alleged

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 either in the charge or the statement of facts that the offences were committed by the
appellants jointly.
.

ALTERNATIVE CHARGES

An alternative charge is an additional count laid against the accused in the same charge where the
prosecution is not certain of which offence the facts of the offence will support. The matter is then
left in the hands of the court to decide which of the two counts the evidence supports. For example,
where the prosecution is not sure whether the conduct of the accused amounts to theft of property
or obtaining that property under false pretences, since the two offences are of the same character,
one can be charged as an alternative to the other. The commonest example of alternative charges
is found in cases of theft with alternative count of receiving stolen property.
It should be noted that the alternative charge must be formally charged as an alternative charge. In
the case of Harry Isiko v Uganda SCCA No 4 of 1993. It was held that the whole purpose of a
criminal trial with its charges and particulars is to avoid surprise. Failure by the prosecution to
formally charge as an alternative charge the offence of theft on the charge sheet, clearly prejudiced
the accused as he had no way of knowing what he was to defend. The proper procedure should be
to add the theft charge formally as an alternative to the charge of false pretence.
It should further be noted that a conviction on the alternative count can only be entered if the
prosecution fails to prove the main count. In the case of Wanda Alex and two others v Uganda
SCCA No 42 of 1995, it was held that a conviction on the alternative count of murder, when the
judge had already entered a conviction on the main count of robbery was an error in law.
Point of emphasis, an accused cannot be convicted on both the main count and its alternative; the
court has to make a choice on one of them if a conviction is to be entered and then no finding is
made on the other count. The accused can of course be acquitted of both if the prosecution fails to
prove any of them.

DEFECTS IN CHARGES AND INDICTMENTS

A defect in a charge or indictment may come about either because of a failure to comply with the
rules of framing charges or indictments under s.88 M.CA and w.25 T.I.A, or as a result of a
misjoinder of offences or persons. However, whatever error or defect there may be, the validity of
the proceedings cannot be questioned unless such error is material to the merits of the case and
involves a miscarriage of justice. This is provided for under S.42(2) of MCA
In the case of Uganda v Borespeyo Mpaya [1975] HCB 245, it was stated that a miscarriage of
justice occurs where by reason of a mistake, omission or irregularity in trial, the appellant has lost
chance of acquittal which was otherwise open to him.

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In the case of Uganda Vs Dickens Elatu and another, the two parties were charged under the
following charge sheet.
Statement of offence
Adultery contrary to section 150 A (1) and (2) of the penal code.
Particulars of offence
Count no 1. Dickens Elatu on the 22nd day of October 1971, at oyama village, k’do subcounty,
kaberamaido county in the Teso district, you were found committing adultery with Bibiyan Akello,
a married woman not being your wife.
Count no II. Bibian Akello on the 22nd day of October 1971, at oyama village, k’do subcounty,
kaberamaido county in the Teso district, you were found committing adultery with Dickens Elatu,
not being your husband.
What are the defects in this charge?
While accepting this as an irregularity, the learned judge held that it did not occasion a miscarriage
of justice. The accused was not in anyway misled as to the nature of the offences with which they
were charged. There was therefore no miscarriage of justice.

Sosipeter Opale s/o Idiawo v R [1962] 1 EA 661

The appellant was convicted of arson contrary to s. 307(a) of the Penal Code, under which the act
of setting fire must be both unlawful and wilful. In the particulars of the offence there was no
allegation that the appellant’s act was either unlawful or wilful. On appeal,
Held –
(i) the charge was clearly defective but not bad and in the circumstances of the case no prejudice
or embarrassment had been caused to the appellant at his trial by the defect in the charge.
( ii) no substantial miscarriage of justice had occurred and the proviso to s. 331 (1) of the Criminal
Procedure Code was applicable.
The question of applying the proviso is to be considered, therefore, not upon the basis that the
indictment disclosed no known offence, but that it described a known offence with incomplete
particulars.
Appeal dismissed

Njuguna v Republic [2003] 1 EA 206

The Appellant was tried and convicted on a charge of robbery with violence and sentenced to
death. The Appellant’s appeal was predicated on grounds that the charge was defective because of
discrepancy between the amount of money stated in the charge sheet as having been stolen and the
amount stated in the evidence of the witness.
Whether stating in a charge sheet a lesser amount than that actually stolen rendered the charge
defective or was a mere irregularity.

Held

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Stating in a charge sheet a lesser amount than the amount which was actually stolen was no more
than an irregularity in the charge sheet and it did not render the charge defective. It was an
irregularity curable under section 382 of the Criminal Procedure Code

DUPLICITY OF CHARGES

A charge which is duplex is defective and may be bad in law if the defect cannot be cured by
correction of otherwise. If two or more offences are included in one count, the charge is bad for
duplicity because only one offence can be charged in a count. Two or more offences can be charged
in one charge provided they are contained in separate counts. For instance if the accused has
assaulted two persons at the same time, the accused may be charged with the assault of the two
persons in the same charge, but the assault on each person is to be charged in a separate count
because assaulting any person is a complete and separate offence even if committed in the same
transaction. Similarly if two accused persons assault a person on two different occasions, they can
not be charged in one count or same charge sheet, but in separate charge sheets so that each person
will be tried separately.

It is therefore clear that a charge is bad for duplicity if it contains a misjoinder of counts or offences,
or a misjoinder of persons or offenders.
Laban Koti v R [1962] 1 EA 439
The appellant was charged with and convicted of wrongfully attempting to interfere with or
influence witnesses in a judicial proceeding, either before or after they had given evidence,
contrary to s. 121(1)(f) of the Penal Code. On appeal it was suggested that the charge might be bad
for duplicity, firstly because it alleged that the appellant “wrongfully attempted to interfere with
or influence” witnesses, and secondly because it alleged that such attempt occurred “either before
or after” the witness had given evidence.
Held –
(i) in deciding whether there is duplicity in a charge the test is whether a failure of justice has
occurred or the accused has been prejudiced.
( ii) interference may involve either a physical act, such as preventing a witness from appearing to
give evidence, or it may involve an act of persuasion or dissuasion; the words which the appellant
used to the witnesses were both persuasive and of an influential nature.
(iii) the allegation that the appellant attempted to interfere with or influence the witnesses did not
amount to duplicity, as his act involved both ingredients and s. 137(b)(i) of the Criminal Procedure
Code applied.
(iv) the appellant was left in no doubt, from the time when the first prosecution witness gave
evidence, that the alleged attempt was made before the witnesses gave evidence and his defence
could not, therefore, be said to have been prejudiced in any way; accordingly there was no
miscarriage or failure of justice on the ground that the charge was duplex in alleging that the
attempt was made either before or after the witnesses had given their evidence. Appeal dismissed

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UNNECESSARY CHARGES.
A) ATTEMPTS:
Where a person is charged with having committed an offence, it is not necessary to add a count
for attempt to commit the same offence since he can be convicted of attempt. (s.146 MCA, s.88
TIA)

B) ACCESSORY AFTER THE FACT

When a person is charged of an offence, he may be convicted of being an accessory after the
fact to the commission of the offence even without being so charged in accordance with s. 147
MCA, S.89 T.IA

C) MINOR AND COGNATE OFFENCE

Where a person is charged of an offence and facts are proved which reduce it to a minor cognate
offence, he may be convicted of the minor cognate offence although he wasn’t charged with it. (
s. 145 MCA, S. 87 TIA) The offence must be both minor that is of less gravity and cognate that is,
of the same kind, nature, genus, or species. For instance, a person charged with murder, may be
convicted of manslaughter, a person charged with robbery may be convicted of theft, a person
charged with assault occasioning actual bodily harm may be charged with common assault. See

Robert Ndecho and Anor v R (1951) 18 EACA 171

The appellants were tried with others on an information charging them with murder of a police
constable. The appellants were convicted of willfully obstructing the police in due execution of
their duty or of persons acting in their aid.
Held;
Minor offence must be cognate to the major offence. Where an accused is charged with an offence,
he may be convicted of a minor offence although not charged with it, if that minor offence is of a
cognate character, that is to say of the same genus or species.
When the offence is murder, a court should exercise its discretion more warily before convicting
a person charged with any alternative offence although cognate other than manslaughter. The test
to be applied when exercising such discretion is whether the accused person can reasonably be
said to have had a fair opportunity of making his defence to the alternative. “the requirement to
state the section under which the court convicts is mandatory.”
Ali Mohamed Hassani Mpanda v Republic [1963] 1 EA 294
The appellant was charged with others with obstructing police officers in the due execution of their
duty contrary to s. 243 (b) of the Penal Code. The magistrate found the appellant not guilty of the

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offence charged but convicted him of the minor offence of assault occasioning actual bodily harm,
contrary to s. 241 of the Penal Code. On appeal it was considered whether the magistrate had
power to substitute a conviction of the lesser offence and whether that offence must be cognate
with the major offence charged.
Held –
(i) s. 181 of the Criminal Procedure Code can only be applied where the minor offence is arrived
at by a process of subtraction from the major charge, and where the circumstance embodied in
the major charge necessarily and according to the definition of the offence imputed by that charge
constitute the minor offence also, and further where the major charge gave the accused notice of
all the circumstances going to constitute the minor offence of which the accused is to be convicted.

( ii) an essential constituent of the minor offence of assault occasioning actual bodily harm is not
an essential constituent of the major offence of obstructing a police officer in the due execution of
his duty and the charge as drawn did not give the appellant notice of all that constituted the offence
of which he was convicted, since it contained no allegation of assault; accordingly s. 181 of the
Criminal Procedure Code was not applicable and the conviction under s. 243 (b) of assault
occasioning actual bodily harm must be set aside.

AMMENDMENT OF CHARGES/INDICTMENTS
A magistrate is given power under s.132 to amend a charge if he is satisfied that no injustice or
prejudice will be caused to the accused. The power may be exercised under any of the following
circumstances;
a) where the evidence discloses an offence other than the offence with which the accused is
charged
b) where the charge is defective in a material particular. (A defective charge is one that is
imperfect.).
c) Where the accused desires to plead guilty to an offence other than the offence with which
the accused is charged
Then the court, if it is satisfied that no injustice will be caused to the accused thereby, may make
an order for the alteration of the charge by way of its amendment or by the substitution or addition
of a new charge as it thinks necessary to meet the circumstances of the case.
S.132 (2) Where the charge is altered, the magistrate shall thereupon call upon the accused person
to plead to the altered charge. The accused will have a right to give or call such further evidence
on his or her behalf as he or she may wish.
The amendment of the charge is made at the request of or application of the prosecutor and the
court has discretion to permit the amendment before judgment is pronounced. The court can amend
a charge at any stage of the trial, even after the close of the case for the defence provided no
injustice is caused to the accused. See S.50 and s.51 TIA for alteration of indictments)

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Amendments should be limited to periods before judgment is pronounced otherwise grave injustice
would be caused to the accused by having to reopen the case after a verdict of an acquittal.
In Maulidi Abdulla Chengo v R, a new charge which carried a more severe penalty than the
original charge was substituted at the close of the case for the defence. It was held that such
substitution at such a late stage of an entirely new charge for a more serious offence couldn’t be
said to have been made without injustice to the appellant.
Yusufu Maumba v Republic [1966] 1 EA 167 (CAD)

Whether magistrate empowered to amend charge after conviction

The appellant was charged on six counts of stealing by a servant contrary to ss. 271 and 265 of the
Penal Code, he being a person employed in the East African Railways and Harbours
Administration. The appellant pleaded guilty to five of the counts and the magistrate accordingly
convicted him on those five counts but deferred sentence until after the trial of the sixth count.
Subsequently the prosecution withdrew the sixth count and then sought to amend the charge by
substituting s. 270 for s. 271. The magistrate by virtue of s. 209 of the Criminal Procedure Code
which empowers the court to amend the charge “at any stage of the trial” allowed the amendment.
However the charge was not in fact amended in the manner required by s. 209 and there was some
irregularity in putting the amended charge to the appellant and seeing that he understood the
significance of the amendment. The magistrate then convicted the appellant of the amended charge
and sentenced him under the provisions of the Minimum Sentences Act 1963 to imprisonment
with corporal punishment. The appellant appealed to the High Court but the appeal was dismissed.
On further appeal,
Held –
(i) the magistrate had no power to quash the first conviction and the appellant could not be re-
charged with or convicted of what was substantially the same offence; the proceedings subsequent
to the first conviction were without jurisdiction and were a nullity;
( ii) s. 209 of the Criminal Procedure Code allows amendment of a charge that is defective, either
in substance or form and as there was nothing defective in the charge s. 209 was not relevant;
(iii) the magistrate had no power to amend the charge after the first conviction as he was functus
officio.
Appeal allowed in part. Second conviction quashed and sentence set aside.

The trial magistrate had convicted the appellant and he had no power to quash that
conviction, nor did he purport to do so. While that conviction remained in force, the
appellant could not be charged with or convicted of what was substantially the same
offence. Therefore the proceedings which followed the first conviction were without
jurisdiction and are a nullity. We are strengthened in our opinion by the case of R. v. Guest
(1) which shows that in England a Court which has convicted an accused person is functus
officio, except as regards the power to pass sentence

Maulidi Abdullah Chengo v Republic [1964] 1 EA 122

The appellant was charged with stealing by a servant and the prosecution evidence, which the
magistrate accepted, was ample to support a conviction. The evidence was also sufficient to
support a conviction of housebreaking and theft and the magistrate, after the close of the defence,

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purporting to act under s. 209 of the Criminal Procedure Code, amended the charge and substituted
a charge of housebreaking and theft. The magistrate in amending the charge complied with the
safeguards for an accused made by the two provisos to s. 209(1). It was common ground that the
amended charge carried a more severe penalty than the original charge. On appeal,
Held –
(i) the necessary prerequisite to the application of s. 209 of the Criminal Procedure Code at all is
that the charge should be defective and as there was nothing defective in the original charge of
stealing by a servant the magistrate erred in holding that s. 209(1) was applicable;
( ii) the provision in s. 209(1) that, when the charge is defective, the court may either amend it or
substitute or add a new charge does not detract from the necessity that the charge must first be
shown to be defective; the original charge was not defective because the evidence adduced would
also support another charge for a different offence;
(iii) that the evidence adduced would have supported a conviction for the more serious offence of
housebreaking and theft was wholly outside the ambit of s. 209(1), ibid., and the substitution at
such a late stage of the charge of house-breaking and theft could not be said to have been made
“without injustice” to the appellant, notwithstanding the magistrate’s compliance with the provisos
to that subsection.
Appeal allowed. Convictions of housebreaking and theft quashed and sentences set aside.
Conviction of stealing by a servant substituted.

Judagi and others v West Nile District Administration [1963] 1 EA 406

It was held that it is the duty of any court, before which an accused person is tried, to record in
full, at the beginning of the proceedings and before recording of the pleas, the particulars of the
charge and the relevant section of the law, if any, under which the charge read and explained to
the accused and to which the pleads is laid. If in the course of the trial, the charge is amended then
the amended charge together with the new plea should be recorded in the body of the proceedings
at the appropriate stage at which the amendment is made. Retrial ordered.

In Fred Sabahashi v Uganda (1994) V KALR 127 it was held that when court must proceed with
a lesser charge than the one in the original indictment, the accused person must be required to
plead to the altered indictment. The trial court therefore erred in not letting the accused plead to
the altered indictment. However, this did not occasion a miscarriage of justice since the accused
were offered an opportunity to defend themselves against the altered indictment of manslaughter

Look at s.132(6) MCA, the prosecution may be ordered by the court to pay costs incurred to the
accused owing to the alter

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TRIAL PROCEDURE;
Trial refers to subjecting a person to a judicial power. This process should be legitimate and this
legitimacy is given by the public which should have trust in the judiciary.
The trial process is governed by a number of principles aimed at ensuring legitimacy of the process
to achieve justice. These include a number of constitutional provisions.
The constitution establishes the judicial system with a hierarchy of courts to administer justice in
the interest of the public. Refer Article 126.
Article 23 protects civil liberties of the people at the time of arrest.
Article 28 provides for a right to a fair hearing which is non-derogable under article 44(C)
From the above articles, the following principles should be adhered to by the trial process.
i. Trial should be by a competent court with jurisdiction. Courts should have the power
to try offences and power to pass sentences.
ii. The trial should be fair; it is to be equitable and balanced
iii. A speedy trial. A trial should be conducted as fast as possible because during the course
of the trial the accused may be kept in prison as they have been refused bail.
iv. It should be conducted by an independent and impartial court; free from external
influence
v. Its should be by public hearing. However this is not absolute as some matters can be
heard in camera, eg the Tinyefuza v AG case where admissibility of a document
relating to a radio message was objected to as relating to issues of national security and
the hearing was done in camera to determine its admissibility.
vi. The accused should be present during trial. Accused cannot be tried in absentia. Article
28(5)
In Bogere Moses and Anor v Uganda CRIMINAL APPEAL NO. 1 OF J997
Three persons were changed on the indictment namely; Apollo
Olukanga as the 1st Accused (A I) and the two appellants as the 2nd and 3rd Accused (A/
and A3). When the case first came up for hearing on I0.8.95. and subsequently. It was recorded
that A1 was absent. No explanation appears to have been given to the trial court about this absence
up to the time of the judgment. In the judgment the learned trial judge was constrained to observe:
“Although the indictment speaks of 3 accused persons who included a man called Appollo Olukanga Agweke
At as having been one of the robbers it is not known what happened to this accused person.
Be that as it may, this judgment is in respect of A2 and A3 only it has nothing to do with A I. "

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The Supreme court held that this clarification by the learned trial judge would not have been
necessary if the collect procedure had been followed. That the law of this country does not
permit criminal trial of any person in his or her absence. Upon the prosecution deciding to
proceed with the trial in absence of A I. the charges against A I ought to have been dropped and
the indictment ought to have been accordingly amended. This should have been done, at the date
immediately prior to commencement of hearing evidence. The trial court could not permit to
proceed with the trial of an indictment naming an accused person who is not produced before the
court.

vii. There should be presumption of innocence. A person should be presumed innocent

unless there is an admission. Refer to the procedure for taking a confession as
established by the supreme court in Festo Asenua v Uganda.
viii. The process should use a language understood by the accused. If the accused cannot
understand the language, there should be provision for an interpreter.
ix. The accused should have legal representation. This is two fold; there is where it is
mandatory and where it is at the cost of the accused. Article 28(3) (d) (e)
x. Accused should be provided with adequate time and facilities to enable him build his
defence. This was reiterated in Soon Yeon Kong Kim And Anor V Ag Constitutional
Reference N0 6 Of 2007 that In summary, Article 28(1)(3)(a)(c)(d) and (g) of the
Constitution of Uganda in their plain, natural and practical meaning, prima
facie entitle an accused person in a Magistrate’s Court to disclosure of:-
(a) Copies of statements made to Police by the would be witnesses for the
prosecution.
(b) Copies of documentary exhibits, which the prosecution is to produce at the
trial. (c) The disclosure is subject to limitations to be established through evidence
by the prosecution.
That the right to a fair hearing contains in it the right to a pre-trial disclosure of material statements
and exhibits. That in an open and democratic society, courts cannot approve of trial by ambush.
The right to a fair hearing envisages equality between the contestants in litigation

xi. The law should be clear and precise. Article 28(12). In Salvatori Abuki v AG court in
declaring the witchcraft Act noted that the act did not define the offence of witchcraft.

xii. The rule against double jeopardy. A person should not be punished twice for the same
offence. Refer to the Supreme Court ruling where it found in ULS v AG that trying
treason suspects in the high court and General Court Martial amounted to double
jeopardy. Article 28(9) provides thus that A person who shows that he or she has been
tried by a competent court for a criminal offence and convicted or acquitted of that
offence shall not again be tried for the offence or for any other criminal offence of
which he or she could have been convicted at the trial for that offence, except upon the
order of a superior court in the course of appeal or review proceedings relating to the
conviction or acquittal

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 i. Protection of certain categories of persons from being compelled to come and testify.
This is especially important for the protection of the institution of marriage.
THE PROCEDURE OF HEARING AND DETERMINING CASES IN THE
MAGISTRATES’ COURTS

The provisions relating to the hearing and determination of cases in the magistrate’s courts are
contained in s.114 to s.160 of the MCA.
S.42 provides for the specific modes by which criminal proceedings can be instituted;
(a). by a police officer bringing a person arrested with or without a warrant before a magistrate
upon a charge;

(b) by a public prosecutor or a police officer laying a charge against a person before a magistrate
and requesting the issue of a warrant or a summons; or

(c) by any person, other than a public prosecutor or a police officer, making a complaint as
provided in subsection (3) and applying for the issue of a warrant or a summons in the manner
hereafter mentioned.

Where the prosecution is by a private person S.42(3) is important and should be read together with
Article 120(3) which provides for and establishes the office of the DPP. He can take over and
continue or discontinue. Refer to the purported private prosecution of Kale Kayihura which was
taken over by the DPP. Article 120(3)(c ) provides that one of the functions of the DPP is to take
over and continue any criminal proceedings instituted by any other person or authority

Uganda v Santina Lakot (1986) HCB 27

The accused was charged with assault and pleaded guilty. The plea was recorded in the accused’s
own words “I admit I assaulted the complainant. It was an issue of struggle for hot water.” The
chief magistrate in exercise of his supervisory powers found that the prosecution was private but
the trial magistrate had not complied with S.41(3) MCA and that although the accused is said to
have pleaded guilty and convicted, there was nowhere on record any fact constituting the offence
on which she was convicted.
Held
On revision;
The case having been initiated by a private prosecutor, that person ought to have made a complaint
as provided for under S.41(3) MCA. The complaint where it was made orally, it must be reduced
into writing by the magistrate and signed by the complainant. This was mandatory procedure with
in all private prosecutions.
If the trail magistrate is satisfied that prima facie the facts disclosed the commission of an
offence, he just then draw up or cause to be drawn up a formal charge containing the
statement of the offence alleged and its particulars.

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 In the instant case, there was no complaint made or if it was ever made orally, it was never
reduced to writing and signed by the complainant. The purported charge was drawn in
contravention of the mandatory provisions of S.41(3) MCA and was null and void.

After being arrested and brought before court, the following procedure applies.
The accused will be called upon by the magistrate to take his place in the dock. It shall then be the
responsibility of the accused to ensure that his advocate is present. Before the hearing of the
evidence commences, the magistrate must ensure that the accused has had an opportunity to seek
services of an advocate. S.158 MCA.
The substance of the charge shall then be stated to the accused person by the court and the accused
person shall be asked whether she or he admits or denies the truth of the charge. S.124 (1) MCA.
The charge shall be read out to the accused and explained to him in the language he understands.
If the accused person admits the truth of the charge, his answer will be recorded as nearly as
possible in the words used by him or her, and court shall convict him or her and pass sentence
upon him or make an order against him or her unless there shall be another reason to the contrary.
S.124(2) MCA.
If the accused person doesn’t admit the truth of the charge, the court shall record a plea of not
guilty and shall proceed to hear the case as provided in the act. (s.124(3).
If the accused person refuses to plead, the court shall order a plea of not guilty to be entered for
him or her. S.124(4)
If the accused pleads that (a) he or she has been previously convicted or acquitted as the case may
be of the same offence; or that he or she has obtained a pardon for the same offence, the court shall
try whether that plea is true in fact or not and if the court holds that the facts alleged by the accused
do not prove the plea, or if it is finds that it is false in fact, the accused shall be required to plead
to the charge.
PLEAS
A plea is an answer to a charge. It may be an admission or a denial to a charge. It may be a defence
or an objection to the charge being brought against the accused. That being the case, there are
various types of pleas that an accused can raise at the time of pleading or at his trial.

The possible pleas are;

1. A plea of guilty
2. A plea of guilty to a lesser charge
3. Ambiguous pleas
4. Refusal to plead

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5. Unfitness to plead or to be tried
6. Pleas of autre fois aquit or autre fois convict or pardon
7. A plea to the jurisdiction
8. A plea of not guilty

PLEA OF GUILTY
If an accused pleads guilty to all charges, the accused is either sentenced immediately or remanded
for reports. It is however important that the accused personally pleads guilty. It is insufficient for
the advocate to say that the accused wishes to plead guilty. Where there is more than one accused,
and one pleads guilty and the other pleads not guilty, the usual practice is to postpone the
sentencing of the accused who pleads guilty until the end of the trial of the accused who pleads
not guilty.
Responses such as ‘it is true” “I did it”, “yes”, have been found insufficient for court to convict on
such words. For the plea to stand it must be complete, unequivocal and reserved admission of all
essential ingredients of the offences of which the accused should be charged.
It was stated in Adan v R that the facts of the case must be read, put to the accused person and
must respond to them specifically. Caution should be made where the accused person tends to do
away with some ingredients of the case. If they touch the essential parts of the offence, then there
is no plea of guilty.
The case of Adan v R established principles to be followed when entering a plea of guilty.
Adan v Republic [1973] 1 EA 445
The appellant was charged in the resident magistrate’s court of Wajir with the offence of stock
theft His plea is recorded in the following words. “It is true I stole that bull. It was in the boma
with others and I stole it. I was arrested with it.” This was entered as a plea of guilty and a
conviction was recorded. The appeal of the appellant was allowed on the ground that his plea of
guilty was equivocal. The court considered the manner in which pleas of guilty should be recorded
and the steps which should be
followed.

Held
i. When a person is charged, the charge and the particulars should be read out to him,
so far as possible in his own language, but if that is not possible, then in a language
which he can speak and understand.

ii. The magistrate should then explain to the accused person all the essential
ingredients of the offence charged. If the accused then admits all those essential
elements, the magistrate should record what the accused has said, as nearly as
possible in his own words, and then formally enter a plea of guilty.

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 iii. The magistrate should next ask the prosecutor to state the facts of the alleged
offence and, when the statement is complete, should give the accused an
opportunity to dispute or explain the facts or to add any relevant facts.

iv. If the accused does not agree with the statement of facts or asserts additional facts
which, if true,
v. might raise a question as to his guilt, the magistrate should record a change of plea
to “not guilty” and proceed to hold a trial.

vi. If the accused does not deny the alleged facts in any material respect, the magistrate
should record a conviction and proceed to hear any further facts relevant to
sentence. The statement of facts and the accused’s reply must, of course, be
recorded.

vii. The statement of facts serves two purposes: it enables the magistrate to satisfy
himself that the plea of guilty was really unequivocal and that the accused has no
defence and it gives the magistrate the basic material on which to assess sentence.
It not infrequently happens that an accused, after hearing the statement of facts,
disputes some particular fact or alleges some additional fact, showing that he did
not really understand the position when he pleaded guilty: it is for this reason that
it is essential for the statement of facts to precede the conviction.

In R. v. YONASANI EGALU & OTHERS (1944) 9 E.A.C.A. 65, Wilson, J. in delivering the
judgment of the court of Appeal stated at p. 67 as follows:- “In any case in which a conviction is
likely to proceed on a plea of guilty (in other words, then an admission by the accused is to be
allowed to take the place of the otherwise necessary strict proof of the charge beyond reasonable
doubt by the prosecution ) it is most desirable not only that every constituent of the charge should
be explained to the accused but that he should be required to admit or deny every constituent and
that what he says should be recorded in a form which will satisfy an appeal court that he fully
understood the charge and pleaded guilty to every element to it unequivocally
Uganda vs Olet & Anor (1991) HCB 13

The Appellants was charged with elopement c/s 121 A(l) and (2) (now 127(1) & (2) of PCA
respectively. Both appellants first pleaded not guilty but later changed their pleas to guilty after
the prosecution had led evidence of four witnesses. On their pleas both appellants were convicted
as charged. The summary of the facts constituting the offence were not narrated and put to the
accused/appellants.

It was held that for a conviction to be properly based on a plea of guilty, the plea must
unequivocally admit all ingredient s of the offence charged. A summary of the facts constituting
the offence must be narrated and put to the accused. Only if these facts disclosed the commission
of the alleged offence and the accused admits the correctness thereof can a conviction be properly
entered.
Uganda v. Godfrey Kilama (1992-93) HCB 50

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The accused was charged with stealing cash of 100,200/= old currency. The accused denied the
charge and the trial Magistrate rightly recorded a plea of not guilty. Later however, the record
showed that he had changed his plea from that of not guilty to one of guilt. The accused was found
to have no record of any previous conviction and was sentenced to a fine of Shs. 1,000/= or 12
months' imprisonment in default held of payment of that fine. The record further showed that the
trial Magistrate after four months from the date he announced the sentence in open Court,
purported to reduce it from Shs. 1,000/= to Shs. 750/= .

HELD:

In order for a plea of guilty to be properly entered, the words used by the accused in answer to the
charge must admit all the ingredients of the offence charged. In the instant case, the words used
by the accused -in answer to the charge when he alleged to have altered his plea from not guilty to
a plea of guilty were not recorded. The plea of guilty was therefore wrongly entered. Besides, the
record showed that the facts of the case were not put to the accused to admit or deny the truth or
correctness thereof before his conviction. On these two grounds the conviction of the accused was
illegal and could not stand.

Kamundi v Republic [1973] 1 EA 540

The appellant had been convicted of robbery with violence and other offences following purported
pleas of guilty. The trial magistrate recorded pleas of guilty and entered convictions without
following the usual procedure of allowing the prosecution to state the facts and allowing the
accused to answer to these facts before entering convictions. After convicting, the magistrate
adjourned to enable the prosecution to produce the criminal records of the accused persons. On the
resumption of the trial the appellant was represented by an advocate who submitted that the pleas
of guilty were ambiguous. The magistrate held that the plea was unequivocal and that the court
had no power to quash its own conviction and refused to allow the appellant to change his plea.
On second appeal it was argued that a magistrate should be able to alter a plea of guilty at any time
before pronouncing sentence.
Whether there was in fact a plea of guilty on which the appellant was properly convicted?

Held –
(i) the proper procedure before entering a conviction had not been followed;
( ii) a magistrate has a judicial discretion to allow a change of plea before passing sentence or
making some order finally disposing of the case and in this case his discretion had not been
judicially exercised.

In the words of court;

“It is to be noted here that the trial magistrate did not follow what we understood to be the
usual practice of the prosecution stating the facts on which it based the prosecution and
then allowing the accused person the opportunity to answer to these facts before convicting
the accused on his plea of guilty. This court recently in Adan v. Republic, [1973] E.A. 445
dealt fully with the desirability of this practice being followed.

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 As we pointed out in the Adan case, the courts are concerned not to convict an accused
person on his plea unless it is certain that the accused understood the charge and intended
to plead guilty and that he has no defence to the charge. This is especially so in East Africa
where so many different languages are spoken and the charge has often to be interpreted
from English to some other language and then the plea has to be interpreted back to the
magistrate in English. A plea of guilty should only be entered when it is certain that the
accused admits committing the offence charged, and in any case of doubt a plea of not
guilty should be entered. It is a right of every person accused of a crime to plead not guilty
and to have the prosecution establish his guilt.”

Samwiri Mugabi v Uganda (1987) HCB 14

The appellant admitted stealing a balancing scale belonging to his father. With regard to the
appellant’s plea, the magistrate recorded that the appellant said “I admit the charge.” He was
convicted and sentenced to 18 moths imprisonment.
Held;
Although this could be considered to be a proper plea in simple cases like this one, it was not the
best way to record pleas. It was certainly unacceptable in complicated crimes such as false
pretences and receiving stolen property because of the numerous facts in issue which must be
specifically pleaded to and admitted by the accused. As the appellant had agreed to the prosecution
facts, there was no miscarriage of justice.
Appellant treated as first offender in absence of statement from prosecutor to the contrary.
Nakafunga v R (1955-57)8 ULR 151
The accused was convicted after pleading guilty to a charge of possessing a home-made gun
without a licence. She pleaded “it is correct. It was found in my house. I admit it” she appealed on
grounds that it was her husband’s gun and that she was not in possession of it.
Held;
The plea in itself did not amount to an admission of guilt.
Before a plea of guilty is accepted each ingredient of the offence should be put to the accused and
his admission recorded. Where the charge is put to him through an interpreter, it may be necessary
to break down the particulars and explain in simple language the meaning of terms which cannot
be translated.
In this case, there is no specific admission that the gun was not licensed. There is no indication
that she knew the meaning of possession or that it was explained to her. The plea did not amount
to an unequivocal plea of guilty. Trial was a nullity. No retrial ordered as accused had spent two
months in custody.
Uganda v Moses Muwonge and Ors (1978) HCB 23

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The three accused were convicted on their own pleas of guilty of theft. However, A3 was charged
with theft and in alternative with receiving stolen property. The magistrate’s record did not indicate
to which count A3 pleaded.
Held
The failure to refer to the alternative count in the record was an error by the magistrate but it must
therefore be taken that A3 pleaded guilty to the first count against him.

A plea of guilty cannot be based on a statement made before commencement of trial.

John Bizangande v Uganda (1976) HCB 9
The accused had been convicted of manslaughter and sentenced to 7 years imprisonment. The
magistrate based his decision on a plea made three months before trail to the arresting officer. In
his plea the accused tried to put up a defence.
Held
It is improper to base a judicial decision upon a plea taken before commencement of the trial as
this is not part of the trial evidence. Recording of a plea of not guilty in details including
exculpatory explanations from the accused is also improper and irregular because it misleads and
prejudices the court from the beginning of the trial.
The alleged admission should not have been admitted in the evidence as the accused made the
statement when he was in the custody of a police officer
Uganda v Lwanga (1984) HCB 20
The accused was charged and convicted on his own plea of guilty. When the charge was read to
the accused, the magistrate recorded “P.G entered”. That is that a plea of guilty entered against
accused. The accused’s plea in his own words was not recorded by the magistrate. The magistrate
having entered a plea of guilty then proceeded to ask the prosecutor to outline the facts. The facts
which contained the essential ingredients of the offence charged were outline and were put before
the accused who admitted that the facts as outlined were true. He was convicted and fined.
Held;
Court applied Adan v R
That when taking the accused’s plea, especially when accused is pleading guilty, the accused’s
own words in answer to the charge must be recorded and a plea of guilty should only be entered
after the accused has unequivocally pleaded guilty in his own words to the charge and to all
essential ingredients constituting the offence charged.
In the instant case although the accused’s own words in answer to the charge were not recorded
by the magistrate, when the whole process of the accused’s pleading is examined from the time
the charge was read to the time the accused was convicted, it is glaringly clear that the accused
was unequivocally admitting the substance of the charge. The irregularity in taking the plea of the

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accused is not fatal as it was cured by the admission of the facts as outlined by the prosecutor, facts
which constituted the offence charged.

Ambiguous Plea
Sometimes an accused may plead guilty but at the same time make statements which qualify the
plea. For example where a person charged with handling stolen goods by receiving them pleads
guilty to this offence but states that they did not know that the goods were stolen, the plea is
ambiguous.
If the accused continues to plead in this manner a plea of not guilty should be entered. Where the
plea is ambiguous and the court wrongly considers it to be a guilty plea, the appellate court may
quash the conviction or order that a not guilty plea be entered and the appellant tried on the
indictment.
Uganda v Santina Lakot (1986) HCB 27
The accused was charged with assault and pleaded guilty. The plea was recorded in the accused’s
own words “I admit I assaulted the complainant. It was an issue of struggle for hot water.” The
chief magistrate in exercise of his supervisory powers found that the prosecution was private but
the trail magistrate had not complied with S.41(3) MCA and that although the accused is said to
have pleaded guilty and convicted, there was nowhere on record any fact constituting the offence
on which she was convicted.
Held
On revision;
The purported plea was equivocal because the accused gave a reason which led to the assaulting
of the complainant. Trail nullity and quashed.
George Kanalusasi v Uganda (1989-90) HCB 9
The appellant killed the deceased thinking he was a thief as he found him standing outside his
house at night as the dork was barking. At that time theft was rampant in the are. He answered to
the charge by saying “I admit because I did it in self defence” in his judgement, the judge was of
the view that because the appellant had admitted killing in his plea of guilty, the prosecution must
be deemed to have proved the fact beyond reasonable doubt. In his summing up to the assessors
the judge did not direct them on the question of malice aforethought.
Held
No admission made or words used by an accused person in answer to a charge can be used to
weaken his plea of guilty.
It was incumbent on the judge to direct the assessors on the question of malice aforethought. The
judge did not properly evaluate the appellant’s evidence. He simply rejected it on the ground that
it was improbable. A judge must act only on the evidence and arguments properly before him not
speculation.

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Test of an unequivocal plea
Uganda v Fred Rutoroki (1979) HCB 253
The accused was convicted on his own plea of guilty of doing grievous harm by cutting his wife
with a panga on the head twice and on both wrists. At the time of the arraignment there was no
medical evidence produced as to the exact nature of the harm sustained by the wife.
Held
In absence of any medical report or evidence confirming that the harm caused by the accused
amounted to grievous harm, the facts as outlined did not disclose the offence of doing grievous
harm and the consequent conviction was therefore bad in law.
In view of the fact that the exact nature if the injuries inflicted were not known by the prosecution
and the court at the time of plea, it could not be said that the accused had pleaded unequivocally
to the offence charged by merely saying “I admit the charge”.
In determining whether a plea is equivocal or unequivocal, the court ought to examine
the entire process of pleading from the time of arraignment to the stage when conviction
is entered.in such a case, an accused’s equivocal plea may be cured by the admission of
the facts as narrated by the prosecutor if the facts disclose the essential ingredients of
the offence.
An appellate court could only receive additional evidence in exceptional circumstances which
were not present here. Retrial ordered.
Uganda v Bwambale and Anor (1979) HCB 252
The accused were charged with elopement. However, the particulars of the charge on the side of
the woman did not disclose that she had knowledge that the man was married. The two admitted
the charges but the man did not admit that the woman was married.
Held
Charge in count 2 did not disclose any offence as the offence could only be committed by a female
eloping with a married man. Since knowledge by the woman that the man was a married man was
an essential ingredient of the offence, count 2 was therefore defective.
The pleas of guilty were not unequivocal since A1 did not admit the married status of A2 at the
time of the commission of the offence, and A2 did not admit knowledge that A1 was a married
man when she eloped with him.
Uganda v. Joel Oluka (1991) HCB 3
The accused was charged with causing grievous harm contrary to section 212 of the Penal Code.
He was convicted on his own plea of guilty and sentenced to 2 and a half years imprisonment with
42 strokes "to be delivered at an average of 6 strokes per day". No medical evidence was adduced
to prove grievous harm. The trial magistrate relied on the plea of guilty by the accused, yet the
facts as they were defined could not fall within the meaning of grievous harm as defined by the
Penal Code. The file was forwarded to the High Court for revision.

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HELD
The trial court should hesitate to convict an accused person on his own plea of guilty to the charge
of doing grievous harm as it may not be easy for an accused person to understand or appreciate
the meaning of grievous harm, A plea of guilty ought not to have, been received and recorded as
it was difficult to say that the accused pleaded to what he understood and where there was
no medical evidence to certify that the injuries inflicted amounted to grievous harm.
Under S.204(3) MCA, a person who is convicted on his own plea of guilty is precluded from
appealing against conviction unless he is challenging the legality of the plea. S. 132(3) TIA
provides that;
No appeal shall be allowed in the case of any person who has pleaded guilty in his or her
trial by the chief magistrate or magistrate grade I or on appeal to the High Court and has
been convicted on the plea, except as to the legality of the plea or to the extent or legality
of the sentence.

In Adan v R It was held that a person who has pleaded guilty and been convicted on that plea is
precluded from appealing against conviction. And court was justified in summarily dismissing the
appeal as it thought that it was improper.

Plea of guilty to a lesser offence

The accused may plead not guilty to the offence charged and plead guilty to another offence of
which the accused is not charged. i.e an accused charged with burglary may plead to that offence
and plead guilty to theft. If the prosecution accepts a plea to the lesser offence and the judge
approves it, the accused will be acquitted of the offence charged and sentenced for the lesser
offence. If the prosecution refuses to accept a plea of guilty to the lesser offence, the trial must
proceed on the basis of the offence as charged and if the jury acquits the accused of that offence,
the accused cannot be sentenced for the lesser offence even though they intended to plead guilty
to it.

Refusal to plead
Where the accused refuses to plead or remains silent when asked how they wish to plead, a plea
of not guilty should be entered. S.124 (4)
Special pleas;
Pleas of autrefois acquit or autrefois convict
These two pleas- meaning previously acquitted and previously convicted respectively are based
on the fundamental principle of English law that a person is not to be prosecuted twice for the
same offence. Where one or the other plea is successfully raised, it bars all further proceedings for
the same offence.
Article 28(9) provides;

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 A person who shows that he or she has been tried by a competent court for a criminal
offence and convicted or acquitted of that offence shall not again be tried for the offence
or for any other criminal offence of which he or she could have been convicted at the trial
for that offence, except upon the order of a superior court in the course of appeal or review
proceedings relating to the conviction or acquittal

Similarly S.89 MCA provides;

A person who has been once tried by a court of competent jurisdiction for an offence and
convicted or acquitted of that offence shall, while that conviction or acquittal has not been
reversed or set aside, not be liable to be tried again on the same facts for the same offence.

Autrefois acquit is a fundamental principle of law that a man may not be put twice to jeopardy
for the same offence. This term commonly means that if a man has been tried and found not to be
guilty of an offence by a court of competent jurisdiction, the acquittal will be a bar to a subsequent
charge for the same offence
Autrefois convict on the other hand is to the effect that the accused cannot be convicted of an
offence which is the same as that of which he was previously charged and convicted.
This rule was stated in the case of R v Thomas (1949) ALL ER 662. On 2 May 1949, the appellant
was convicted of having, on 20 March 1949, feloniously wounded his wife with intent to murder
her. On 2 June 1949, she died as a result of her wounds and the appellant was indicted for murder.
In answer to the indictment he pleaded autrefois convict, but the judge held that the plea had not
been made out and the appellant was convicted of murder. On appeal,
Held – (i) although, to prove the murder, it was essential to prove the assault adjudicated on at the
time of the conviction of felonious wounding, that conviction could not be pleaded in bar to the
indictment for murder because the offence of murder only arose when the appellant’s wife died.
That on an indictment for murder the jury cannot find a verdict of guilty of wounding with intent
to murder, and, therefore, the appellant had not been twice in peril of conviction of the same
offence.
Quoted dictum of Hawkins J in R v Miles ; “ But it is not every summary conviction or acquittal
for a common assault which will operate as a bar to an indictment for an offence in which that
assault was an element It could hardly be contended that a previous conviction for a common
assault could be pleaded in bar to an indictment for murder, though to prove
the murder it might be essential to prove the assault adjudicated upon. For the offence of murder
consists in the felonious killing.”
The autrefois convict rule is based on the maxim Nemo debet bis puniri pro uno delicto,” that is to
say, that no one ought to be punished twice for one offence, or, as it is sometimes written, “pro
eadem causa,”

In R v Daudji (1948) 15 EACA 89, it was stated that the test is not whether the facts relied upon
are similar but whether the accused has been tried and convicted of an offence which is the same
as that with which he is charged.

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Semuyaga v Uganda [1975] 1 EA 186

The appellant was charged with offences before a magistrate, and contended that he had been
acquitted of the charges the previous day. The magistrate upheld the submission, and the State
applied to the High Court for a revision of the order which was granted on the ground that the
offences charged were not based on the same facts.

Held
The Court of Appeal confirmed the judges decision that although the appellant was being charged
for the same offences of conspiracy and theft, the offences were not based on the same facts. The
new conspiracy charge alleged a different fellow-conspirator, a different date, and a different
quantity of rice; the new theft charge alleged a different date, and double the quantity of rice. A
discharge on the grounds of autrefois acquit is not an acquittal, but merely a finding or
order that the accused person is not to be placed upon his trial.
When a plea of autrefois acquit, autrefois convict or pardon are raised, this will become a triable
issue of the court. The court will have to determine and decide on the evidence whether such plea
is true or false.
Previous conviction or acquittal, how proved.
S.93 MCA
(1) In any trial or other proceeding under this Act, a previous conviction or acquittal may
be proved, in addition to any other mode provided by any law for the time being in force—
(a) by an extract, certified under the hand of the officer having the custody of the records
of the court in which the conviction or acquittal was had, to be a copy of the sentence or
order; or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the
prison in which the punishment or any part of it was inflicted, or by production of the
warrant of commitment under which the punishment was suffered

Therefore previous conviction or acquittal can be proved by an extract certified under the hand of
the officer having custody of the records of the court
PARDON.
Under article 121 of the 1995 constitution, the president of Uganda can exercise his prerogative of
mercy by granting pardon to a person convicted of a criminal offence.
S.28(10) provides that no person shall be tried for a criminal offence if the person shows
that he or she has been pardoned in respect of that offence
A plea to the jurisdiction
The accused can plead that the court has no jurisdiction to try the charges preferred. Such a plea
must be in writing. The accused can plead not guilty in addition to pleading lack of jurisdiction or
demurrer. This is most common in civil matters.

A plea of not guilty.

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An accused may plead not guilty to some or all the counts on the indictment where he is charged
with more than one offence.
Recording of pleas.
Having checked that the charge is in order, the magistrate will read and explain out the charge to
the accused and ask the accused to state whether he understands the substance of the charges
against him. S. 124 of the MCA lays down the procedure of recording pleas in a magistrate’s court.
This procedure was also set out in the case of Adan v R.
Court held;
i. When a person is charged, the charge and the particulars should be read out to him,
so far as possible in his own language, but if that is not possible, then in a language
which he can speak and understand.

ii. The magistrate should then explain to the accused person all the essential
ingredients of the offence charged. If the accused then admits all those essential
elements, the magistrate should record what the accused has said, as nearly as
possible in his own words, and then formally enter a plea of guilty.

iii. The magistrate should next ask the prosecutor to state the facts of the alleged
offence and, when the statement is complete, should give the accused an
opportunity to dispute or explain the facts or to add any relevant facts.

iv. If the accused does not agree with the statement of facts or asserts additional facts
which, if true, might raise a question as to his guilt, the magistrate should record a
change of plea to “not guilty” and proceed to hold a trial.

v. If the accused does not deny the alleged facts in any material respect, the magistrate
should record a conviction and proceed to hear any further facts relevant to
sentence. The statement of facts and the accused’s reply must, of course, be
recorded.

That the statement of facts serves two purposes: it enables the magistrate to satisfy himself that the
plea of guilty was really unequivocal and that the accused has no defence and it gives the
magistrate the basic material on which to assess sentence. It not infrequently happens that an
accused, after hearing the statement of facts, disputes some particular fact or alleges some
additional fact, showing that he did not really understand the position when he pleaded guilty: it is
for this reason that it is essential for the statement of facts to precede the conviction

CHANGE OF PLEAS.
An accused person is free to change his plea at any time during the proceedings provided he does
so before sentence is passed upon him. An accused may with the leave of the court change a plea
of not guilty and plead guilty to all or some of the counts. The normal procedure in such cases is
for the relevant charges to be put to the accused again and for the accused to plead guilty to them.

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It should be noted that a change of plea from a plea of guilty to a plea of not guilty should be
allowed only in very clear cases e.g due to a language problem the accused may have
misunderstood the charge. It should also be noted that not every accused who wants to change
what is clearly a plea of guilty should be allowed to do so at his own convenience.
In R v Patel and another, it was held that once sentence had been passed upon a person who has
unequivocally pleaded guilty, he cannot afterwards be allowed to retract the plea.
Uganda v Matovu (1973) HCB 195
The accused was charged with using unlicensed vehicle and failing to stop when signaled to stop.
He pleaded guilty and was sentenced without a conviction being recorded by the magistrate.
Held
A plea of guilty entered by a court was not a conviction. An accused could be allowed to change
his plea for cause at any time before conviction.
A court had to indicate its finding of guilt based on a plea of guilty by convicting the accused of
the offence charged, as the court did not convict the accused, the sentences thereon were illegal.
Luusi Mibuulo v Uganda (1985) HCB 5
The appellant was convicted of arson. After pleading guilty of burning the house, the magistrate
allowed her to change to one of not guilty. The magistrate made comments to the effect that he
should not have allowed the accused to retract her plea which seemed unequivocal.
Held
When an accused pleads not guilty any prior admission of guilt or any statement he makes during
the plea, cannot be considered against him, first because it was not evidence and second, it is
inconsistent with a plea of not guilty which put all the prosecution case in issue.
A court has discretion to allow an accused change a plea of guilty to one of not guilty at any
stage in the proceedings before sentence is passed. The discretion must be exercised judicially
upon sound reason and in the interests of justice.
In the instant case, the appellant informed court that she pleaded guilty by mistake and it was on
this ground that the trial magistrate allowed her to change the plea. The magistrate exercised his
discretion judicially and therefore he was not justified to express any regrets about his decision on
this point.
A plea should not be taken unless the prosecutor is ready to outline the facts of the case. The trial
magistrate error in derogating from the appellants plea did not however occasion a substantial
miscarriage of justice and was curable by virtue of S.331 CPCA
Uganda v Okwanga Micheal (1992-93) HCB 62
The accused was convicted on his own plea on four counts of witchcraft. In his mitigation, it
became clear to court that he was not pleading guilty. Trial court declined to change plea and enter
a plea of not guilty. It forwarded the file to the high court for direction.

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Held ; Okello J
That it is trite law that until it passed sentence, a trial court was not functus office in a case. It could
properly permit a plea of guilty to be withdrawn and a plea of not guilty entered instead and
proceed to trial of the case for proof of guilt of the accused.
File returned to the Chief magistrate for relevant magistrate to proceed with the trial of the case.

Kamundi v Republic[1973] 1 EA 540

The appellant had been convicted of robbery with violence and other offences following purported
pleas of guilty. The trial magistrate recorded pleas of guilty and entered convictions without
following the usual procedure of allowing the prosecution to state the facts and allowing the
accused to answer to these facts before entering convictions. After convicting, the magistrate
adjourned to enable the prosecution to produce the criminal records of the accused persons. On the
resumption of the trial the appellant was represented by an advocate who submitted that the pleas
of guilty were ambiguous. The magistrate held that the plea was unequivocal and that the court
had no power to quash its own conviction and refused to allow the appellant to change his plea.
On second appeal it was argued that a magistrate should be able to alter a plea of guilty at any time
before pronouncing sentence.
Held –
(i) the proper procedure before entering a conviction had not been followed;
( ii) a magistrate has a judicial discretion to allow a change of plea before passing sentence or
making some order finally disposing of the case and in this case his discretion had not been
judicially exercised

FUNCTUS OFFICIO RULE

The term functus officio is a latin phrase meaning that having discharged a duty/authority to act
further is exhausted. In relation to court proceedings it means that once court has finally determined
a case, it has no powers to adjudicate upon it again. When a court has determined a case by passing
sentence, following a plea of guilty it is functus officio so that even if the accused wishes to change
his plea, the court will have no power to permit him to do so.

In Lapi and others v Uganda, a magistrate convicted the three appellants and sentenced each one
of them to 7 years imprisonment. Immediately thereafter, two of them insulted the magistrate who
thereupon enhanced their sentences, each to 7 years and a half imprisonment. On appeal, it was
held that as soon as the magistrate convicted and sentenced the appellants, he had become functus
officio and therefore had no jurisdiction to alter either the sentence or the conviction.
In Uganda v Micheal Ogwang, Okello J stated that it is trite law that until it passed sentence, a
trial court was not functus officio in a case. It could properly permit a plea of guilty in substitution
of a plea of not guilty.
Uganda v. Godfrey Kilama (1992-93) HCB 50

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The accused was charged with stealing cash of 100,200/= old currency. The accused denied the
charge and the trial Magistrate rightly recorded a plea of not guilty. Later however, the record
showed that he had changed his plea from that of not guilty to one of guilt. The accused was found
to have no record of any previous conviction and was sentenced to a fine of Shs. 1,000/= or 12
months' imprisonment in default held of payment of that fine. The record further showed that the
trial Magistrate after four months from the date he announced the sentence in open Court,
purported to reduce it from Shs. 1,000/= to Shs. 750/= .

HELD:

On functus officio
Once a Magistrate or Judge announces sentence, he ceases to have jurisdiction in the matter. He
can not increase or reduce the sentence however compelling the reason may be because he would
have already become functus Officio in the matter. In the instant case, the purported reduction of
the fine was done without jurisdiction and therefore illegal.

It was held in Kiwala v Uganda [1967] 1 EA 758 that the court once it has exercised its power
of revision is “functus officio” and has no authority to subsequently revise its own order

PROCEDURE ON PLEA OF NOT GUILTY.

The procedure in the case of plea of not guilty is provided for under S.126 MCA. (read together
with S.66 TIA)

The prosecution case should be commenced in a manner provided for under S.131(1) MCA. This
section provides for an opening statement of both the prosecutor and defence. The same section
provides for closing statements. It is rare for opening statements to be made where the accused is
not represented and in any case, it is optional. Similarly in magistrates courts, it is also rare for
opening statements to be made.
The opening statement should give court a clue of the nature of evidence, the offence, and that
the accused committed the offence. The lawyer always ends with a prayer that appropriate sentence
is handed to the accused. Opening statement is basically a sketch plan of how you plan to go with
the trial.
S.126(1) if the accused person doesn’t admit the truth of the charge, the court shall proceed to hear
the evidence for the prosecution.
The prosecution is the first to state its case why because he who alleges must prove. The
prosecution usually gives a brief outline of the prosecution case indicating whom it intends to call
as witnesses. The witnesses for the prosecution are examined in chief and must give evidence on
oath. Examination in chief is the examination of a witness by a party who calls him. The witness
is called in order to support the party’s case. The aim of an examination in chief therefore us to
obtain from the witness a complete orderly story told by the witness in his own natural way.
Cross examination.

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The accused person or his advocate may then put questions to each witness produced by the
prosecution. S.126 (2). This is called cross examination.
Under subsection 3 If the accused is not represented by an advocate, it will be the duty of the court
to ask the accused whether he wishes to put any questions to any of the prosecution witnesses and
his answer shall be recorded.
In R v Suke S/O Samwe and Ors (1947) 14 EACA 134 it was held that in joint trials all the
accused have a right to hear all the witnesses for the defence, to cross examine all such witnesses
and address the court on the evidence of all such witnesses

Cross examination is the examination of a witness by the adverse or opposite party. i.e in a criminal
case, it would be the examination of the prosecution witnesses by the defence and vice versa. The
aim of cross examination is mainly to destroy the material part of the evidence produced during
examination in chief. The other aim is to weaken the evidence where it can not be destroyed. The
other aim would be to undermine the witness by shaking his credibility and showing that he cannot
be trusted to speak the truth.
The prosecution will then re examine its witnesses after the cross examination. Re examination is
the examination of a witness subsequent to the cross examination by the party who called him. Re
examination is strictly limited to the matters referred to during cross examination and if a new
matter is by the permission of the court introduced, the adverse party may further cross examine
upon that new matter. Leading questions may not be asked during re examination. Leading
questions are those that require a yes or no answer.
Anthony Okwonga v Uganda Criminal Appeal No.20 of 2000 Supreme Court
The record of the trial court shows that PWl gave some evidence in examination-in-chief, led by
the prosecuting State Attorney, Mr. Wagona. When it appeared to the learned State Attorney that
PWl's evidence was different from what he had said to the police in a statement recorded from him
(PWl), the State Attorney decided to treat him as a hostile witness. According to the court record
he then applied to tender PW1's statement to the police
The appellant's defence counsel, Mr. Piwang, objected to tendering of PW1's police statement as
an' exhibit but left it to court’s discretion.

This case was tried 18 years after the commission of the alleged offences. However, the
prosecution failed to call the Police Officers who investigated the case or arrested the appellant on
whether this weakened the prosecution case?.
Held;
On absence of police
The effect of failure by the prosecution to call Police investigating and arresting Officers to give
relevant evidence at a trial was considered by this court in - Bogere Moses and Another -vs-
Uganda Criminal Appeal No. 1/97 (SCU) (unreported) , in which the court referred with
approval to what Sir Udo Udoma, CJ said in - Rwaneka -vs- Uganda (1967) EA, 768 at page

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771.

"Generally speaking, Criminal Prosecutions are matters of great concern to the State; and such
trial must be completely within the control of the Police and the Director of Public
Prosecutions. It is the duty of the Prosecutors to make certain that Police
Officers who had investigated and charged an accused person, do appear in court as witnesses
to testify as to the part they played and the circumstances under which they had decided to arrest
and charge an accused person. Criminal prosecutions should not be treated as if they were
contests between two private individuals."

This Court also followed its own earlier decision in - Alfred Bumbo and Others -vs- Uganda,
Criminal Appeal No. 28/94 (SCU) (unreported), in which it had said:

"While it is desirable that the evidence of a Police investigating Officer and of arrest of an
accused person by the Police, should always be given, where necessary, we think that where
other evidence is available and proves the prosecution case to the required standard, the absence
of such evidence would not, as a rule, be fatal to the conviction of the accused. All must depend
on the circumstances of each case whether Police evidence is essential, in addition, to prove the
charges."
Court agreed with the Court's view in - Rwoneka -vs- Uganda (supra); and in - Alfred Bumbo
and Others -vs- Uganda (supra).
But held that; “At the trial, the prosecution made efforts to have investigating and/or arresting
Police Officers come to give evidence but were unsuccessful. The trial was adjourned twice for
that purpose. As the Police Officers were said to be in Gulu, only about two Districts away from
the venue of the trial, may be the efforts would have been successful if more diligence was applied.
However, be that as it may, our view is that the absence of Police evidence was not fatal to the
appellant's conviction as there was other evidence to support the conviction.”

No case to answer;
After all the prosecution witnesses have testified and have been subjected to all the examination,
the court shall assess the evidence and if it appears to the court that a case is not made out against
the accused person sufficiently to require him or her to make a defence, the court shall dismiss the
case on a finding of no case to answer and shall forthwith acquit the accused.
This is provided for under S.127 which states;
If at the close of the evidence in support of the charge it appears to the court that a case is
not made out against the accused person sufficiently to require him or her to make a
defence, the court shall dismiss the case and shall forthwith acquit him or her

Here there is a bar to subsequent proceedings because there is an acquittal. This should be
compared to S. 119 MCA where the case is dismissed because the prosecutor does not appear for

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hearing. In such case, subsequent proceedings can be brought because there is no acquittal. S.
119(2) states that the dismissal of a charge under this section shall not operate as a bar to
subsequent proceedings against the accused person on account of the same facts.

S. 127 says “if at the close of evidence”,; this is a vital element.

A submission of no case to answer will be upheld if;
i. It is shown that one or more essential ingredients have not been established.
ii. The evidence adduced by the prosecution has been so badly discredited through cross
examination or is manifestly unreliable that no reasonable tribunal could safely convict
on it.
So the case will be dismissed and the person acquitted.

Uganda v Kato Kajubi HCT-O6-CRSCO16/2OO9

The accused was indicted for the murder of 12 yr old child. Prosecution adduced evidence of a
man and his wife who claimed to have carried out the murder on behalf of the accused and giving
him certain body parts of the deceased.

held
The judge entered a no case to answer by disbelieving the evidence adduced by the prosecution.
A submission of no case to answer can be upheld either where there is no evidence to prove an
essential element in the alleged offence, or the prosecution evidence has been so discredited in
cross- examination or is so manifestly unreliable that no reasonable tribunal can safely convict
thereon.

In this case court found the evidence by the prosecution witness so manifestly unreliable that no
reasonable court can safely convict on their evidence. It considered the witnesses as accomplices
and their evidence in court contradicted their statements to police.(PW3) had been shown to have
deliberately lied to court in narrating to court the circumstances of the actual murder of Joseph
Kasirye, the deceased. It is the law that if the principal prosecution witnesses have been shown to
be most unreliable then a submission of No case to answer may succeed.

The court thus found that there were major contradictions in the evidence given by the prosecution
witnesses on matters which go to the very root of the case. It had been shown that the principal
witnesses intended to tell and actually told court deliberate lies about the actual killing of Kasirye
Joseph. In law court is entitled to reject the evidence of those witnesses. Court held that the
prosecution evidence was so manifestly unreliable that no reasonable tribunal could safely convict
the accused on it if no explanation is offered by him. A case of no to answer was entered for kato
Kajubi and he was acquitted.

The state appealed.

On appeal, CRIMINAL APPEAL NO. 39 OF 2010

The court of appeal considered the concept of a prima facie case.

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One of the most famous ones is Fred Sabahashi vs Uganda, Criminal Appeal No.23 of 1993
(SC). This decision was cited to the trial judge in this instant case. The supreme Court stated:

“In the Practice Note (1962) ALL ER 448, Lord Parker stated

‘A submission that there is no case to answer may properly be made and upheld; (a) when there
has been no evidence to prove an essential element in the alleged offence; (b) when the evidence
adduced by the prosecution has been so discredited as a result of cross examination or is so
manifestly unreliable that no reasonable tribunal could safely convict on it.”

Lord Parker continued and gave the test of a prima facie case:

‘If however, a submission is made that there is no case to answer, the decision should depend
not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage
convict or acquit but on whether the evidence is such that a reasonable tribunal might convict.
If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to
answer.’

A definition of a prima facie case was given by Sir Newhan Worley D, in Ramalal T. Bhatt v
R (1957) E.A 332 ABR 335, as follows:

‘It may not be easy to define what is meant by a prima facie case, but at least it must mean one
on which a reasonable tribunal, properly directing its mind to the law and the evidence could
convict if no explanation is offered by the defence.’”

Lord Paker concluded thus –

“It is clear from the above two authorities that the test of a prima facie case is objective
and that a prima facie case is made out if a reasonable tribunal might convict on the evidence
so far adduced. Although the court is not required at this stage to decide whether the
evidence is worth of credit or whether if believed is weighty enough to prove the case
conclusively, a mere scintilla of evidence can never be enough nor any amount of worthless
discredited evidence. But it must be emphasised that a prima facie case does not mean a case
proved beyond reasonable doubt; Wilbiro v R. (1960) E.A. 184.”

Court of Appeal held

A submission of no case can only be properly made and upheld,

(a) When there has been no evidence to prove an essential element in the alleged offence.
(b) When the evidence adduced by the prosecution has been so badly discredited as a
result of cross-examination or is manifestly unreliable that no reasonable tribunal could
safely convict on it.

Court found that the prosecution witnesses were not accomplices and that their evidence was
corroborated. This means that the evidence of PW3 and PW4 was neither discredited nor was it
worthless.

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That the prosecution did prove all the four elements of murder to the degree required to establish
a prima facie case against the respondent. The respondent should have been called upon to answer
a prima facie case.

Court ordered that there be a retrial in the High Court of Uganda before another judge.

Ramanlal Trambaklal Bhatt v R [1957] 1 EA 332

The appellant, a sub-inspector of police, was charged on two counts of official corruption.The
evidence for the prosecution showed that Juma Sued and one Isaac were used as agents
provocateurs by the police in order to test the honesty of the appellant who was a police officer at
Bukoba. The magistrate accepted the evidence of the agents that the appellant asked Juma Sued
“Have you got Shs. 1,000/-?” but disbelieved Isaac who quoted the appellant as saying “Do not
worry. I will finish the matter.” The magistrate considered that this “fragment of evidence,”
namely, “Have you got Shs. 1,000/-,” was not sufficient to justify his calling on the defence on the
count of soliciting, and though the evidence on the second count was strong he thought it did not
constitute proof of the charge as laid. He therefore discharged the appellant on both counts. The
Attorney-General then appealed to the High Court by way of case stated and obtained an order
remitting the case to the same magistrate with a direction to put the appellant on his defence in
respect of both counts and to hear and determine the case according to law. At the resumed trial
the appellant was convicted on both the counts and sentenced to twelve months imprisonment on
each count, the sentences to run concurrently.
On appeal from dismissal of high court;

Held –
That it may not be easy to define what is meant by a “prima facie case,” but at least it must
mean one on which a reasonable tribunal, properly directing its mind to the law and the
evidence could convict if no explanation is offered by the defence
(i) the onus is on the prosecution to prove its case beyond reasonable doubt and a prima
facie case is not made out if, at the close of the prosecution, the case is merely one “which
on full consideration might possibly be thought sufficient to sustain a conviction.”
(ii) the question whether there is a case to answer cannot depend only on whether there is
“some evidence irrespective of its credibility or weight, sufficient to put the accused on his
defence. A mere scintilla of evidence can never be enough; nor can any amount of
worthless discredited evidence.”

Uganda v Swahib SSebaale (1976) HCB 36

Accused was indicted for robbery and at the close of the prosecution’s case, the complainant was
not called.
Held;
Where the prosecution closes its case without calling the complainant as in this case, the whole act
amounts to offering no further evidence and if the evidence already adduced is insufficient to
sustain the charge, there is no case for the accused to answer. In the instant case, for a prima facie

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case to be established, evidence had to be adduced that the complainant’s property was stole that
violence was used and that a deadly weapon was used on the complainant. This evidence was
lacking, so the essential ingredients of the offence of robbery had not been established.
Consequently no prima facie case had been made out. Accused found not guilty and acquitted.

Fred Sabahashi v Uganda (1994) V KALR 127

The appellant was indicted jointly with another with the murder of a suspect in prison cells. The
trial court after the close of the prosecution case ruled that the available evidence did not establish
a case of murder against the accused but only manslaughter. The court did not bother to ask counsel
for the accused to make a submission of no case to answer. However, the assessors had advised
the judge to convict the accused of common assault. On appeal
Whether courts refused counsel to enable a submission of no case to answer and this led to a
miscarriage of justice? Whether trial court erred in not giving reasons for the departure from
advice of assessors?
Held;
A submission that there is no case to answer means that no prima facie case has been made out on
the available evidence after the close of the prosecution’s case against the accused. That no
reasonable court would convict the accused on that available evidence.

A case to answer/ Defence

At the close of the evidence in support of the charge, if it appears to the court that a case is made
out against the accused person sufficiently to require him to make a defence, the court shall again
explain the substance of the charge to the accused, and shall inform him that he has the right to
i. Give evidence on oath from the witness box and that if he does give evidence on oath,
he will be liable to cross examination.
ii. Or to make a statement not on oath without being cross examined. S.128 (1)MCA.
iii. The accused also has a right to remain silent. Refer to the case of Teddy Ssezi Cheye v
Uganda. (this option is not recommended.)
128(2) MCA In any case where there is more than one accused person, the court may either hear
each accused person and his or her witnesses, if any, in turn or may, if it appears more convenient,
hear all the accused persons and then hear all their witnesses.

The court shall ask the accused whether he or she has any witnesses to examine or other evidence
to adduce in his or her defence; and the court shall then proceed to hear the accused and his or her
witnesses and other evidence S.128(1)MCA.

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S.128(3)MCA If the accused person states that he or she has witnesses to call but that they are not
present in court, and the court is satisfied that the absence of those witnesses is not due to any fault
or neglect of the accused person and that there is a likelihood that they could, if present, give
material evidence on behalf of the accused person, the court may adjourn the trial and
issue process, or take other steps, to compel the attendance of those witnesses.

Hostile witnesses.

The law contemplates that it is possible in some cases for the accused or prosecution could call
witnesses that turn out to be hostile. To tell this there is a comparison of statements made to police
and the submissions in the court. This evidence by a hostile witness is not relied on by court.

S.129 MCA provides;

Where the court declares that a witness called by a party is hostile to that party (whether
because his or her testimony in court conflicts with any statement he or she has made during
the police investigation or for any other reason), it may permit the party to conduct the
examination-in-chief by that party as if it were a cross-examination and may determine the
order of the witness’ examination by the other parties

Anthony Okwonga v Uganda Criminal Appeal No.20 of 2000 Supreme Court

The record of the trial court shows that PWl gave some evidence in examination-in-chief, led by
the prosecuting State Attorney, Mr. Wagona. When it appeared to the learned State Attorney that
PWl's evidence was different from what he had said to the police in a statement recorded from him
(PWl), the State Attorney decided to treat him as a hostile witness. According to the court record
he then applied to tender PW1's statement to the police

The appellant's defence counsel, Mr. Piwang, objected to tendering of PW1's police statement as
an' exhibit but left it to court’s discretion.

The trial judge then held that in his view a hostile witness is determined when his testimony is
contrary to his statement and that was the position in the instant case and judge thus declared
the witness hostile.

On appeal; the Supreme Court held;

It is up to a party calling a witness to apply that he or she be declared hostile. The opposite
party does not have to agree though it may oppose the application. It is for the trial court,
in its discretion to declare a witness hostile and allow the party calling him/her to cross-
examine the witness.

Court quoted the court of appeal in defining a hostile witness;

In Sankar's Law of Evidence (supra) at p.1318 the learned author writes:
"A hostile witness is one who from the manner in which he gives evidence (within which
is included the fact that he is willing to go back upon previous statement made by him)
shows that he is not desirous of telling the truth [Penchanan vs R.34 C.W.N. 526: A1930,
C.276: 51 C.L.J. 203].

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 "The matter as to whether permission should or should not be given to cross examine
one's witness however hostile he may appear to be, is eminently one in the discretion of
the trial judge and his decision except in very exceptional circumstances is not open to
appeal

PW1 was a hostile witness and his evidence was of no effect.

Evidence in reply.

S. 130MCA provides that if the accused person adduces evidence in his or defence introducing
new matters which the prosecutor could not by the exercise of reasonable diligence have foreseen,
the court may allow the prosecutor to adduce evidence in reply to contradict the new matter.

Under S.131(2) MCA after the close of the accused person’s case, the accused person is entitled
to address the court and the prosecution shall then be entitled to reply, but if the accused adduces
no evidence or no evidence other than that given by himself, the accused shall subject to S.112(3)
be entitled to the right to reply.
Here the accused is either discrediting or accepting the case. He restates his case in light of
evidence adduced by both sides. But if the accused is not represented he is likely not to be invited
to make a speech under this section.
It is an opportunity of the accused and prosecution to state their case by way of submission. The
section gives the order in which the submission shall be made. The accused first, then the then its
vice versa.
Cross reference with S. 112 which provides that in cases where the right of reply depends upon
the question whether evidence has been called for the defence, the fact that the person charged has
been called as a witness shall not of itself confer on the prosecution the right of reply; except that
the Attorney General or Solicitor General when appearing personally as advocate for the
prosecution shall, in all cases, have the right of reply.
This section should be read together with Article 274 that retains existing law to such modifications
and Article 120 which puts all criminal cases into hands of the DPP.
S.131 (3) MCA Notwithstanding subsection (2), where any issue of law is raised by a person with
a right of reply in the course of that reply, the court may, in its discretion, give to any other person
having a right of address leave to address the court on that issue of law

S.131 (4) MCA Where a right of address or reply is conferred by this section upon a prosecutor or
any accused person, that right may be exercised by an advocate representing the prosecutor or
accused person.

Decision./ conviction or acquittal

After hearing submissions of both parties, the magistrate may then give his judgment or reserve it
for another date. The court may acquit the accused having found him not guilty and order his
immediate release from custody or convict the accused and pass sentence upon him or make an

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order against him in accordance with the law. S.133 MCA. this means that the court must make a
decision.
Court must make inquiries to arrive at a proper decision.
S.133 MCA (2) provides that the court, before passing sentence, may make such inquiries as it
thinks fit in order to inform itself as to the proper sentence to be passed and may inquire into the
character and antecedents of the accused person and may take into consideration either at the
request of the prosecution or the accused person in assessing the proper sentence to be passed such
character and antecedents, including any other offences admitted by him or her
whether or not he or she has been convicted of such offences; but—
(a) the accused person shall be given an opportunity to confirm, deny or explain any statement
made about him or her, and in any case of doubt the court shall, in the absence of legal proof of
the statement, ignore the statement;
(b) no offence of which the accused person has not been convicted shall be taken into consideration
in assessing the proper sentence, unless the accused person specifically agrees that the offence
shall be taken into consideration, and a note of that request shall have been recorded in the
proceedings; and
(c) if for any reason the sentence passed by the court is set aside, the accused person shall not be
entitled to plead autrefois convict in respect of any offence taken into consideration in assessing
the sentence that was set aside.

Therefore, proper sentence should take into account the following.

a. Seriousness of the offence, prevalence, public concern and attitude of the victim; judicial
power is derived from the people and should be exercised in the name of the people Article
126.
However, if the victim forgives the accused, he cannot be discharged.
The purpose of S. 133(2) is for court to do its independent inquiry into the matter.
b. Antecedents of the accused. The other offences must be related to the one for which he is
presently convicted.
c. Co-operation of the accused with law enforcement agents. It is necessary to co-operate ,
d. The demeanour of the accused during trial is also important.
Under S. 134(2) MCA, the conviction order should be written and signed by the court or clerk or
other officer of the court. Article 28(6) entitles the accused to a copy of the proceedings upon
payment of a prescribed fee.
S. 134(2) MCA (2) The production of a copy of an order of acquittal, certified by the
clerk or other officer of the court, shall without other proof be a bar to any
subsequent proceedings for the same matter against the same accused person

Judgement

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Judgement must be explained and pronounced in open court. S.135 (1). The substance of the
judgement to be read immediately or at some subsequent time. The section allows the magistrate
to pick out the substance of the judgement unless the accused or prosecution makes a request for
the whole judgement to be read.
Under subsection 2 The accused person shall, if in custody, be brought up or, if not in custody, be
required by the court to attend to hear judgment delivered, except where his or her personal
attendance during the trial has been dispensed with and the sentence is one of fine only or he or
she is acquitted.

Under subsection 3 No judgment delivered by a magistrate’s court shall be deemed to be invalid

by reason only of the absence of any party or his or her advocate on the day or from the place
notified for the delivery of the judgement, or of any omission to serve, or defect in serving, on the
parties or their advocates, or any of them, the notice of that day and place.

Form and content of judgement.

This is provided for under S.136 MCA which states that;
(1) Every judgment delivered under section 135 shall, except as otherwise expressly provided by
this Act, be written by, or reduced to writing under the personal direction and superintendence of
the magistrate in the language of the court, and shall contain the point or points for determination,
the decision thereon and the reason for the decision and shall be dated and
signed by the magistrate as on the date on which it is pronounced in open court.

Subsection (2) allows shorthand or any mechanical means under the superintendence of the
magistrate and the transcription of the judgement signed by the magistrate.

Where there is more than one offence, subsection (3) provides that, the judgment shall specify the
offence of which, and the section of the Penal Code Act or other law under which, the accused
person is convicted.
Omnibus sentencing, acquittal or conviction is illegal. The judgement must specify the counts for
which you are sentencing and who is being sentencing

Subsection (4) states that in the case of an acquittal, the judgment shall state the offence of
which accused person is acquitted and shall direct that he or she be set at liberty.

(5) The judgment in the case of a conviction shall be followed by a note of the steps taken by the
court prior to sentence and by a note of the sentence passed together with the reasons for the
sentence when there are special reasons for passing a particular sentence

Akadit S/O Lengobe and Anor v R (1951) 18 EACA 193

The two appellants were convicted of murder. The trail of the accused so far as taking of the
evidence and recording the opinions of the assessors were concerned was concluded on 20th june
1950 but the magistrate did not give judgement and convict the accused until 20th April 1951. The
magistrate felt it necessary to investigate rumours that the deceased man alleged to have been
murdered was still alive.

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Held S. 318 Criminal Procedure Code requires that a judge shall give judgement after recording
the assessors opinions. The words “the judge shall then give judgement” must mean that the
judgement should be given if not immediately atleast with reasonable dispatch. Appeal dismissed.
Judge was justified.
Judgment is not judgement until reduced into writing and delivered in court.

Misango v Republic [1969] 1 EA 538

The appellant was charged on 24 counts, 12 of forgery and 12 of stealing by a servant. The trial
commenced on September 28, 1968, and there were numerous adjournments. Between November
15 and 25, 1968, defence counsel requested and was granted permission to peruse the case file.
Defence counsel saw in the case file a sheaf of paper which was headed “Judgment” and
accordingly on November 25, 1968, submitted that, as the magistrate had already started writing
his judgment, the defence was prejudiced and no more witnesses could be called. The magistrate
ruled against the submission. The case then proceeded with the prosecution calling two more
witnesses who were not cross-examined by the defence. The appellant was convicted on all 24
counts. On appeal it was contended that the magistrate had prejudged the issues; that the further
prosecution evidence was admitted to bolster and fill in the gaps in the prosecution case to the
prejudice of the appellant; and that because of these irregularities the conviction should be
quashed. On appeal:
Held -
(i) a judgment is not a judgment until it is reduced to writing and delivered in open court;
( ii) the magistrate did not prejudge the case before the close of the prosecution case, and the sheaf
of papers on which he had written constituted his rough notes or summary of the evidence and to
this extent he had committed no irregularity;

Sentences cumulative unless otherwise ordered.

S.192 MCA states that;

(1) Where a person after conviction for an offence is convicted of another offence, either before
sentence is passed upon him or her under the first conviction or before the expiration of that
sentence, any sentence of imprisonment which is passed upon him or her under the subsequent
conviction shall be executed after the expiration of the former sentence, unless the court directs
that it shall be executed concurrently with the former sentence or of any part of it;

Except that it shall not be lawful for a court to direct that a sentence of imprisonment in default of
payment of a fine or of any part of a fine shall be executed concurrently with a former sentence
under section 180(c)(i).

Subsection (2) provides that where a person is convicted of more than one offence at the same
time and is sentenced to pay a fine in respect of more than one of those offences, then the court
may order that all or any of those fines may be noncumulative.

SENTENCING
Sentencing is the act of imposing a punishment on a convict.

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Judge Bamugemereire1 quoted HL Hart 1968 who defined a sentence as follows.
❖ It entails some pain, discomfort or such consequences normally unpleasant.
❖ Punishment must be for an offence against legal rules.
❖ Punishment must be on an actual or supposed offender for an offence.
❖ Punishment must be intentionally administered by human beings other than the offender.
❖ Punishment must be imposed and administered by an authority constituted by a legal
system against which an offence is committed.
There are different reasons for which offenders are punished. The most common aims are
retribution, incapacitation, rehabilitation/reformation, deterrence, denunciation,
2
restitution/compensation and reconciliation.
Forms of sentence.
A sentence can be by way of a confession. It’s a criminal record ordered after conviction.
It can be a suspended sentence
Custodial; this is the commonest where a person is confined
Death penalty as an exception to Article 22
Fines
Prohibition from doing certain things.
Disqualification from holding office. Under the Anti-Corruption Act, a convict may be disqualified
from holding a public office.
Community service.
From the above, classification of sentences are generally in 4 types.
❖ Punitive
❖ Compensatory
❖ Custodial
❖ Rehabilitative
Considerations before giving punishment.
❖ Participation of the offender in committing the crime including the age.
❖ Social economic circumstances of the offender
❖ Age. Refer to Festo Asenua v Uganda. A person below 18yrs can not be sentenced to
death.

Festo Androa Asenua And Anor V Uganda Criminal Appeal No. 1 Of 19 98

1
In a paper presented to third year law students of Makerere University 4 th may 2012 titled THE SENTENCING
PROCESS IN THE HIGH COURT AND IMMEDIATE REMEDIES AVAILABLE TO AN ACCUSED PERSON WHO HAS BEEN
CONVICTED AND SENTENCED.
2
Ibid.

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 The court observed that there is unsatisfactory evidence in regard to proof or disproof of
the age of A2doctors showed that A2 was aged 2 5 years. Dr. Barungi apparently orally
and on oath mentioned that age to the trial Judge. The doctor was not cross-examined on
it. When A2 gave evidence on Oath in the trial within a trial on 2nd February 19 9 6 he
testified that he was aged 2 0 years on that day. He repeated this on 2nd April 1996 when
he gave his defence on Oath. On both occasions A2 was not cross-examined on his age.
When his sister D.W.4 testified that A2 was aged 20 years, having been born during
December 1975, she was also not challenged on this. Prosecution Counsel committed a
blunder by not cross-examining A2 and D.W.4 on the age of A2.
The matter of age was not canvassed in the Courts below

Held;
Since there was conflict about the age of the 2nd appellant, Dr. Barungi or any other doctor
could have been asked to examine the appellant and testify about the age. Or after the
testimony of the appellant and his sister the trial Court should have ordered that the second
appellant be medically examined to ascertain his age. In her judgment the trial did not
determine A2's age. Appellate court considered whether justice demands examination of
the 2nd appellant.

The appeal by A2 against the sentence of death succeeds. Order that A2 be detained in safe
custody pending an order to be made under
Section 104(1) of T.I.D. by the Minister

❖ Remand period.
The Supreme Court has emphasized the need to consider the remand period while
sentencing the accused.

In Bukenya Joseph V Uganda Criminal Appeal No. 17 o f 2010

Now Clause (8) reads as follows—
“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.”

Taking the remand period into account is clearly a mandatory requirement. As

observed above, this Court has on many occasions construed this clause to mean in effect
that the period which an accused person spends in lawful custody before completion of the
trial, should be taken into account specifically along with other relevant factors before the
court pronounces the term to be served. It does not mean that taking the remand period
into account should be done mathematically such as subtracting that period from the
sentence the Court would give. But it must be considered and that consideration must be
noted in the judgment. The sentiments expressed by the learned trial judge are no doubt
reasonable but the law must be followed
Court found that the Court of Appeal erred in not considering the failure by the trial Judge
to comply with Article 23(8). The sentence of life imprisonment imposed by the trail Judge
and confirmed by the Court of Appeal was set aside. Taking into account the period of

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 roughly 3 years, from 23rd September, 2000 to 21st November, 2003 which the appellant
spent in police custody and on remand the appellant, who was over 70 years of age, was
sentenced instead to imprisonment for twenty years.

❖ Plea of guilty.
❖ Previous convictions related to the same offence.
Refer to provisions on sentencing. Sections 164, 165, 162, 163 175 176 177 178, 181, 182 -194
Also Part 17. , S.200 on property of accused. and 196 on frivolous charges
IN EXERCISE of the powers conferred upon the Chief Justice by article 133 (1) (b) of the
Constitution, he issued on this 26th day of April, 2013 Constitution (Sentencing Guidelines for
Courts of Judicature) (Practice) Directions, 2013 also known as sentencing guidelines.
Regulation 3; The objectives of these guidelines are (a) to set out the purpose for which offenders
may be sentenced or dealt with; (b) to provide principles and guidelines to be applied by courts in
sentencing; (c) to provide sentence ranges and other means of dealing with offenders; (d) to
provide a mechanism for considering the interests of victims of crime and the community when
sentencing; and (e) to provide a mechanism that will promote uniformity, consistency and
transparency in sentencing.
Regulation 4 defines the key terms and the offences.
Reg 6 provides for General sentencing principles
Every court shall when sentencing an offender take into account—
(a) the gravity of the offence, including the degree of culpability of the offender;
(b) the nature of the offence;
(c) the need for consistency with appropriate sentencing levels and other means of dealing
with offenders in respect of similar offences committed in similar circumstances;
(d) any information provided to the court concerning the effect of the offence on the victim
or the community, including victim impact statement or community impact statement;
(e) the offender’s personal, family, community, or cultural background;
(f) any outcomes of restorative justice processes that have occurred, or are likely to occur,
in relation to the particular case;
(g) the circumstances prevailing at the time the offence was committed up to the time of
sentencing;
(h) any previous convictions of the offender; or
(i) any other circumstances court considers relevant

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Under Reg.15. Remand period to be taken into account. (1) The court shall take into account any
period spent on remand in determining an appropriate sentence. (2) The court shall deduct the
period spent on remand from the sentence considered appropriate after all factors have been taken
into account.
Under Reg 17 the court may only pass a sentence of death in exceptional circumstances in the
“rarest of the rare” cases where the alternative of imprisonment for life or other custodial sentence
is demonstrably inadequate.
The guidelines further provide circumstances under which a death sentence should be handed
down. Therefore courts are not mandated to pass down death as the only sentence.
What is the relationship between the guidelines and the statutory guidelines for example S.133(2)
which requires court to make its independent inquiries to arrive at a proper decision. There is
debate as to whether the sentencing guidelines take a way court’s discretion to determine an
appropriate sentence.
On the face of it, the sentencing guidelines have made it easier for the court to pass a sentence.
Appealing against a sentence.
When a sentence is illegal, that is not founded on law.
Where sentence was manifestly high.
Cases on sentences.
Jackson Zita v R supra;
It was held ; That in order for an appeal against sentence of imprisonment to succeed, the sentence
must be illegal or the court must be satisfied that the sentence is manifestly inadequate or
manifestly excessive.
The maximum sentence for defilement is death. In this case, the sentence of seven years
imprisonment is not illegal nor manifestly excessive taking into account that the appellant had
been in custody for 2 years.

Uganda v Edward Mutyaba (1971) 1 ULR 45

The accused had stolen two cars. One on 20th Nov 1969 and another three days after. He pleaded
guilty to the first theft and was sentenced to 4 years imprisonment. He was subsequently tried for
the second theft, convicted and sentenced to 3 years imprisonment.
Whether conviction on the first theft constituted a previous conviction for purposes of enhancing
the sentence on the second theft?
Held
Although the conviction for which the accused had been sentenced to 4 years imprisonment was
in respect of an offence committed three days earlier than the offence for which he was sentenced
to three years, the first conviction could not be regarded as a previous conviction for the purposes
of assessing the appropriate sentence for the second conviction.

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To constitute a previous conviction, the date of the earlier conviction had to be previous to the date
of the subsequent offence.
The effect of the sentences imposed by the lower courts was that the accused would serve a total
of seven years imprisonment and the application for enhancement would be refused.
Uganda v. Joel Oluka (1991) HCB 3 it was held the accused being 46,years, no corporal
punishment could be imposed or inflicted on him according to section 191(2)(b) of the M.C.A
In Nkera v R (1984) HCB 3
It was held that a sentence of 2 and half years imprisonment for robbery was, lenient considering
the gravity of the offence. Where a person is convicted of robbery and is not sentenced to suffer
death the convicting court should ensure the person so convicted to pay such compensation to the
victims of the robbery as it is just regarding the injury sustained.
Shaban Birumba v Uganda ((Cr.Appeal No.32 Of 1989)
Held.
With regard to sentence, the First and Second Appellants, were fond to be under 18 years of age
at the time of conviction (they have stated that they were 16 years and 13 years of age
respectively). It appears to the Court that having regard to their ages, reform should be aimed at.
In accordance with Section 5 of the Reformatory Schools Act (Cap.111), the appellants are
sentenced to five years imprisonment, but they are ordered, instead of undergoing sentence, to be
sent to a reformatory school and then to be detained for a period of not less than 3 years and not
more than 5 years.

Sentence should be imposed after conviction.

Uganda v. Silver Nabugemu (1991) HCB 5
The accused was charged with theft of millet and pleaded guilty. He was sentenced to 15 months
imprisonment. The file reached the High Court for revision, on perusal, it was discovered that after
recording, the accused’s plea and receiving the facts, the court proceeded to impose a sentence of
15 months without convicting him. The prosecution did not give the antecedents of the accused
and neither was accused called upon to make any statement in mitigation. Court however on its
own motion declared the accused a habitual criminal.
HELD
The sentence which was imposed when the accused had not been convicted as required by section
131(1) of the MCA was null and void. The purported sentence of 15 months’ imprisonment was
null and void as it was imposed on the accused, who had neither been found guilty nor convicted.
Illegal sentence set aside. Retrial not ordered as sentence was served.

Remedies to a convict/ defence lawyer.

Revision

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Appeal
Bail pending appeal
ROLE OF DIRECTOR OF PUBLIC PROSECUTIONS

The office of the DPP is established under Article 20 of the Constitution. It provides under clause
5 that in exercising his or her powers under this article, the Director of Public Prosecutions shall
have regard to the public interest, the interest of the administration of justice and the need to
prevent abuse of legal process.
Public interest is paramount and is the primary consideration behind every decision to prosecute
or not to prosecute. It is therefore expected that all prosecutions should be appropriate in public
interest. That’s why there has to be investigations ie searches, collection of evidence,
interrogations etc
The idea is to ensure that prosecution does not turn into abuse of process. There should be a
likelihood of the prosecution resulting into a conviction. DPP should ascertain whether the
available evidence can sustain the charge.
Therefore, by taking a decision to prosecute, a DPP is expected to make a careful assessment of
all available evidence and determine whether the facts disclose a prima facie case.
Areas to consider.
Cogency of the evidence
Admissibility of evidence
Credibility of evidence
Consistency of prosecution witness
Availability of the witness
Competencies of witnesses
This has to be an on-going process; this is important because the overall objective of criminal
prosecutions is to secure convictions.
Other factors;
Seriousness/gravity of the offence; the opposite of triviality
The prevalence of the offence
Public concern or lack of it
Attitude of the victim (refer to Art 126)
Physical or mental health of the accused
The antecedent of the accused

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Willingness of the accused to cooperate with the law enforcement agencies in the prosecution of
others---etc
Refer S. 196 of the MCA…it provides that If on the dismissal of any private prosecution by a
magistrate’s court, the court shall be of opinion that the charge was frivolous or vexatious, the
court may order the private prosecutor to pay to the accused person, in addition to his or her costs,
a reasonable sum as compensation for the trouble and expense to which the person may have been
put by reason of the charge.
Ref; the role of DPP in private prosecutions? What are the limitations of private prosecutions.
Refer to S. 42 of the MCA 42(1)(c)
NB; a privte prosecutor need not be injured as a result of the alleged offence. It is enough if he has
reasonable and probate cause to believe that an offence has been committed by any person and the
facts disclose a prima facie case.
Prima facie case; see Bhatt v R (1957) EA 332 EACA supra
A definition of a prima facie case was given by Sir Newhan Worley D, in Ramalal T. Bhatt v
R (1957) E.A 332 ABR 335, as follows:

‘It may not be easy to define what is meant by a prima facie case, but at least it must mean one
on which a reasonable tribunal, properly directing its mind to the law and the evidence could
convict if no explanation is offered by the defence.
Kyagonga v Uganda [1973] 1 EA 486

The applicant made an accusation of theft on a private prosecution initiated by a written complaint
to the magistrate. No formal leave of the court for the prosecution was recorded but the
complainant was allowed to lead evidence. The complaint was dismissed and the magistrate found
that it was frivolous and vexatious and of his own motion ordered the applicant to pay
compensation to the accused. He did not hear the applicant before making this order. The facts
showing the complaint to be frivolous and vexatious are set out in the judgment.
On revision
Held –
(i) the prosecution was a private prosecution even though no formal consent to prosecute had been
recorded;
( ii) the applicant knew that the charge was untrue and it was therefore frivolous and vexatious;
(iii) the court may of its own motion award compensation even though application will normally
be made by the accused;
(iv) as the magistrate had not called on the applicant to show cause why, the order for
compensation was made contrary to the principles of national justice.
Order set aside.

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THE PROCEDURE OF HEARING AND DETERMINING CASES IN THE HIGH COURT

S.1 of the TIA provides that the High court shall have jurisdiction to try any offence under any
written law and may pass any sentence authorised by law, provided that no criminal case shall be
brought under the cognisance of the high court for trial unless the accused person has been
committed for trial to the high court in accordance with the provisions of the MCA.
This means that the only way the high court entertains a case is by way of committal.
S.168 MCA provides for the preliminary proceedings in cases to be tried by the high court. (these
are cases which carry a maximum penalty of death)
under S.168 (1) MCA, when a person is charged in a magistrate’s court with an offence to be tried
by the high court, the DPP will be required to file in the magistrate’s court an indictment and a
summary of the case signed by him or her or by an officer authorised by him or her in that behalf
acting in accordance with the instructions.

S.168(2) MCA, the summary of the case shall contain such particulars as are necessary to give the
accused person reasonable information as to the nature of the offence with which he or she is
charged
S.168(3) MCA, when a person charged with an offence to be tried by the high court appears before
a magistrate, and the DPP has complied with subsection (1), the magistrate shall-
a) give the accused a copy of the indictment together with the summary of the case
b) read out the indictment and the summary of the case and explain to the accused
person the nature of the accusation against him or her in a language he or she understands and
inform him or her that he or she is not required to plead to the indictment
c) commit the accused person for trial by the high court and transmit to the registrar of
the high court copies of the indictment and summary of the case

168(4) if the person committed is on bail granted by any court, without prejudice to his or her right
to apply for bail, the bail shall lapse and the magistrate shall remand him or her in custody pending
his or trial.
This section was challenged in the case of Sam Kuteesa v Attorney General and was declared null
and void.
Sam Kuteesa and Ors v Attorney General CONSTITUTIONAL PETITION NO.46 OF 2011

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The petitioners challenged the constitutionality of section 168 (4) of the Magistrate’s Courts Act
vis-à-vis Article 23 (6) (a) of the Constitution. They sought court to declare and order that the
impugned section is inconsistent with and in contravention of the constitution, that bail granted by
a Magistrate to an accused does not lapse by reason of that person being committed for trial to the
High Court and that the committing Magistrate’s court has power to maintain or grant bail to the
person being committed.

Held;

To the extent that section 168 (4) allows an inferior court to cancel the bail granted to an accused
by a superior court, such as the High Court, which has unlimited original jurisdiction in all matters
and to which decisions of inferior courts go by way of appeal under Article 139, is in our view,
inconsistent with the said Article 139. It is also in contradiction with section (4) of the Judicature
Act, cap.13.

Where, therefore, a court of law, in the exercise of its judicious discretion, as part of judicial power,
decides to grant bail to a person arrested in respect of a criminal offence, it would be contrary
to Article 126 (1) of the Constitution, for another court, by the authority of section 168 (4) of the
Magistrates Courts Act, to override the decision granting bail by automatically lapsing the same
on the sole ground that the person, the subject of the bail, is being committed to the High Court
for trial.

That section 168 (4) rescinds the constitutionally guaranteed power of the court to grant bail,
through the court’s exercise of its discretion. It acts counter to the fundamental right of an accused
person to apply for and receive the discretionary consideration of the court before which such
accused person is brought, to maintain the already granted, or to grant bail. Its purpose and effect,
if construed in accordance with the 1995 Constitution, results in its being contrary to Articles 23
(6) (a) and 28 (1) of the Constitution

That pursuant to Article 274 of the Constitution, section 168 (4) of the Magistrate’s Courts Act
must be construed in such a way as to provide that:

1. Bail granted, by a court of competent jurisdiction, to a person arrested in connection of

a criminal case does not automatically lapse by reason only of the fact of that person
being committed to the High Court for trial.
2. Subject to being competently seized of jurisdiction under the law,the court committing an
accused person to the High Court for trial, has power derived from Article 23 (6) (a) of
the Constitution to maintain bail already granted or to grant bail to an accused person, or
to cancel bail for sufficient reason, after hearing the parties concerned on the matter.

It should be noted that under S.169, it is within the discretion of the DPP to decide which offences
are to be proceeded with under section 168 for trial before the high court or to be tried by a
magistrate’s court. The DPP can have a case that falls within the jurisdiction of the magistrate’s
court committed to the high court.

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Soon Yeon Kong Kim And Anor V Ag Constitutional Reference N0 6 Of 2007

Court gave the history of committal proceedings.

“We would like to point out that pre-trial disclosure in the trial before the High Court in
Uganda was the norm rather than the exception until 1990 when the Magistrates Court
(amendment) Statute N0. 6 of 1990 was enacted. Before that enactment, there were
preliminary hearings conducted by Chief Magistrates or Magistrates Grade one for cases
triable by the High Court. The purpose of the preliminary hearings was to screen out those
cases where the prosecution evidence was too weak to justify a trial.
In the preliminary hearings, the prosecution would produce its full evidence before the
Magistrate who would record it in the presence of the accused person. That was in fact a
pre-trial disclosure. Where the evidence was found insufficient the conducting Magistrate
had powers to discharge the accused.
In 1967, the Criminal Procedure (summary of Evidence) Act was enacted. This changed
the purpose of Preliminary hearing from screening to disclosure. The purpose became to
give to the accused advance knowledge of the prosecution’s case. The Director of Public
Prosecutions was required under this Act to file with the Magistrates Court a proper
indictment and a Summary of Evidence containing the substance of the evidence of each
would-be witnesses for the prosecution. In the summary of evidence, reference was made
of exhibits intended to be produced by the prosecution at the trial. These exhibits would be
produced in court at the committal proceedings, marked and taken into custody of the court.
Copies of the summary of evidence would be given to the accused. This too was full pre-
trial disclosure

After the person is committed to the high court for his trial, the procedure for trial is almost
similar to that of the magistrate’s courts except for a few differences.
The provisions relating to the trial procedure in the high court are found under s.60-81 of the TIA
and S.83 of the TIA.
Briefly the procedure is as follows;
S. 60 TIA, the indictment shall be read out to the accused by the chief registrar or other officer of
the court and shall be explained and interpreted where need for interpretation arises. The accused
will then be required to plead to the indictment instantly.

The accused may at this stage plead that he has been previously convicted or acquitted as the case
may be, of the same offence or that he or she has obtained the president’s pardon for his or her
offence. S.61 TIA, if the pleas are denied by the prosecution, the court shall go ahead to determine
whether the plea is true in fact and if the court finds that the plea is false, the accused shall be
required to plead to the indictment.

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If the accused person refuses to plead and just stands mute, or fails to answer directly to the
indictment, the court shall if it thinks fit, enter a plea of not guilty on behalf of the accused and
such plea shall have the same force as if the accused person had actually pleaded not guilty. S.62
TIA
If the accused pleads guilty, the plea shall be recorded and he or she may be convicted on it.

Proceedings after a plea of not guilty.

If the accused pleads not guilty or a plea of not guilty is entered in accordance with s.62, the court
shall subject to the provisions of section 66 proceed to choose assessors and try the case. S. 65 TIA
Preliminary hearings.
Where the accused pleads not guilty, the court shall as soon as is convenient hold a preliminary
hearing in open court in the presence of the accused and his advocate and the advocate for the
prosecution to consider such matters as will promote a fair and expeditious trial. S. 66 TIA.
This section should be read together with S.71MCA. the opening statement is made in the
preliminary hearing.
At the preliminary hearing, the parties shall agree on the facts, issues, documents and any other
matter and the matters agreed shall be reduced into writing in what is called a memorandum of
matters agreed which will be read out to the accused in the presence of his advocate.
S.66(2)MCA provides that at the conclusion of a preliminary hearing held under this section, the
court shall prepare a memorandum of the matters agreed; and the memorandum shall be read over
and explained to the accused in a language that he or she understands, signed by the accused and
by his or her advocate and by the advocate for the prosecution, and then filed.

The duty to prepare a memorandum is cast on the court as reiterated in Jackson Zita v Uganda
Criminal Appeal NO 19 of 1995

Court referred to its earlier ruling in Kanyike’s case ( Abbasi Lanyike V Uganda Criminal Appeal
No 34 of 1989) where it had referred to S.64(2) TID now 66(2) TIA and observed that what the
legislature had in mind in S.64(2) TID now 66 (2) TIA was that the court itself should draw up a
memorandum or list of the facts and admitted documents which are not in dispute.
Held; subsection 2 of section 64 requires the trial judge to draw up a memorandum of
agreed facts which memorandum must form part of the record of evidence. That the trial
judge must write down a memorandum of agreed facts and that in this case the trial judge
failed to comply with that subsection.

S.66(3) MCA provides that any fact or document admitted or agreed (whether the fact or document
is mentioned in the summary of evidence or not) in a memorandum under this section shall be
deemed to have been duly proved; but if, during the course of the trial, the court is of the opinion

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that the interests of justice so demand, the court may direct that any fact or document admitted or
agreed in a memorandum filed under this section be formally proved.

In Jackson Zita v Uganda Criminal Appeal NO 19 of 1995 court found that the disputed medical
evidence in this case had been admitted as an exhibit with the consent of the defence counsel at
the trial and was signed by the accused and the trial judge and therefore formed part of the record.

At the commencement of the trial and after the preliminary hearing has been concluded, each
assessor shall take an oath impartially to advise the court to the best of his or her knowledge, skill
and ability on the issues pending before the court. S. 67 TIA.

The Court in Charles Katumba v Uganda CRIMINAL APPEAL NO.8 OF 1981 commented
on the manner of handling a preliminary hearing. Quoted verbatim below;
Before we leave this case we wish to comment on the manner in which the trial judge
conducted the preliminary hearing under section 64 of the Trial on Indictments Decree.

Only evidence of one witness was admitted. The record of the preliminary hearing reads
thus:
“PRELIMINARY HEARING
MULINDWA: We are admitting the summary of Evidence of No.2599 D/CPL — read to
the accused translated in Luganda, a language he understands.
COURT: Memorandum of the matters agreed is prepared and signed by (1) the accused;
(2) advocate for the accused and (3) advocate for the prosecution.”
The Memorandum of admitted facts is very brief and states as follows:
“MATTERS AGREED
The Summary of the evidence of No.2599 D/C OCHOM in the S/E P.W.8.
Signed by (1)………………………………
Accused
(2) ……………….……………………
Advocate for accused
(3)…………………..………………..
Advocate for prosecution
In his summing up to the assessors the trial judge read out to them the evidence of Detective
Corporal Ochom as it appeared on the Summary of Evidence. With respect, we feel this
was a classic case of how not to conduct a Preliminary hearing. The matters agreed ought
to be set out clearly and must be read, out to the assessors in summing up as they and not
what appears in the Summary of Evidence, form part of the evidence in the trial. As it is,
the Memorandum is useless as it does not set out the agreed facts. We note that guidelines
to be followed by the judges in Preparing Memoranda of’ admitted facts have been ably
set out by this court in Tenga v Uganda, Cr. Ap. No.5 of 1982 and by the defunct Court
of Appeal for East Africa in Kanyankole v. Republic (1972) E.A.308

Challenging an assessor

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S.68 TIA provides that the accused person or his or her advocate or the prosecutor may before the
assessor is sworn, challenge the assessor for cause on any of the following grounds; presumed or
actual partiality, personal cause such as infancy, old age, deafness, blindness or infirmity, his or
her character- has been convicted of an offence, his or her inability to adequately understand the
language of the court.
Under subsection 2 when a challenge is disputed, the issue shall be tried by the judge
and the person challenged may be examined on oath
After the assessors have been chosen and sworn in, the prosecution shall open its case against the
accused person and shall call witnesses and adduce evidence in support of the indictment. S. 71
TIA.
The witnesses called by the prosecution shall then be subjected to cross examination by the accused
person or his or her advocate and to re examination by the advocate for the prosecution. S. 72 TIA.
At the close of the case for the prosecution, the court if it considers that there is no sufficient
evidence that the accused committed the offence, shall after hearing the advocate for the
prosecution and the defence, record a finding of not guilty. S. 73(1) TIA.
However if the court finds that there is sufficient evidence that the accused committed the offence,
it shall inform the accused of his right to give evidence on his or her own behalf, to make an un
sworn statement, to call witnesses in his or her defence. S.73(2) TIA. The court shall then ask the
accused or his advocate if he wishes to exercise any of the rights under the paragraphs and his
answer shall be recorded. If the accused indicates that he doesn’t wish to exercise any of his rights
under the section, the court shall invite the advocate for the prosecution to sum up its case for the
prosecution.
The accused person will then open his case, stating the facts or law on which he intends to rely
and making such comments on the evidence for the prosecution and the accused person may give
evidence on his behalf or make an unsworn statement. The accused or his advocate will then
examine its witnesses, if any and after their cross examination and re examination if any, may sum
up his or her case. S. 74(1) TIA.
If the accused person adduces evidence that introduces a new matter, the court may allow the
prosecution to adduce evidence in reply to contradict that matter s.76 TIA
ASSESSORS
WHO IS AN ASSESSOR?
Section 3 of the TIA provides that except as provided by any other written law, all trials before the
high court must be with the aid of assessors, whose number must be two or more.

According to Douglas Brown in his book criminal procedure in Uganda and Kenya at pg 137, An
assessor in law is a person who is appointed to advise the judge. Although the number of assessors
at a hearing must be two or more, the practice in the high court has always been to restrict it to
two. Assessors are lay people selected in the locality by the chief magistrate in the area. They must

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be persons with a very good reputation in their areas. The assessors’ selection, qualification and
attendance are governed by the assessors rules set out in the schedule to the trial on indictment act.
Under the schedule, every chief magistrate is required to prepare, before the first day of the month
of March in each year, a list of persons in his magisterial area who qualify to serve as assessors.
Rule 1 of the assessors’ rules.

The list of assessors must be posted at the at the court house for inspection by the public and any
person who wishes to object to a particular person being included on the list of assessors may do
so. Rule 3(1). Any such objection is heard and determined by the chief magistrate or a magistrate
grade I of the area.

After the hearing of the objections about a person’s suitability to serve as an assessor, the chief
magistrate will amend the list and strike out the name of the person not suitable, in his judgment
to serve as an assessor. Rule 4(1). A copy of the list so revised shall then be sent to the chief
registrar. Rule 4(2). The list so prepared shall be again revised once in every year and if any person
suitable to serve as an assessor is found in any magisterial area after the list has been settled, her
name will be added to the list by the chief magistrate of the area. Rule 4 (4)

WHO IS ELIGIBLE TO SERVE AS AN ASSESSOR?

All citizens in Uganda who are not exempted and who area between the ages of 21 and 60 and who
are able to understand the language of the court with a degree of proficiency sufficient to be able
to follow the proceedings shall be liable to serve as assessors at any trial held before the high court.
Rule 2 (1).
❖ Must be a citizen of Uganda
❖ Between the ages of 21 and 60
❖ Must understand the language of the court – English
The following persons are exempt from liability to serve as assessors. Rule 2 (2)
❖ Persons actively discharging the duties of priests or ministers of their respective religions
❖ Medical practitioners, dentists and pharmacists in active practice
❖ Legal practitioners in active practice
❖ Members of the armed forces on full pay (it is not clear why these categories of people are
exempted from serving, perhaps as these are professions or callings which require active
and full attention, it might not be easy for those concerned to perform fully their duties as
assessors which frequently involve long sittings, without causing serious disruptions in
their normal duties)
❖ Members of the police forces or of the prison services
❖ Persons exempted from personal appearance in court under the provisions of any written
law for the time being in force, relating to civil procedure- diplomats, president.

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 ❖ Persons disabled by mental or bodily infirmity (these are exempted for obvious reasons-
an assessor must be able to understand and follow the proceedings and must also be able
to stand for long hours
❖ Persons exempted from serving by statutory instrument made by the minister challenging
the appointment of an assessor.

According to section 67 of the TIA, assessors must be sworn in at the commencement of the trial
but after the preliminary hearings and after the accused has pleaded to the indictment. According
to section 68, before assessors are sworn the accused and or his advocate and the advocate for the
prosecution have the right to challenge the propriety of the choice of a particular assessor. They
can do so on the following grounds;
a) presumed or actual partiality- an assessor who goes to court with a pre conceived idea
as to what the judgment of the court should be even before hearing the evidence is not what is
required or expected of an assessor or an assessor who has an interest in the case
b) personal cause such as infancy, old age, deafness, blindness or infirmity
c) his or her character in that he or she has been convicted of an offence, which in the
opinion of the judged renders him unfit to serve as an assessor
d) his or her inability adequately to understand the language of the court

According to section 68 (2) TIA, when a challenge is disputed, it becomes a triable issue and the
person challenged may be examined by the court as to the allegations about his incompetence

Ndirangu s/o Nyagu v R 1959 EA 875

The appellant was convicted of murder on the evidence of eye-witnesses. Throughout the trial the
appellant refused on unreasonable grounds to be represented by assigned counsel, chose to remain
mute and took no part whatsoever in his trial. On appeal when called upon, he said that the wife
of one of the assessors at his trial was the sister of the deceased’s wife and he complained that this
had prejudiced him. Since there was nothing in the record to indicate either that the appellant had
objected to this assessor at the time he was selected or that the learned trial judge had told the
appellant that he could so object if he wished, the court inquired of the trial judge who stated that
the appellant had neither objected nor had been told that he might object. The court accordingly
adjourned the hearing of the appeal in order to call the assessor concerned to give evidence whether
he was related to the deceased. The assessor swore that he was in no way related to the deceased
or his wife.

Held – though there is no express provision in the Criminal Procedure Code requiring that an
accused be given the opportunity of objecting to any of the assessors, to do so is clearly sound
practice which should be followed.
Appeal dismissed; In any event, it was the appellant’s own fault that this story was not before the
court of trial, since he chose to remain mute although informed of his right to give sworn evidence
or to make an unsworn statement .

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ABSENCE OF ASSESSORS
According to section 69 of the TIA, if in the course of the trial and before verdict an assessor is
from sufficient cause unable to attend throughout the trial or absents himself, and it is not
practicable immediately to enforce his attendance, the trial shall proceed with the aid of the other
assessors.
According to section 69(2) TIA, if more than one of the assessors are prevented from attending or
absent themselves, then the proceedings shall be stayed and a new trial shall be held with the aid
of different assessors.
Kenga v Republic [1999] 1 EA 145
Absence of assessor –

During the trial and when the Appellant had given his sworn testimony, one of the three assessors
was severely reprimanded for previous non-attendance at the hearing, and was expelled from
participation in the proceedings by the Learned Judge. He was further ordered not to serve as an
assessor for a period of two years.

Whether court has power to expel a sitting assessor or bar his participation due to absence

held Obiter dictum – There is grave doubt as to whether or not a judge had power under sections
297, 298 and 299 of the Criminal Procedure Code (Chapter 75) to expel a sitting assessor or bar
his participation once a trial had begun with the prescribed number of assessors. Section 298(1)
casts on the trial court a duty of inquiring as to the whereabouts of an absent assessor. If he is not
found in the precincts of the court and his exact whereabouts are unknown, and the court cannot
immediately enforce his attendance, the trial shall proceed with the aid of the other assessors.

Bwenge v Uganda [1999] 1 EA 25

The Appellant was tried and convicted before the High Court on a charge of murder. At his appeal,
his counsel raised a procedural issue relating to the conduct of the trial. He informed the court that
the trial Judge had permitted one of the assessors to absent herself from part of the trial and to
resume her participation at a later date and give an opinion. He submitted that this irregularity was
fatal to the whole trial.

Whether an assessor who absents herself from part of a trial can resume her role at a later date?

Held;
The assessor in question, having absented herself from part of the trial thereby missing the
evidence of one witness, should not have been permitted to resume participation and give an
opinion in the case. Allowing her to resume her participation was a fundamental irregularity fatal
to the trial. This had occasioned a miscarriage of justice as her opinion, which was not based on
the full evidence, could have influenced the trial Judge’s decision. Where the participation of an
assessor in a trial amounted to a fundamental irregularity, a miscarriage of justice was occasioned
that was not curable under section 137 of the Trial on Indictments Decree. In such circumstances,
the court had discretion to order a retrial if the interests of justice required it.

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Zoreka and another v Uganda [1986–1989] 1 EA 603
The two appellants were jointly convicted of murder contrary to section 183 of the Penal Code and
sentenced to death by the High Court. Their appeal was based on the ground that the learned Judge
had been in error to allow one of the assessors to resume his seat and participate in the proceedings
after the Judge had excused him from attendance. During his absence, the hearing continued. He
later resumed his seat and the appellant besought the Court to declare the trial a nullity for this
subsequent participation.

Held;
Where the Court excuses an assessor from attending trial, to proceed with the hearing
of the case in the absence of the assessor is lawful. However, it is unlawful to allow the
absent assessor to resume his seat and give his opinion

Once an assessor has been given leave of absence and the trial continues, the absent
assessor ceased to be an assessor. The Court is not properly constituted if the absent
assessor returns and resumes his seat, after he has not heard all the evidence. Trial
nullity. (emphasis mine)

Mukulu v Republic [2005] 1 EA 297

The appellant was charged with an offence of murder. Most of the trial took place with three
assessors. However, one assessor failed to attend as the trial drew to its close and the Court ordered
that the case continue with the two assessors present. Subsequently the third assessor returned and
gave his opinion on the case. The appellant was convicted and appealed, arguing that the failure
of the assessor to attend one of the trial sessions amounted to a procedural lapse vitiating the
conviction.

Held – Once an assessor in a murder case is dropped from the proceedings for whatever reason,
he may not be allowed back to the trial. The re-admission of the dropped assessor in this case was
a grievous error making the entire trial a mistrial. The Court was not inclined to order a retrial
because it had been difficult to trace witnesses even for the first trial, and the accused had already
spent several years in prison.

Ndaula v Uganda [2002] 1 EA 214

On 3 May 1999, the appellant was arraigned before the High Court and charged with the offence
of rape. He denied having committed the offence. Two people were then selected to serve as
assessors in his trial. Hearing of the case eventually commenced on 14 June 1999 without the
assessors having been sworn. This omission was at no time adverted to during the trial. The trial
court found the appellant guilty of the charge

Whether failure to Failure to swear in assessors rendered trial a nullity?

Held; Omitting the oath and proceeding to trial with unsworn assessors therefore constituted an
irregularity in the trial proceedings. The omission did not, however, go to competence or

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jurisdiction since an assessor did not become an assessor by reason of taking the assessor’s oath
but rather took the oath because he was an assessor, duly listed and selected to serve as such.
Accordingly, the irregularity fell within the ambit of section 137 and no failure of justice
was occasioned.
This has caused complaints where the assessors are only two, and one absents, whether trial to
proceed with one assessor?
Anthony Okwonga v Uganda
During the trial of this case, when PWl was being cross-examined, one of the gentlemen
assessors sought leave of the trial judge to leave because his child was sick. The judge dispensed
with his attendance and continued the trial with only one assessor.

Court considered the law on absence of assessors and held;

section 67(1) of the Trial on Indictment Decree which provides as follows:

"If in the course of a 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, and it is not practicable immediately to enforce his attendance, the trial shall
proceed with the aid of the other assessors."

section 3(1) of the Trial on Indictment Decree, which states as follows:

"3(1). Save 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.

The court of appeal held that such procedure was irregular. The trial judge should have
adjourned the trial for a while to enable the assessor attend to his sick child and then return. In
case the gentleman assessor was unable to return, the judge should have selected another
assessor to replace him because PWl was a hostile witness and his evidence was of no effect in
the case. No other witness had testified at that stage.

The Supreme Court agreed with the interpretation of the word assessors as including assessor as
was held in Obura -vs- Uganda (supra) and in Mugisha Joseph. that by section 3 of the
Interpretation Decree 1976, expressions in the plural includes singular and it therefore followed
that the word "Assessors" at the end of section 67(1) of the Trial on Indictment Decree must be
construed as meaning "Assessor" as the case may be. (emphasis mine)

In the instant case, it was held that although the prudent course would have been for the trial judge
to start the hearing afresh with new assessors because the trial had not gone far, the learned trial
judge was entitled under section 67(1) of the Trial on Indictment Decree, to proceed with one
assessor. In the instant case the trial started with two assessors, and when the second assessor did
not come back after the learned trial judge had permitted him to go and attend to his sick child, the

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learned trial judge was entitled to continue the trial with the aid of the remaining one assessor
under the provisions of section 67(1) of the T.I.D.

The rule therefore is that where the trial commences with two assessors and one of them absents
himself, the court is entitled to proceed with one assessor.

SUMMING UP TO ASSESSORS
this is the procedure after the close of both the prosecution and the defence. It is a direction by the
judge to the assessors on the matters before court for which he seeks their opinion. The judge must
sum up the law and evidence in the case and shall require the opinion of the assessors which should
be given orally.
At the end of the evidence for both the prosecution and the defence, the judge will be required to
sum up the law and the evidence in the case to the assessors and shall require each of the assessors
to state his or her opinion orally and shall record each such opinion. S. 82(1) TIA. The judge shall
take a note of his or her summing up to the assessors.
The summing up notes must appear on the record.
Samusoni Mukono and another v Uganda [1965] 1 EA 491

The appellants were convicted of murder and the court held that on evidence which the trial judge
accepted, there being no misdirection on his part, the appellants were properly convicted. There
were no notes on the record of proceedings of the trial judge’s summing up to the assessors and
the court made observations on the advisability of recording notes of the summing up to the
assessors.
Held –
the judge is should sum up the evidence to the assessors, and that when he does so, notes of the
summing up should appear on the record of proceedings

Jackson Zita v Uganda Criminal Appeal NO 19 of 1995

Whether trial judge erred in law when he failed to record atleast the substance of his
summing up to the assessors?

Held;
That by not recording the note of his address to the assessors, the trial judge acted contrary to S.81
of the TID. Omission to write a note of summing up can lead to quashing a conviction if injustice
is caused to the accused. This did not occasion a failure of justice in this case as the portion of the
record shows that the judge summed up to the assessors for a period of 32 minutes, when the
assessors retired, within twenty five minutes they were able to return to court and gave their
opinions referring to the salient features of the evidence in the case advising the judge to convict.
It was therefore presumed that the judge properly directed the assessors on the issues in the case.

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However, in holding court did not approve the deplorable procedure adopted by the judge and
stated the rule as thus; “a trial judge’s notes of summing up is a must under S.81(1). In a case
where assessment of the evidence and or direction on the law is or are involved, the judge’s note
on summing up to the assessors is most relevant in deciding whether or not the trial judge
conducted the trial in accordance with the law.

In Simbwa Paul v Uganda

On ground 3, learned Counsel for the appellants argued that the learned trial Judge grossly
erred in law and fact when she did not sum up the case to the assessors for their
opinion. There was no record of summing up notes on record. This occasioned a
miscarriage of justice, as the assessors were not guided on the law.

There is clear evidence on record that the learned trial Judge summed up to the assessors
on page 72. However, the substance of the summing up was not reproduced in full. All that
the learned trial Judge stated was that:

“Summing up notes delivered to the assessors. When will the assessors be ready with
their opinion?”

This is what appears in the original record as well. We therefore conclude that summing
up was done but the content of the summing up notes is note on record. It is a good and
desirable practice that the substance of the summing up notes to assessors appears in the
record of proceedings. It is the only way an appeal court can tell whether the summing up
was properly done. We are however satisfied that this essential step was undertaken by the
trial Judge and that failure to file the notes on record was not fatal to the conviction.

We also consider it good practice that the opinion of each of the assessors should appear
on record. In this case, we note that the assessor’s opinion appears in full on pages 73-75
of the record of proceedings
Bihinganwa v Uganda (1986) HCB 2
The appellants were convicted of aggravated robbery and sentenced to death. The judge did not
sum the law and evidence in the case to the assessors.
Held’
The summing up and the recording of the opinion of the assessors were not done in accordance
with the requirements if S.81(1) TIA. The learned judge should have summed up the law and the
evidence in the case to the assessors and then required each of the assessors to state his opinion
orally and recorded it. The above provision was mandatory. Appeal allowed.
R v Dinu d/o Sombi (1947) 14 EACA 136
Held

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It is important that before a trial judge sums up the evidence for the prosecution and the defence
to the assessors that the addresses of counsel if any should be concluded so that the judge may
have in his mind all the submission made on the evidence both in order to direct himself and the
assessors where he thinks necessary.
Upar v Uganda [1971] 1 EA 98

The appellant was tried for rape before a judge and assessors. In his statements to the police he
made consent an issue, but he did not pursue this in his unsworn statement at the trial. The judge
made no notes of his summing up to the assessors and did not deal specifically with the issue of
consent.
The appellant appealed.

Held – (i) notes of the summing up to assessors should be made by the judge in all cases however
simple;
( ii) lack of consent always remains an essential element of the crime of rape and should have been
specifically dealt with. No failure of justice had occurred as the evidence proved lack of consent

Rajabu Salum v The Republic [1965] 1 EA 365

The appellant had failed to establish the defences of intoxication and provocation and was
convicted of murder. On appeal the court again rejected these defences. At the trial after summing
up to the assessors the judge put a great number of questions to the assessors and the court
commented on the procedure adopted by the judge
Held –
(i) there can be no objection to the trial judge putting questions to the assessors but they should be
confined to matters or issues peculiarly within the knowledge of the assessors and in respect of
which the trial judge should have their opinion; further the questions and answers should not be of
the nature of examination or evidence and the assessors must be given an opportunity to express
their views on the case generally;
( ii) several of the questions which were put and the answers given by the assessors did not comply
with s. 283 (1) of the Criminal Procedure Code and the last question put to the assessors by the
judge did not invite their opinion on the case as a whole or on the general issue of the guilt or
innocence of the accused as is specifically required;
(ii) the procedure adopted by the trial judge, though irregular, had not occasioned a
miscarriage of justice in view of the evidence led at the trial

It was held in Philibert v Republic [1976–1985] 1 EA 477 that it is desirable in all but the clearest
cases that a trial judge should make a note of the points put
by him to the assessors in his summing up to the assessors, and of the evidence which he has stated
as supporting or otherwise each point
As far as summing up to the assessors is concerned, it should be done in simple language. .
OPINION OF ASSESSORS
After summing up, the judge will request each assessor to give her opinion orally and then the
judge will record such opinion. S.82 TIA. The assessors may retire to consider their opinions after

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summing up and if they so wish and during such retirement, they may consult with one another.
S.82(4) TIA.
In the case of Uganda v Charles Kangameito, it was stated that it is improper for assessors to
form their opinions before hearing counsel’s submissions and the summing up.
The judge should direct the assessors on the salient points of law and evidence and he or she may
put specific questions. However, the opinion of assessors must be on the case as a wholly and a
general issue on the innocence or guilt of the accused person.
Selemani s/o Ussi v Republic [1963] 1 EA 442
The appellant stabbed and killed the deceased who, with other persons, was pursuing the appellant
at night with a view to apprehending him on a reasonable suspicion that he had committed a felony.
During the trial prosecuting counsel asked if the defence would “concede that the accused stabbed
another person besides the deceased” and defending counsel agreed. Subsequently when asked for
their opinions, the assessors gave these, but they were not asked nor did they state specifically
whether they considered the accused was guilty or not guilty as charged.

Held;
In addition to any other answers which may be given, each assessor should state specifically
whether he considers the accused person to be guilty or not guilty on each count on which he is
required to state his opinion
Abdullahi Ali HY Ogad Omer v R [1958] 1 EA 725
The appellant was convicted of the murder of his wife and sentenced to death. It was also
contended that the evidence of the accused’s state of mind had not been sufficiently considered,
that the trial judge had not referred to the question of provocation in his summing-up to the
assessors, and that he was incorrect in ruling that the assessors could not be permitted to consult
together before delivering their opinions.

Held;
While it was not correct to remove the question of provocation from the assessors, it was clear that
even if the appellant’s story had been taken at its face value (and the judge had rejected it), the
provocation received could not have justified so brutal a retaliation, and as the judge would clearly
have over-ridden the assessors whatever their opinion on the question of provocation might have
been, the omission did not affect the result.
(ii) there is nothing in principle against the retirement of assessors for consultation; this is a
frequent practice throughout East Africa, but the fact that the assessors were not permitted to retire
was not an irregularity affecting the conviction.

It should be pointed out that the assessors’ opinions are not binding on the judge but where the
judge doesn’t conform to the opinions of the majority of assessors, she shall state her reasons for
departing from departing from their opinions in her judgement. S. 82(3) TIA provides that the
judge shall then give his or her judgment, but in so doing shall not be bound to conform to the
opinions of the assessors. S. 82(2) TIA

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Akadit S/O Lengobe and Anor v R (1951) 18 EACA 193
The two appellants were convicted of murder. The trail of the accused so far as taking of the
evidence and recording the opinions of the assessors were concerned was concluded on 20th june
1950 but the magistrate did not give judgement and convict the accused until 20th April 1951. The
magistrate felt it necessary to investigate rumours that the deceased man alleged to have been
murdered was still alive.
Held
S. 318 Criminal Procedure Code requires that a judge shall give judgement after recording the
assessors opinions.
The words “the judge shall then give judgement” must mean that the judgement
should be given if not immediately atleast with reasonable dispatch.
Appeal dismissed. Judge was justified.

Fred Sabahashi v Uganda (1994) V KALR 127

The appellant was indicted jointly with another with the murder of a suspect in prison cells. The
trial court after the close of the prosecution case ruled that the available evidence did not establish
a case of murder against the accused but only manslaughter. However, the assessors had advised
the judge to convict the accused of common assault. On appeal
Whether trial court erred in not giving reasons for the departure from advice of assessors?
Held; S. 81(3) of the TID provides that the trial judge gives reasons for his disagreement with the
assessors. In the instant case even if the reasons were not explicitly put, they were reasonably
inferred from the judgement.
Mutwalubi Bukulu and others v Busoga [1964] 1 EA 713
The appellants were charged jointly with and convicted upon two counts of burglary and attempted
burglary contrary to customary law by the assistant chief judge of the District African Court of
Busoga sitting at Kaiti. The case was tried with the aid of two assessors who disbelieved the
prosecution case and were both of the opinion that the prosecution witnesses were merely guessing
that the appellants had committed the offences charged. The judge did not conform to the opinion
of the assessors. In his judgment he accepted the case of the prosecution, found the four appellants
guilty and convicted them. He disagreed with both assessors on points of fact and said “the reason
is not that they did not see the facts but that both assessors are not worthy the name of assessors
as they think in religion more than justice”. He also observed that both assessors were Moslems
and that the accused were sons of a prominent Moslem well known to them. On appeal the
substantial grounds argued on behalf of the appellants were that the reasons given by the judge for
not conforming to the opinion of the assessors should be treated as no reasons at all because it was
contrary to public policy for him to make improper and unfounded allegations that the assessors
were more interested in religion than in justice and that it was wrong in law for him to have
imported in the case his personal knowledge and be influenced by such knowledge.

Held;

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(i) it was beyond the realm of propriety for the judge to have described the two assessors as
unworthy of the name, and also to have implied that he had no faith in their sense of judgment and
integrity because they were incorrigible and their motives suspect;
( ii) the strictures were some of the reasons advanced by the judge for disagreeing with the findings
of the assessors and, therefore, there was compliance with the law

Philibert v Republic [1976–1985] 1 EA 477

At the trial of the accused for murder, the trial judge directed the assessors to consider drunkenness
and provocation as possible defences which had been put forward by the accused. The assessors
never touched on those issues when they gave their opinions on other vital aspects of the case, but
the trial judge considered and dealt with those aspects on which the assessors were silent. The trial
judge did not record in full his summing up to the assessors but recorded notes of the points he put
to the assessors.

Held – That a court must take the opinion of each assessor on the case generally, but is not obliged
in addition to take their opinions on specific points which on their general view of the case do not
arise, and, therefore, where the assessors having been made aware of the issue on which their
advice is required for decision hold views on the vital point left for determination and also hold
other views on other vital points but are silent and do not express any opinion on a particular point
also requiring determination after being addressed by the trial judge on the merits of the case, the
trial judge is right in resolving the issue not specifically touched by the assessors after he required
an opinion from them on the particular point and they fail to give their opinion on it specifically;

and, in this case, since the assessors had been specifically directed to find the accused guilty of
manslaughter if they were of the opinion that there was such provocation as would have induced
an ordinary member of his community to kill, and since the assessors were aware of the issue of
provocation while giving their opinions, it followed that their failure to specifically advise the trial
judge on that issue, coupled with their specific finding about the accused being guilty of murder,
meant that the assessors must have been of the view that there was no legal provocation, and there
was no need for them to give a specific advice on the issue, and the trial judge was right in resolving
the issue of provocation himself.

That a trial judge sitting with assessors though required to pay and should pay attention to the
opinions of assessors and give them due weight on the issue left for their determination and advice
thereon, is nevertheless entitled and duty bound to, and must, resolve the issue on the basis of, and
according to, his own view founded on his knowledge and experience of the people as well as his
own wisdom and knowledge of life as well as of law.

Mehar Singh Bansel v R [1959] 1 EA 813

The appellant, a surgeon, was convicted of manslaughter and appealed on grounds of alleged
misdirection in the summing-up and the irregular procedure of the trial judge in formulating
specific questions for the opinion of the assessors instead of taking their opinions on the case
generally which it was submitted was contrary to s. 318 of the Criminal Procedure Code and to
natural justice.

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Held –
(i) there had been minor but no material misdirections which would justify any interference with
the conviction.
( ii) section 318 of the Criminal Procedure Code is mandatory in requiring the trial judge to take
the opinions of the assessors generally on the case as a whole but there is no objection to specific
questions being put to the assessors either before or after a general opinion on the case has been
obtained.
(iii) the irregularity did not cause any prejudice to the accused and was curable under s. 381 of the
Criminal Procedure Code.

Once the summing up is concluded no further evidence ought to be given.

R v Owen (1952)1 ALL ER 1040

The appellant was convicted on an indictment charging him with carnal knowledge of a girl under
sixteen. It was alleged that the offences were committed in the X-ray room of a public clinic on
three afternoons, and a police witness was cross-examined to show that the clinic was a much
frequented place. After the summing-up the jury, who had been enclosed for some time, sent a
message to the judge saying they wanted evidence whether the clinic was empty or occupied at the
material times. A doctor who had given evidence was then re-called and he stated that generally
speaking no doctors or patients would be at the clinic at the material times. The jury retired again
and shortly afterwards returned a verdict of Guilty. On appeal,

Held – Whether evidence should be admitted after the defence had been closed to rebut matters
raised for the first time by the defence was a matter for the discretion of the judge, who should
apply his discretion with caution, but after the whole case had been concluded and it only remained
for the jury to deliver their verdict it was not right to allow further evidence to clear up some matter
which was troubling the jury.

However, should the judge allow the defence to address court after obtaining answers to questions
put to the assessors, the proper procedure is to give direction to the assessors on the matters raised
by the defence and to record the assessors’ opinions as failure to do so might prejudice the accused.

R v Dinu d/o Sombi (1947) 14 EACA 136

In this case the trial was declared a nullity and retrial ordered where counsel for the appellants
addressed trial court after the judge had summed up to the assessors, then the judge put specific
questions to assessors and obtained their answers, counsel for the defence addressed court again
on law and fact and the judge recorded his agreement to opinions already taken without any further
charge to the assessors and found all the appellants guilty.
Held;
It is important that before a trial judge sums up the evidence for the prosecution and the defence
to the assessors that the addresses of counsel if any should be concluded so that the judge may
have in his mind all the submission made on the evidence both in order to direct himself and the
assessors where he thinks necessary.

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An omission to record notes to summing up to assessors may lead to quashing of the case if an
injustice is caused to the accused.
This was held in Jackson Ziita supra.;
Held;
That by not recording the note of his address to the assessors, the trial judge acted contrary
to S.81 of the TID. Omission to write a note of summing up can lead to quashing a
conviction if injustice is caused to the accused. This did not occasion a failure of justice in
this case as the portion of the record shows that the judge summed up to the assessors for
a period of 32 minutes, when the assessors retired, within twenty five minutes they were
able to return to court and gave their opinions referring to the salient features of the
evidence in the case advising the judge to convict. It was therefore presumed that the judge
properly directed the assessors on the issues in the case.
In the case of Godfrey Tinkamalirwa and another v Uganda, it was stated that some of the matters
which the judge should direct the assessors on are;
a) the contradictions and inconsistencies in the evidence
b) the weight to be given to certain pieces of evidence e.g evidence of a hostile witness
c) when court may base a conviction on identification by a single witness
d) when court may rely on circumstantial evidence, etc…
Circumstantial evidence was considered in Charles Kayumba v Uganda supra.The prosecution
case rested wholly on circumstantial evidence. It was the defence contention both at the trial and
on appeal, that that evidence was not sufficient to warrant the conviction. Learned counsel for the
appellant attacked the trial judge’s approach to that evidence. He argued that the trial judge had
not properly directed himself or the assessors on the law governing circumstantial evidence and
that had he done so, the appellant would not have been convicted.
court observed;
Now, the summing-up notes show that the trial judge summed up thirteen different items
to the assessors. The seventh item dealt exclusively with the circumstantial evidence.
This is what he told them,
“There was no direct evidence. Evidence is circumstantial. Accused hated the deceased.
Threatened to kill the deceased; the night before the deceased died told P.W.4 he was
leaving the area and would never write to anyone of them, next day, deceased with whom
he shared a house, whom he hated, was found stabbed many times, dead, missing from the
house, accused absent from entire area, most of his property gone and four months later
found, as far away as Kampala. To whom else does the evidence point an accusing finger?”

With respect we think that the summing up fell short of what is required. A proper summing up
should include a statement that a conviction based solely on circumstantial evidence can only
be justified where the inculpatory facts are not compatible with the innocence of the accused
person,’ and are incapable of explanation upon any other reasonable hypothesis than that of
his guilt

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THE ROLE OF ASSESSORS IN CRIMINAL TRIALS.
As already pointed out the opinion of assessors is not binding on the judge. The question then
arises, what then is their role in criminal trials?
The assessors’ role in the colonial days was to advise the colonial judges on questions of fact and
custom. They were present to protect against a possible miscarriage of justice. The functions of
assessors appear to be two fold; the duty to assess and advise- they assess or weigh the evidence
as a whole and decide whether the accused is guilty or not in the light of their special knowledge
as to the habits, customs, modes of thought, and language of the particular society from which the
accused comes. Assessors may be able to tell from the accused demeanour that the accused or
witness is telling a lie which may escape the presiding judge’s mind.
Assessors’ also have a duty of advising the judge on matters upon which they have special
knowledge.
SENTENCES AND THEIR EXECUTION.
If the accused person is convicted, the judge shall pass on him or her according to the law. S. 82(5)
TIA.
If the accused is acquitted, he or she shall be immediately discharged from custody unless he or
she is acquitted by reason of insanity. S.82 (6) TIA.
The judgment in every trial in the high court shall be pronounced, or substance of the judgment
shall be explained, in open court either immediately after the termination of the trial or at some
subsequent time, of which notice shall be given to the parties and their advocates. S.85 TIA.
The accused must be present at the time of delivering the judgment and if in custody shall be
brought up. S.85 (2) TIA.
Sentence of death.
S.99 (1) TIA Sentence of death shall be carried out by hanging in accordance
with the provisions of the Prisons Act.

(2) When any person is sentenced to death, the sentence shall direct
that he or she shall suffer death in the manner authorised by law.

S.100.TIA Accused to be informed of right to appeal.

When an accused person is sentenced to death, the court shall inform him or
her of the period within which, if he or she wishes to appeal, his or her appeal
should be preferred.

S.101.TIA Authority for detention.

A certificate, under the hand of the judge by whom any person has been sentenced, that sentence
of death has been passed and naming the person condemned, shall be sufficient authority for the
detention of that person.

S.102 TIA. Record and report to be sent to Minister.

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(1) As soon as conveniently may be after sentence of death has been pronounced by the court, if
no appeal is preferred, or if an appeal is preferred and the sentence is upheld by the Court of
Appeal, then as soon as conveniently may be after the determination of the appeal, the High Court
shall forward to the Minister a copy of the judgment of the court and of the notes of evidence taken
at the trial, with a report in writing signed by the judge who presided at the trial containing any
recommendations or observations on the case which he or she may think fit to make.

The section referring to the minister should be read together with Articles 274 and 22. At the time
of enactment, the Court of Appeal was the highest appellate court, but under the constitution, it is
the Supreme Court.
S. 103.TIA Sentence of death on pregnant woman.
Where a woman convicted of an offence punishable with death is found in accordance with section
104 to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment for life
instead of a sentence of death.

Under S. 105 TIA Sentence of death shall not be pronounced on or recorded against a person
convicted of an offence if it appears to the court that at the time when the offence was committed
he or she was under the age of eighteen years.

S. 108.TIA Mitigation of penalties.

(1) A person liable to imprisonment for life or any other person may
be sentenced for any shorter term. (2) A person liable to imprisonment may be sentenced to pay a
fine in addition to or instead of imprisonment.

S. 109 TIA refers to corporal punishment, but this was outlawed by the case of Kyamanywa v AG.

S.110 Provides for fines.

PART IX provides for costs, compensation and restitution.

It should be noted that the High Court under Article 139 can pass any sentence prescribed by law.

COMPETENT VERDICTS.

The general principal of law is that an accused person should not be convicted of an offence with
which he was not charged unless he has had an opportunity of defending himself against the
alternative offence. However, both the MCA and TIA contain specific provisions where a person
can be convicted of an offence with which he was not charged. For example.

a) S. 145 MCA. Person charged may be convicted of a minor offence……When a person

is charged with an offence and facts are proved which reduce it to a minor cognate offence,
he or she may be convicted of the minor offence although he or she was not charged with
it.

An offence is minor to another if the punishment for it is less than the punishment for that offence.
In otherwords, to find out whether an offence is minor vis a vis another the test is the gravity of
the punishment for that other offence.

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It should be noted that a person can only be convicted of an offence which is minor and cognate.
Cognate means related by blood, akin in origin, nature or quality. An offence is cognate to another
if it is of the same species with that other.

In the case of Robert Ndecho and Anor v R (1951) 18 EACA 171

The appellants were tried with others on an information charging them with murder of a police
constable. The trial judge found that the prosecution had failed to prove common intention to kill
or cause grievous harm to the deceased. The appellants were convicted of willfully obstructing the
police in due execution of their duty or of persons acting in their aid.
It was held that Where an accused is charged with an offence, he may be convicted of a minor
offence although not charged with it, if that minor offence is of a cognate character, that is to say
of the same genus or species.
That The test to be applied when exercising such discretion is whether the accused person can
reasonably be said to have had a fair opportunity of making his defence to the alternative. “the
requirement to state the section under which the court convicts is mandatory.”
Ali Mohamed Hassani Mpanda v Republic [1963] 1 EA 294
The appellant was charged with others with obstructing police officers in the due execution of their
duty contrary to s. 243 (b) of the Penal Code. The magistrate found the appellant not guilty of the
offence charged but convicted him of the minor offence of assault occasioning actual bodily harm,
contrary to s. 241 of the Penal Code. On appeal it was considered whether the magistrate had
power to substitute a conviction of the lesser offence and whether that offence must be cognate
with the major offence charged.
Held –
(i) s. 181 of the Criminal Procedure Code can only be applied where the minor offence is arrived
at by a process of subtraction from the major charge, and where the circumstance embodied in
the major charge necessarily and according to the definition of the offence imputed by that charge
constitute the minor offence also, and further where the major charge gave the accused notice of
all the circumstances going to constitute the minor offence of which the accused is to be convicted.

( ii) an essential constituent of the minor offence of assault occasioning actual bodily harm is not
an essential constituent of the major offence of obstructing a police officer in the due execution of
his duty and the charge as drawn did not give the appellant notice of all that constituted the offence
of which he was convicted, since it contained no allegation of assault; accordingly s. 181 of the
Criminal Procedure Code was not applicable and the conviction under s. 243 (b) of assault
occasioning actual bodily harm must be set aside.
b) S. 146 MCA. a person charged with an offence, he or she may be convicted of having
attempted to commit that offence, although he or she was not charged with the attempt.

c) 147. MCA. Conviction for being an accessory after the fact. When a person is charged
with an offence, he or she may be convicted of being an accessory after the fact to the
commission of the offence although he or she was not so charged.

d) S.148-157;MCA a person charged with a misdemeanor will not be acquitted if the facts
prove in evidence amount to a felony. No person tried for such misdemeanor shall be liable

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 afterwards to be prosecuted for a felony on the same facts. Similar provisions under
Sections 87-93 of TIA.

APPEALS

The error that leads to an appeal must have demonstrated a miscarriage of justice. On has to be
aggrieved. To appeal is to show some kind of discontent, dissatisfaction or a criticism of a finding
or decision of court. It can also be understood as a complaint or objection.

The grievance could be for part or whole of the decision. It could also be a dissatisfaction on a
finding of law or fact or a mixture of law and fact. This means that not every complaint in a
decision would warrant an intervention by the appellate court.
The complaint should be on an issue which, if not addressed would lead to a miscarriage of justice.
An appeal could be summarily dismissed if it is to the contrary.

The purpose of an appeal should be to do justice in a particular case by correcting a wrong decision.
Appeal also serve a public purpose of ensuring that the public has confidence in the administration
of justice by correcting an improper decision by clarifying and or correcting the law thru making
of precedents. Appeals have to curtail the decisions of lower courts.

Who can appeal?

The DPP
The convict.

The DPP can appeal on the conviction and on the sentence if he feels that it was lighter though in
most cases, it is against acquittal that the DPP appeals. Appeals by DPP are limited to declaratory
judgements. This is one that the DPP gets upon the appeal of a judgement to overturn it and for
the change to be able to be used for future reference.

A dissatisfied convict can appeal in a manner prescribed by law. Appeals are a creature of statute
unless it is stated; there is no automatic right to appeal from a decision. Before commencing an
appeal the person so appealing must be sure that the right to appeal exists.

The restrictions in appeal are intended in part to ensure that volumes of cases at appeals level are
regulated and also on the other part to control the types of cases that require an evaluation so as
to achieve a finality in cases.

Decisions of lower courts and certainly not convicts are not reversed merely on account of errors
except where they are a miscarriage of justice. The exception to the functus officio rule is the “slip
rule” where you go back to the same judge to clarify an error.

In our criminal justice system we have the following appeals.

First appeals
Second appeals
Third appeals

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First appeals

After trial, the first appellate court for appeal is the first appeal. For example Grade II to Chief
Magistrate or High Court to Court of Appeal, or Chief Magistrate to High Court.

Appeals from magistrates courts.

These are provided for under S.204 MCA

S.204 (1) MCA Subject to any other written law and except as provided in this
section, an appeal shall lie—

(a) to the High Court, by any person convicted on a trial by a court presided over by a chief
magistrate or a magistrate grade I;

(b) to a court presided over by a chief magistrate, by any person convicted on a trial by a magistrate
grade II or grade III.

204 (2) MCA Any appeal under subsection (1) may be on a matter of fact as well as on a matter
of law.

Matter of law; should be capable of proof by evidence

Matter of law; something to be proved on principles of law

204(3)MCA No appeal shall be allowed in the case of any person who has pleaded guilty and has
been convicted on that plea by a magistrate’s court except as to the legality of the plea or to the
extent or legality of the sentence. Refer to Adan v R supra. Where the high court summarily
dismissed the appeal because he had been convicted on his own plea of guilty.

S.204 (4) MCA No appeal shall be allowed in a case where a court presided over by a chief
magistrate or a magistrate grade I has passed a sentence of imprisonment not exceeding one month
only, or a fine not exceeding one hundred shillings only.

204(5) MCA Where an accused person has been acquitted by a magistrate’s court, the Director of
Public Prosecutions may appeal on the ground that the acquittal is erroneous in law. Also DPP can
appeal to the High Court from the decision of a chief magistrate on an appeal on the ground that it
is erroneous in law. 204(7)
This means that the DPP appeals only on matter of law.

Second appeals from magistrates courts

S. 204(6) MCA Any party to an appeal determined by a chief magistrate under subsection (1)(b)
may appeal against the decision of the chief magistrate to the High Court on a matter of law (not
including severity of sentence) but not on a matter of fact. This means that as a second appeal it is
restricted to only matters of law.

Bail under appeal.

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As provided for under S.205. MCA, An appellant may, at any time before the determination of his
or her appeal, apply for bail to the appellant court, and the appellant court may grant the
bail.

S.40 CPCA provides that (2) The appellate court may, if it sees fit, admit an appellant to bail
pending the determination of his or her appeal; but when a magistrate’s court
refuses to release a person on bail, that person may apply for bail to the
appellate court.
S. 132(4) TIA, Except in a case where the appellant has been sentenced to death, a judge of the
High Court or the Court of Appeal may, in his or its discretion, in any case in which an appeal to
the Court of Appeal is lodged under this section, grant bail, pending the hearing and determination
of the appeal.

The case of Arvind Patel Vs Uganda S.C.C. Application N0. of 2003 set out the conditions to
be considered to grant bail to the applicant as follows
In my view, considerations which should generally apply to an application for bail
pending appeal as indicated by the cases above referred to may be summarized as
follows:
(i) the character of the applicant;
(ii) whether he/she is a first offender or not;
(iii) whether the offence of which the applicant was convicted involved personal
violence;
(iv) the appeal is not frivolous and has a reasonable possibility of success;
(v) the possibility of substantial delay in the determination of the appeal.
(vi) whether the applicant has complied with bail conditions granted after the
applicant's conviction and during the pendency of the appeal (if any).
His Lordship Justice order observed:

“In my view, it is not necessary that all the conditions should be present in every case. A
combination of two or more criteria may be sufficient. Each case must be considered on
its own facts and circumstances.

The above principles have thereafter been applied in hundreds of applications handled by this
Court to mention but a few. Frank Iga Vs Uganda Misc. Application N0. 099/2009, Kifamunte
Henry Vs Uganda Application N0. 10/197, Nalukenge Mildred Vs Uganda Misc. Cr. Appl.
N0. 56/2008, Angelo Muwanga Vs Uganda Misc. Cr. Appl. N0. 41/2008.
Also in Teddy Ssezi Cheeye Vs Uganda Cr. Appl. 31/2009 the accused who had been sentenced
to 7 years imprisonment was released on bail pending appeal.

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Also in Chandi Jamwa v Uganda CRIMINAL APPLICATION N0. 20 OF 2011 where the
accused had been sentenced to 12 years imprisonment for causing financial loss, the Court of
appeal granted the accused bail pending appeal following the guideline in Patel’s case.
In Christopher Lubale v Uganda , in this case court refused to grant bail pending appeal on
grounds of applicant suffering from AIDS. It was held that sickness of whatever nature cannot be
a ground for releasing a person on bail pending appeal. The burden of proof that an appeal has a
good chance of success lies on the applicant for bail.
It should be noted that the conditions for granting bail during trial are different from those of
grant of bail pending appeal. For bail pending appeal, there is no presumption of innocence since
one is already a convict.

In Teddy Sseezi Cheeye v Uganda miscellaneous criminal application no.37 of 2009

It was held; per S.G. Engwau JA
The court of appeal has jurisdiction to grant bail to any convicted person, who has lodged a
criminal appeal to court before the appeal is determined. This, however, is a discretionary
jurisdiction, which should be exercised judiciously.

It is to be noted that once the trial of an accused person is completed and he has been convicted,
his situation with respect to his release, changes significantly. The principles governing the release
of a convict on bail pending the hearing and determination of appeal are different from those of an
accused person who is still under trial because, the latter is presumed innocent until proved guilty.
The presumption of innocence and the right to participate in the preparation of a defense to ensure
a fair trial are not present where an accused person has already been tried and convicted.

It is contended further that the applicant’s character is an important consideration in this

application. He is a first offender aged 51 years old. The offences of which has was convicted did
not involve personal violence. He is a married man with a large family to look after. In my view,
the alleged hardship to his dependants perse does not justify a grant of bail.

The Supreme Court made it clear that all those conditions stated in Arvind Patel case (supra) need
not be present in every case. A combination of two or more may be sufficient for a grant of bail.
In the instant application, the following factors favour the applicant:

(i) that he is a man of good character and counsel for the respondent never addressed
court on this issue;
(ii) that he is a first offender, not disputed;
(iii) that the offences of which he was convicted did not involve personal violence;
(iv) that his appeal is not frivolous and has reasonable possibility of success;
(v) that due to heavy schedule of work in this court, the hearing of his appeal might
delay, and
(vi) that when he was released on bail by the High Court, he complied with the bail
conditions.
In view of the above, as laid down in the Supreme Court case of Arvind Patel (supra), I grant the
application. The applicant will be released on bail on the following terms.

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APPEALS FROM THE HIGH COURT.

These appeals arise in terms of their origin.

i. Where the decision was of the high court sitting as a court of first instance (in exercise
of its original jurisdiction)
ii. Where the high court was sitting as an appellate court from lower courts.
Article 134(2) provides that appeals lie to the court of appeal from decisions of the high court as
original court or appellate court as may be prescribed by law. This is further provided for by S.10
of the Judicature Act which provides for jurisdiction of the court of appeal.

S. 132 of the TIA provides for Appeals to the Court of Appeal from the High Court.

S132 (1)(a) provides that an accused person may appeal to the Court of Appeal from a
conviction and sentence by the High Court in the exercise of its original jurisdiction, as of right
on a matter of law, fact or mixed law and fact;

(b) an accused person may, with leave of the Court of Appeal, appeal to the Court of Appeal against
the sentence alone imposed by the High Court, other than a sentence fixed by law;

This means that under (a) the right of appeal is automatic, whereas under (b) the accused requires
leave of court on appeal on sentence alone. If the court of appeal refuses to grant leave to appeal,
a person can appeal such decision to the supreme court.

(c) where the High Court has, in the exercise of its original jurisdiction, acquitted an accused
person, the Director of Public Prosecutions may appeal to the Court of Appeal as of right on a
matter of law, fact or mixed law and fact,

Powers of an appellate court. The court of appeal may

132 (1)(d) confirm, vary or reverse the conviction and sentence;
(e) in the case of an appeal against the sentence alone, confirm or vary the sentence; or
(f) confirm or reverse the acquittal of the accused person.

(2) Where the Court of Appeal reverses an acquittal under subsection (1), it shall order the accused
person to be convicted and sentenced according to law.

This should be read together with S. 35 CPCA which provides for power of appellate court on
appeals from acquittals. It states that the appellate court may, on an appeal from an acquittal or
dismissal, enter such decision or judgment on the matter as may be authorised by law and make
such order or orders as may be necessary

Refer to Kato Kajubi v Uganda where the DPP appealed against acquittal and the court of appeal
ordered a retrial.

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.
Tigawalana Bakali Ikoba Criminal Appeal No.21 Of 2005

The respondents who had been jointly indicted of murder c/s 183 and 184 of the Penal Code Act
were all acquitted of the charge but the 2nd and the 3rd respondents were convicted of a minor
cognate offence of manslaughter. The Director of Public Prosecution appealed against the
acquittal on the murder indictment against the three respondents and the 2 nd and 3rd respondents
appealed against their conviction for manslaughter.

The court of appeal found that the three respondents should have been found guilty of murder.
The 1st respondent was wrongly acquitted and the 2nd and third respondents were wrongly
convicted of manslaughter. It set aside the order of acquittal and the convictions for manslaughter
and the sentences thereon and substituted it with a conviction of murder C/s 188 and 189 of the
Penal Code Act in respect of all the three respondents.

Simbwa Paul v Uganda

On sentence, the principles upon which an appellate court will act in exercising its
jurisdiction to review sentences are firmly established. The Court does not alter a sentence
on the mere ground that if the members of the court had been trying the appellant they
might have passed a somewhat different sentence. A court will not ordinarily interfere
with the discretion exercised by a trial judge unless it is evident that the judge has acted
upon some wrong principle or over looked some material factor or the sentence is
manifestly excessive or lenient, in view of the circumstances of the case. We consider that
the appellants were lucky to get away with murder with the sentence that they did. We see
no reason to interfere with the sentence, none of the principles on which we should interfere
with the sentence have been established.

(3) No appeal shall be allowed in the case of any person who has pleaded guilty in his or her trial
by the chief magistrate or magistrate grade I or on appeal to the High Court and has been convicted
on the plea, except as to the legality of the plea or to the extent or legality of the sentence. Adan v
R supra

S, 133 TIA provides for Appeals against special finding.

A person in whose case a special finding has been made may appeal against the finding to the
Court of Appeal on a question of law or of fact or of mixed law and fact, and the Court of Appeal
shall allow the appeal if it thinks that the special finding should be set aside on the ground that it
is unreasonable or cannot be supported having regard to the evidence, or that it should be set aside
on the ground of a wrong decision on any question of law if the decision has in fact caused a
miscarriage of justice, or on any other ground if the court is satisfied that there has been a
miscarriage of justice, and in any other case shall dismiss the appeal; but the Court of Appeal shall,
notwithstanding that it is of the opinion that the point raised in the appeal might be decided in
favour of the appellant, dismiss the appeal if it considers no substantial miscarriage of justice has
actually occurred.

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Special findings include where the accused may not follow the proceedings due to insanity. (S.
113 MCA)

Possible areas of complaints in appeals

Errors of law
Mixed law and fact
Exercise of jurisdiction
Legality of sentence
Any other sufficient reason.

It should be noted that our appeal system is adversarial. A person shall not be allowed to argue
grounds which were not argued in the lower court. The appellate process will be confined to the
issues canvassed in the lower court except with leave of court.
Court shall only come to one’s aid if the decision appealed against is so outrageous that it offends
a sense of propriety and court takes into account how timely the objections were made.

Wavamuno v Uganda [2001] 2 EA 608

The appellants appealed against decision of Court of Appeal that he had not been properly
committed for trial to the High Court as indictment and the summary of the case were missing ;
that the Court of Appeal had erred in failing to conduct a fresh re-appraisal of the evidence adduced
before the High Court, and that it had erred in relying on the doctrine of recent possession to
support his conviction.

Held’
Objections against the manner in which committal proceedings were conducted should be
raised at the earliest opportunity. The Supreme Court would not ordinarily consider points
of law that had not been raised in lower courts but as the point in issue here was of some
importance the court would address it. It was clear that certain requirements of section
163A(3)(a) and (b) of the Trial on Indictments Decree had not been complied with and this
fact should have (but had not been) raised at the time of trial, nor was it made a ground of
appeal in the Court of Appeal. Though the committal proceedings were irregular in that an
indictment and the summary of the case were missing, they were not a nullity as the
magistrate had jurisdiction and had actually made a committal order. In the circumstances,
the Appellant was not prejudiced in any way at his trial and the error did not occasion a
miscarriage of justice.

Appellant should also avoid pursuing inconsequential errors unless it is for the purpose of
correcting the law. S. 139(2) TIA. Provides that;

(1) Subject to the provisions of any written law, 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.

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 (2) In determining whether any error, omission, irregularity or misdirection has occasioned
a failure of justice, the court shall have regard to the question whether the objection could
and should have been raised at an earlier stage in the proceedings.

There is no room for an omnibus complaint. The appellant must specify the grounds and the
specific reason for complaint, whether it is a matter of law or fact or both.

Summary dismissal of an appeal.

S. 32 (1)CPCA On receiving a notice or grounds of appeal under section 28, the appellate court,
or a judge of that court, shall peruse it and after perusing the record of the trial court—
(a) in the case of an appeal against sentence only, where it considers that the sentence is not
excessive; or
(b) in any other case, where it considers that no question of law is raised proper for consideration
by it, or that there is no material in the circumstances of the case which could raise a reasonable
doubt whether the conviction was right or led the court to consider that the sentence ought to be
reduced, ; it may dismiss the appeal summarily without hearing the appellant.

However S, 32(2)(b) CPCA states that no appeal shall be summarily dismissed where the notice
or grounds of appeal has been signed by an advocate, unless the advocate has had an opportunity
of being heard in support of the notice or grounds of appeal.

S.32(4) CPCA the summary dismissal in this section does not apply to appeals to the Court of
Appeal or the Supreme Court.

Further S. 44. CPCAProvides for Dismissal of appeal for want of prosecution.

44(1) The appellate court may dismiss an appeal for want of prosecution—
(a) if the appellant, at any time before the appeal is determined, escapes from custody or
fails to appear after he or she has been released on bail; or

(b) if the appellant fails to take any necessary step in prosecuting his or her appeal within
the time allowed and has not made an application for extension of time

DUTY OF FIRST APPELLATE COURT

The leading authority is Pandya v R.

Pandya V R [1957] 1 EA 336

It was held that the court has a duty to evaluate the evidence and come to its own conclusions
independent of the trial court. The first appellate court is obliged to rehear the case by subjecting
the evidence to a fresh and exhaustive scrutiny, weighing conflicting evidence and drawing its own
inferences and conclusions from it. Ofcourse an appellate court should bear in mind that it has
neither seen nor heard the witnesses and should therefore make due allowances in this respect.

In Bogere and Another Vs Uganda, Uganda Supreme Court Criminal Appeal No.1 of 1997:
[1998] KALR 1, the Supreme Court reiterated that it was the duty of the first appellate court to

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rehear the case on appeal by reconsidering all the materials which were before the trial court and
make up its own mind. In doing so the appellate court has bear in mind that it did not have the
opportunity to observe the demeanour of witnesses at the trial, which opportunity the trial judge
had. Failure by a first appellate court to evaluate the material evidence as a whole constitutes an
error in law. To quote;

"As a first appellate court, the Court of Appeal has power to take into consideration,
evidence lawfully adduced at the trial but overlooked in the judgment of the trial court
and to base its own decision on it. In doing so however, the appellate court
must bear in mind that it did not have the opportunity to see and hear the witnesses, and
should, where available on record, be guided by impression of the trial judge on the
manner and demeanor of witnesses. What is more, care must be taken not only to
scrutinize and re-evaluate the evidence as a whole, but also to be satisfied that the trial
judge had erred in failing to take the evidence into consideration."

Simbwa Paul v Uganda CRIMINAL APPEAL NO. 023 OF 2012 it was held that As a first
appellate court, the Court has to reconsider the entire evidence on record and subject it to a fresh
and exhaustive scrutiny and make its own conclusion, bearing in mind that it did not have the
opportunity to see and hear the witnesses and should, where available on record, be guided by the
impression of the trial judge on the manner and demeanor of witnesses.

Anthony Okwonga v Uganda Criminal Appeal No.20 of 2000 Supreme Court

On the duty of the first appellate court; held;
That the Court of Appeal complied with its duty provided for in rule 29 of the Court of Appeal
Rules, which states:

"29(1) On any appeal from a decision of a High Court acting in the exercise of its original
jurisdiction, the Court may —(a) re-appraise the evidence and draw inferences of fact.

Where these provisions have been applied, this court has interpreted it to mean that on a first
appeal from a conviction by a judge, the appellant is entitled to have the appellate court's own
consideration and views of the evidence as a whole and its own decision thereon. As the first
appellate court, the Court of Appeal has a duty to rehear the case and to reconsider the material
evidence before the trial Judge. It must then make up its own mind not disregarding the judgment
appealed from but carefully weighing and considering it. See - Pandya -vs- R (1951) EA 336;
Ruwala -vs- R (1951) EA 510; Okeno -vs- Republic(1912) EA 32; Kifamunte Henry -
vs- Uganda. Cr. App. No. 10 of 1991. (SCU) (unreported) and Bogereand Another -
vs- Uganda (supra), and the more recent case of Odong Justine -vs- Uganda Cr. App. No. 13/2000
(SCU) (unreported)

That for the sake of clarity, this court put it this way in the case of - Bogere Moses (supra):
"As a first appellate court, the Court of Appeal has power to take into consideration, evidence
lawfully adduced at the trial but overlooked in the judgment of the trial court and to base its
own decision on it. In doing so however, the appellate court must bear in mind that
it did not have the opportunity to see and hear the witnesses, and should, where available on
record, be guided by impression of the trial judge on the manner and demeanor of witnesses.
What is more, care must be taken not only to scrutinize and re-evaluate the evidence as a whole,

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but also to be satisfied that the trial judge had erred in failing to take the evidence into
consideration."

Uganda v Lule [1973] 1 EA 362

The appellant’s appeal to the High Court was dismissed when his advocate failed to appear.
Thereafter, acting under its inherent jurisdiction, the High Court reinstated the appeal.
The Republic appealed from that order and contended that the Court of Appeal had jurisdiction to
hear the appeal since s. 331 B, Criminal Procedure Code gave jurisdiction, alternatively that s. 40
(1) of the Judicature Act conferred on the Court of Appeal the High Court’s inherent jurisdiction.
Held –
(i) there is no appeal from orders of the High Court incidental to a criminal appeal but not involving
the decision of the appeal (Ralph v. R. (1) followed);
( ii) s. 331 B Criminal Procedure Code gives the court powers but does not confer jurisdiction;
(iii) s. 40 (1) Judicature Act gives to the court powers only in respect of appeals in respect of which
jurisdiction is specifically conferred.
“It has long been established and we think there is ample authority for saying that appellate
jurisdiction
springs only from statute. There is no such thing as inherent appellate jurisdiction

Attorney-General v Shah (No 4) [1971] 1 EA 50

The High Court made an order of mandamus against two officers of the Government sub. nom.
Shah v. Attorney-General (No. 3) [1970] E.A. 543. The Attorney-General filed an appeal and the
respondent objected that the Court of Appeal had no jurisdiction to hear an appeal.
Held –
(i) appellate jurisdiction is solely created by statute and there is no inherent appellate
jurisdiction;
( ii) the right of appeal previously given had been repealed and not reenacted;
(iii) the Civil Procedure Act s. 82 does not give any right of appeal; it merely sets out the procedure
for appeals under other laws.
Appeal struck out

SECOND APPEALS

These are provided for under S. 45 CPCA. Which states that Either party to an appeal from a
magistrate’s court may appeal against the decision of the High Court in its appellate jurisdiction
to the Court of Appeal on a matter of law, not including severity of sentence, but not on a matter
of fact or of mixed fact and law.

This means that second appeals are only restricted to matters of law.
Examples of these appeals include.

High Court…to…Court of Appeal…Supreme Court.

Magistrate Grade I ..to..High Court…then..to Court of Appeal.

Chief Magistrate…..to..High Court…then..to Court of Appeal

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Magistrate Grade II..to..Chief Magistrate..High Court. This was already stated under S. 204(6)
which stated that Any party to an appeal determined by a chief magistrate may appeal against the
decision of the chief magistrate to the High Court on a matter of law (not including severity of
sentence) but not on a matter of fact.

Bongomin v Uganda CRIMINAL APPEAL NUMBER 096 OF 2011

The appellant as set out certain grounds of appeal which related to issues of fact or mix law and
fact. It was Held; that; This being a second appeal the appellant is barred from appealing to this
court on matters of fact or of mixed fact and law.

Mbogo and another v Shah [1968] 1 EA 93

The high court refused to set aside an exparte judgement entered against the appellants in an
insurance claim and the appellants appealed against this refusal.

Held;

That Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is
satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or
unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of
his discretion and that as a result there has been misjustice;

S.47. CPCA Admission to bail pending second appeal.

A judge of the High Court may in his or her discretion, in any case in which an appeal from a
decision of the High Court in its appellate jurisdiction to the Court of Appeal is filed, grant bail
pending the hearing of the appeal

DUTY OF SECOND APPELLATE COURT

All the second appellate court has to do is to decide whether the first appellate court re-evaluated
the evidence.

Kifamunte Henry Vs Uganda (Cr. App. No. 10 of 1997

It does not seem to us that except in clearest of cases, we are required to reevaluate the
evidence like is a first appellate Court save in Constitutional cases. On second appeal it is
sufficient to decide whether the first appellate Court on approaching its task, applied or
failed to apply such principles as stated in the case of Pandya.

This Court will no doubt consider the facts of the appeal to the extent of considering the
relevant point of law or mixed law and fact raised in any appeal. If we re-evaluate the facts
of each case wholesale we will assume the duty of the first appellate Court and create
unnecessary uncertainty. We can interfere with the conclusions of the Court of Appeal if
it appears that in its consideration of the appeal as a first appellate Court, misapplied or
failed to apply the principles set out in such decisions as Pandya

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 Once it has been established that there was some competent evidence to support a finding
of fact, it is not open, on second appeal to go into the sufficiency of that evidence or the
reasonableness of the finding. Even if a Court of first instance has wrongly directed itself
on a point and the court of first appellate Court has wrongly held that the trial Court
correctly directed itself, yet, if the Court of first appeal has correctly directed itself on the
point, the second appellate Court cannot take a different view.

On second appeal the Court of Appeal is precluded from questioning the findings of fact
of the trial Court, provided that there was evidence to support those findings, though it may
think it possible, or even probably, that it would not have itself come to the same
conclusion; it can only interfere where it considers that there was no evidence to support
the finding of fact, this being a question of law:
The above principles were reiterated in the case of Bogere Moses v Uganda supra.

Bogere Moses V Uganda CRIMINAL APPEAL NO. 1 OF 1997

Held. That, except in the clearest of cases, a second appellate court, is not required to re-evaluate
the evidence like a first appellate court. The instant case is one of such clearest of cases which
make it incumbent on this court to re-evaluate the evidence. This is so because it is apparent from
its judgment that the Court of Appeal did not evaluate the evidence as a whole, and in particular
in respect of the said material issues; with the result that it cannot be ruled out that a different result
would have been arrived at, if that evidence had been duly considered and evaluated. Needless to
say that failure by a first appellate court to evaluate the material evidence as a whole constitutes
an error in law

THIRD APPEALS

These are provided for under S. 46 CPCA.

Where an appeal emanates from a judgment of a magistrate grade II, and either the accused
person or the Director of Public Prosecutions has appealed to the chief magistrate, and
from there to the High Court, either the accused or the Director of Public Prosecutions may
lodge a third and final appeal to the Court of Appeal with the certificate of the High Court
that the matter raises a question of law of great public or general importance or if the
Court of Appeal in its overall duty to see that justice is done, considers that the appeal
should be heard; except that in such a third appeal by the Director of Public Prosecutions,
the Court of Appeal shall only give a declaratory judgment.

From the above, third appeal are restricted to questions of law of great public or general
importance. However, the court may entertain an appeal in the interests of justice; this would be
in line with Article 126.

Examples of third appeals include.

Magistrate Grade I ..to.. High Court…to…Court of Appeal…Supreme Court.

Chief Magistrate….. High Court…to…Court of Appeal…Supreme Court.

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Magistrate Grade II..to..Chief Magistrate..High Court…Court of Appeal.

TAKING ADDITIONAL EVIDENCE ON APPEAL

Generally speaking on appeal, the courts are reluctant to allow additional evidence. They do so
judiciously and in exercise of discretionary powers. Whoever, seeks to adduce additional evidence
must have an application to seek leave of court which at times takes a formal application with an
affidavit stating the ground for additional evidence.

Some of the grounds would be that the evidence sought to adduce was wrongly rejected by the
trial court or for some reason was not available at the time. In all cases the court must act
judiciously.

Unless otherwise directed, the accused person must be present when additional evidence is being
taken and it must be evidence relevant to the issue.

This is provided for under S. 41 CPCA.

(1) In dealing with an appeal from a lower court, the appellate court, if it thinks additional
evidence is necessary, may record its reasons and may take that evidence itself or may
direct it to be taken by the lower court.

(2) When the additional evidence is taken by a lower court, that court shall certify the
evidence to the appellate court which issued the direction which shall thereupon proceed
to dispose of the appeal.

(3) Unless the appellate court otherwise directs, the accused person or his or her advocate
shall be present when the additional evidence is taken.

(4) Evidence taken under this section shall be taken as if it were evidence at a trial before
the lower court.

It is only in very exceptional cases that the Court of Appeal will permit additional evidence to be
called;

The case of Elgood v R established principles upon which to admit additional evidence.

Elgood v Regina [1968] 1 EA 274

The appellant doctor was charged in the Supreme Court of the Seychelles with several counts of
procuring for women drugs knowing that the drugs were intended to be used to procure
miscarriages, contrary to s. 149, Penal Code. He was convicted upon medical evidence given for
the prosecution by three doctors and inferences drawn from a statement made to the police by the
appellant himself. Medical evidence was also given for the defence by three doctors. There was
considerable disagreement between the medical witnesses, only one of whom had any special
qualifications in the particular field concerned, and that one had only limited specialist knowledge.

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On appeal the appellant applied to call additional evidence, which was not available in the
Seychelles, from a highly qualified and experienced specialist in obstetrics and gynaecology. This
evidence was admitted, and it was to the effect that the treatment given by the appellant was
perfectly legitimate therapeutic treatment which could not possibly lead to anabortion.

Held
a.The principles upon which an appellate court in a criminal case will exercise its discretion in
deciding whether or not to allow additional evidence to be called for the purposes of the appeal
are:
(i) the evidence that it is sought to call must be evidence which was not available at the
trial;
( ii) it must be evidence relevant to the issues;
(iii) it must be evidence which is credible in the sense that it is well capable of belief;
(iv) the court will, after considering that evidence, go on to consider whether there might
have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that
evidence had been given together with the other evidence at the trial.

(b) it is only in very exceptional cases that the Court of Appeal will permit additional evidence to
be called;
(c) in the circumstances, in the interest of justice the application should be allowed.

R v Yakobo Isairi Busigo (1945) 12 EACA 60

During the hearing of the appeal by the appellant against his conviction of murder, it became
apparent that certain evidence tendered at the trial was not clear and the question arose whether
additional evidence should be called to clarify the position. In this case, evidence was that the
government chemist received two sealed jars and three sealed bottles yet evidence of the
intermediaries between the chemist and a doctor only referred to two jars and two bottles.
Held; That as it was not a question of calling new evidence but merely elucidating evidence
already on the record, it was a proper case for the exercise of the appellate court’s power. High
court directed to take additional evidence from witnesses who had testified at the trial.
Additional evidence should not be ordered to enable the prosecution fill in the gaps.

Rex v. Sirasi Bachumira (1936) 3 EACA 40, in which Crown counsel suggested that in the interest
of justice the Court should send back the case for a retrial or for the taking of further evidence.
The Court although expressing the view that it had power to do either, refused to exercise the
power on the ground that additional evidence should not be taken to fill a gap in the prosecution
case. The facts in that case were that there was no evidence identifying the person named Matundi,
who was admitted to hospital seven days after a person of the same name had been stabbed.

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In Delaney v Douglas (No 1) (1969) 3 ALL ER 1454 it was held that to admit new evidence, and
one requirement is that there must have been reasonable and due diligence applied which had failed
to reveal the evidence.

Abdalla Nassur v Uganda (1992-93) HB 4

The appellant was subsequently charged with murder. He denied the charge and pleaded
alibi. He was convicted. On appeal, Counsel for the appellant sought to adduce new evidence by
calling a number of : witnesses who were absent at trial. It was further contended that an appellate
court has jurisdiction to decide on matters which were not raised or decided on in the lower court.

Held
Additional evidence to be taken in special circumstances.

Under rule 29(1)(b) of the Court of Appeal Rules, the Supreme Court may in its discretion for
sufficient reason, take or direct additional evidence to be taken. But the principles on which
additional evidence could be taken were as follows.

The evidence that is sought to call must be evidence which was not available at the trial
It must be evidence relevant to the issues.
It must be evidence which is credible in the sense that is capable of belief.
After considering the evidence, the court has to go on and consider whether there would still have
been doubt in the mind of the jury is that evidence had been given together with the other evidence.

RETRIALS

In an appeal, the court may also order a retrial. S,34(2)(a) provides that the appellate court on any
appeal may reverse the finding and sentence, and acquit or discharge the appellant, or order him
or her to be tried or retried by a court of competent jurisdiction;

Retrials are discretionary and should be made judiciously and the accused should not be prejudiced
. it should be ordered in the interest of justice.

A retrial however, should not be ordered to enable the prosecution to fill up the gaps in the evidence
or correct mistakes for which it was to blame. Where, however, the defects in the original trial
were in no way in default of the prosecution and the interests of justice requires that the appellant
should be retried, the court should not hesitate to accede to a request for retrial

In Kato Kajubi v Uganda, the accused had been acquitted by the high court in Masaka which had
entered a no case to answer on a charge of murder of a 12 year old boy who was killed and his
body parts taken. However, the DPP appealed against acquittal and the court of appeal found that
there was enough evidence for the accused to be put to his defence. In ordering a retrial, the court
stated;

This case shocked the entire nation. It is in the interest of the respondent and the people of
Uganda that a just solution be found. At the risk of an amount of delayed justice, we think
the only viable resolution of the conflict between justice and impunity is to order that there
be a retrial in the High Court of Uganda before another judge.

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.

Ahmedi Ali Dharamsi Sumar v Republic [1964] 1 EA 481

Principles on which retrial should be ordered

The appellant was convicted by a magistrate of an offence under the Prevention of Corruption
Ordinance. The evidence was that the appellant gave one, O. through one, J., Shs. 800/- in order
to induce O., as Deputy Chairman of the Transport Licensing Authority, to agree to his substituting
a licence for a new vehicle for the existing licence of an old vehicle. The prosecution case depended
on the evidence of O. and J. both of whom stated definitely that each of them had seen the appellant
at different times on September 4. The magistrate rejected O.’s evidence that he had seen the
appellant on September 4, but went on to accept the prosecution case and found the appellant
guilty. On appeal to the High Court the judge held that the magistrate, having rejected a material
portion of O.’s evidence, had failed to direct his mind to the evidence of J. about the meeting on
September 4. He accordingly allowed the appeal and ordered a re-trial. The appellant appealed
against the order for re-trial.
Held –
(i) whether an order for re-trial should be made depends on the particular facts and circumstances
of each case but should only be made where the interests of justice require it and where it is not
likely to cause an injustice to an accused person;
( ii) there was ample evidence on which to convict the appellant if the prosecution witnesses were
believed, but the magistrate failed to test the evidence of J. in the light of his rejection of part of
the evidence of O.; since on a re-trial O. and J. might give different evidence on the very points on
which the magistrate had failed to direct himself, it would not be right to cause the appellant to
stand another trial.
Appeal allowed. Order for re-trial set aside.

M’kanake v Republic [1973] 1 EA 67

The evidence at the appellant’s trial for murder consisted of an alleged confession, the evidence of
an adult eye witness and of five small children. The appellant was not informed of his right to give
evidence or call witnesses on the admissibility of the confession, the adult witness had made a
statement to the police that she had not seen the deceased on the day of her death, and the judge
had not recorded that the children were of sufficient intelligence and understood the duty of
speaking the truth. Counsel for the respondent asked for an order for a retrial.
Held –
(i) the admission of the confession was improper;
( ii) the inconsistency in the evidence of the adult witness should have been dealt with;
(iii) the evidence of the children was improperly admitted;
(iv) the retrial was not asked for to fill gaps in the evidence nor to rectify faults of the prosecution,
and a retrial would be ordered.
The defects in the original trial were in no way the fault of the prosecution and the interests of
justice require that the appellant be retried.

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Fatehali Manji v The Republic [1966] 1 EA 343
The appellant was charged with the theft of a self-starter. The prosecution alleged that it was stolen
from a vehicle at Arusha on June 6, 1965, and that the appellant had it in his possession eight days
later when it was resold. The appellant’s defence was that he had purchased the self-starter from a
shop in Nairobi on June 10, 1965, and he produced a receipt. The prosecution led hearsay evidence
without leave that the shop did not exist. The magistrate called a police officer from Nairobi whose
evidence he accepted, to testify that the shop did not exist. The appellant was convicted. On appeal
to the High Court leave was given to adduce additional evidence to establish the existence of the
shop; eventually the prosecution conceded that the police officer was in error and the judge ordered
a retrial, being influenced by the inadmissible evidence. On further appeal to the Court of Appeal
the question for decision was whether
the order for retrial was justified or not.
Held –
(i) 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 insufficiency of evidence or for 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 own facts
and circumstances and an order for retrial should only be made where the interests of justice
require it;
( ii) the original trial was neither illegal nor defective and in the circumstances of the case it would
be unfair to require the appellant to stand a new trial.
Appeal allowed. Order for retrial set aside

Uganda v Yowasi Birungi (1973) 1 ULR 47

The accused a juvenile aged about 10 years was convicted on his own plea of guilty to theft of hen
and placed on probation. In referring the matter to the high court, the magistrate commented that
it was incumbent upon the prosecution to lead evidence that the accused had the capacity to know.
The DPP agreed with the magistrate but requested for a retrial.
Held
To order for a retrial would be to allow the prosecution to adduce further evidence which was or
ought to have been in their possession in the first instance and which they failed or neglected to
adduce, thus putting the accused twice in the same peril. Conviction quashed. Retrial not ordered.
Rule; “no retrial would be ordered where the prosecution would thereby be allowed to adduce
fresh evidence to the prejudice of the accused (to fill in the gaps).

R v Suke S/O Samwe and Ors (1947) 14 EACA 134.

The three appellants were jointly charged with murder. Before the conclusion of the 2nd appellant’s
defence, the judge proceeded to convict the first and third appellants but deferred sentence until
completion of the second appellant’s case. In due course he too was convicted.
Held;

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That the course adopted by the learned judge was irregular and such irregularity was not curable
under S. 346 Tanganyika CPC as it may have occasioned a failure of justice.
That the court of appeal will not order a new trial in order to allow the prosecution to fill a gap in
its case against an appellant which might have been filled at the first trial , but this was not the
case. Retrial ordered.

REVISION

Revision is a mandate of the High Court. It can act on its own motion by calling for the record of
the lower court as provided for under S.48 CPCA it states
The High Court may call for and examine the record of any criminal proceedings before
any magistrate’s court for the purpose of satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order recorded or passed, and as to the regularity of
any proceedings of the magistrate’s court.

It can be by petition by the affected party as provided for by S. 50(5) CPCA, which states that;
Any person aggrieved by any finding, sentence or order made or imposed by a magistrate’s
court may petition the High Court to exercise its powers of revision under this section; but
no such petition shall be entertained where the petitioner could have appealed against the
finding, sentence or order and has not appealed

It can also be by the magistrates courts themselves by forwarding the record to the high court with
comments, as provided for under S.49 CPCA
(1) Any magistrate may call for and examine the record of any criminal proceedings before
a magistrate’s court inferior to the court which he or she is empowered to hold, and situate
within the local limits of his or her jurisdiction, for the purpose of satisfying himself or
herself as to the correctness, legality or propriety of any finding, sentence or order recorded
or passed, and as to the regularity of any proceedings of the inferior magistrate’s court.

(2) If any magistrate acting under subsection (1) considers that any finding, sentence or
order of the inferior magistrate’s court is illegal or improper, or that any such proceedings
are irregular, he or she shall forward the record, with such remarks on it as he or she thinks
fit, to the High Court

.
Under S.221 (1) MCA a chief magistrate has supervisory powers over all magistrates courts
within the area of his or her jurisdiction and can also revise their records.
It states;
(2) Without prejudice to the generality of subsection (1), a chief magistrate may call for
and examine the record of any proceedings before a magistrate’s court inferior to the court
which he or she is empowered to hold and situate within the local limits of his or her
jurisdiction for the purpose of satisfying himself or herself as to the correctness, legality or
propriety of any finding, sentence, decision, judgment or order recorded or passed, and as
to the regularity of any proceedings of that magistrate’s court.

(3) If a chief magistrate acting under subsection (2) is of the opinion that any finding,
sentence, decision, judgment or order is illegal or improper, or that any proceedings are

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 irregular, he or she shall forward the record with such remarks therein as he or she thinks
fit to the High Court.

From the above provisions, the purpose of revision is for the High court to satisfying itself as to
the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as
to the regularity of any proceedings of the magistrate’s court.

Applications for revision will always be refused where there is a remedy to appeal. S. 50(5) CPCA,
which states that; Any person aggrieved by any finding, sentence or order made or imposed by a
magistrate’s court may petition the High Court to exercise its powers of revision under this section;
but no such petition shall be entertained where the petitioner could have appealed against the
finding, sentence or order and has not appealed

In exercising its revisionary powers, the high court can revise, or modify the decisions of the
inferior courts.

Under S.45(7), the proceedings of the High Court on revision shall be deemed to be an appeal.

R v Ajit Singh [1957] 1 EA 822

Whether aggrieved party can call for revision when right of appeal not exercised
Held
That the Supreme Court is not precluded from considering the correctness of a finding, sentence
or order merely because the facts of the matter have been brought to its notice by a party who has
or had a right of appeal; that the Supreme Court can, in its discretion, act sui motu even where the
matter has been brought to its notice by an aggrieved party who had a right of appeal

Uganda v Mukhalwe [1968] 1 EA 373

Revisional order – Whether chief magistrate can apply to High Court for revision of conviction
made by magistrate grade I
The accused, a magistrate grade III, was charged before the magistrate, grade I, in the magistrate’s
court at Jinja with corruption by a public officer. He was convicted by the magistrate grade I and
sentenced to a fine of Shs. 400/- with 6 months’ imprisonment in default. The chief magistrate,
Jinja, then brought this application for a revisional order of the High Court to quash the conviction

held;
The chief magistrate’s court is superior to the court of a magistrate grade I; and a chief
magistrate has power to apply to the High Court for a revisional order on the judgment of a
magistrate grade I under s. 340 (1) and (2) Criminal Procedure Code;

Kiwala v Uganda [1967] 1 EA 758

Whether High Court can revise its own order made on revision

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The appellant was convicted of stealing and was sentenced to a fine of Shs. 5,000/- or eighteen
months’ imprisonment in default. He appealed and applied for bail. On the hearing of the
application for bail a judge of the High Court reduced the sentence to six months. The State then
petitioned the High Court for a revision of the sentence and the Chief Justice made a revisional
order setting aside the sentence and substituting for it six years’ imprisonment without the option
(reported at [1967] E.A. 590). The appellant appealed to the Court of Appeal claiming that the
Chief Justice had no jurisdiction to make this order, the matter having already been dealt with on
revision.
Held –
(i) the order of the judge reducing the sentence was not made on appeal and could only have been
made in the exercise of his powers of revision under s. 341 of the Criminal Procedure Code;
( ii) the Chief Justice had no jurisdiction to proceed to a further revision of the sentence as the
matter had already been revised.
The court once it has exercised its power of revision is “functus officio” and has no authority to
subsequently revise its own order

Fatehali v Republic [1972] 1 EA 158

The appellant was convicted with another man of an exchange control offence and fined. On the
complaint of the Bank of Tanzania the High Court revised the sentence increasing the fine and
imposing a sentence of imprisonment on the appellant only. On appeal it was argued that as the
magistrate had made no error in sentencing the appellant the High Court had no power of revision,
Held –
A judge of the High Court has power, on his own motion, to call for and revise any proceedings in
the magistrate’s court, in whatever manner the proceedings came to his knowledge.
(i) the High Court has power to revise a sentence which is inadequate in view of the seriousness
of the offence;
( ii) the Court of Appeal has no jurisdiction to interfere with such revision;
(iv) the sentence could be increased beyond the magistrate’s jurisdiction.

Uganda v Polasi [1970] 1 EA 638

An accused was sentenced to an illegal term of imprisonment. He filed an appeal but withdrew it
and it was thereby deemed to have been dismissed. The sentence was subject to confirmation and
had not been confirmed.
Held – the court has power to revise the illegal sentence. Even if this court is functus officio,
it has jurisdiction under its revisional powers to correct the formidable error of the trial Magistrate,
which has clearly occasioned a miscarriage of justice.
Sentence reduced.

PROCEDURE ON APPEAL.

This is provided for under the following sections of the CPCA

28. Notice of appeal.

(1) Every appeal shall be commenced by a notice in writing which shall be signed by the appellant
or an advocate on his or her behalf, and shall be lodged with the registrar within fourteen days of
the date of judgment or order from which the appeal is preferred.

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(2) Every notice of appeal shall state shortly the effect of the judgment or order appealed against
and shall—
(a) contain a full and sufficient address at which any notices or documents connected with the
appeal may be served on the appellant or his or her advocate; and

(b) except where subsection (3) applies, state the general grounds upon which the appeal is
preferred.

(3) If the appellant or an advocate on his or her behalf indicates at the time of filing a notice of
appeal that he or she wishes to peruse the judgment or order appealed against before formulating
the grounds of appeal, he or she shall be provided with a copy of the judgment or order, free of
charge, and the grounds of appeal shall be lodged with the registrar within fourteen days of the
date of the service on him or her of the copy of the judgment or order.

(4) Where the appellant is represented by an advocate or the appeal is preferred by the Director of
Public Prosecutions, the grounds of appeal shall include particulars of the matters of law or of fact
in regard to which the court appealed from is alleged to have erred.

(5) Where an appellant who is not represented has not availed himself or herself of the provisions
of subsection (3), nothing in this section shall be read as preventing the appellate court from
permitting the appellant from raising any proper ground of appeal orally at the hearing of the
appeal.

(6) The appellate court may, for good cause shown, extend the periods mentioned in subsection
(1) or (3).

This section should be read together with the Court of Appeal Rules and Supreme Court Rules.

29. Fee on appeal.

Except insofar as it is waived or reduced, the fee prescribed for filing the notice of appeal shall be
paid at the time of lodging the notice and if the fee, if any, is not paid the notice shall not be
received.

31. Application for extension of time; abandonment of appeal.

(1) An application to extend the time for lodging a notice of appeal or grounds of appeal under
section 28(1) or (3) shall be made in writing to the registrar of the appellate court and shall be
supported by an affidavit specifying the grounds for the application.

(3) An appellant may, at any time before the hearing of the appeal, abandon his or her appeal by
giving notice in writing of the abandonment to the registrar of the appellate court, and upon the
notice being given the appeal shall be deemed to have been dismissed by the appellate court.

33. Notice of hearing.

(1) If the appellate court does not dismiss an appeal summarily, it shall cause notice to be given to
the appellant and to the respondent or to their advocates, if any, of the time and place at which the
appeal will be heard and shall furnish the respondent with a copy of the proceedings and of
the grounds of appeal.

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(2) At the hearing of an appeal the appellate court shall hear the appellant and the respondent or
their advocates

37. Appellant’s right to be present at appeal.

(1) An appellant who is in custody shall be entitled to be present at the hearing of the appeal
(2) The right of an appellant who is in custody to be present at the hearing of the appeal shall be
subject to his or her paying all expenses incidental to his or her transfer to and from the place
where the court sits for the determination of the appeal; except that the court may direct that the
appellant be brought before the court in any case where in the opinion of the court his or her
presence is advisable for the due determination of the appeal, in which case the expenses shall be
defrayed out of the Consolidated Fund

43. Abatement of appeal.

(1) Every appeal from a magistrate’s court, except an appeal from a sentence of a fine, shall finally
abate on the death of the appellant.

EVIDENCE LAW; key provisions

NB; Please note that the law of evidence has a bearing on criminal procedure. Therefore
acquaint yourself with the following areas of evidence.

Evidence by a child, accomplice, dying declaration, and single identifying witness also evidence
which require corroboration.

Evidence of children

CHILDREN OF TENDER YEARS –

S. 101 magistrates Courts Act.

Where the court considers that a child understands the nature of the oath, the child will be sworn.
This section is dealing with instances where a child is sworn…. The accused shall not be liable to
be convicted on such… Who is a child of tender years, this was defined in the case of Kibageni V.
R The Appellant here was convicted of murder, the conviction was based on the evidence of two
young boys who had been affirmed and they were between the ages of 9 and 14.

Fransisio Matovu v R [1961] 1 EA 260 (CAK)

The appellant unsuccessfully appealed against conviction for murdering his wife. The Court of
Appeal, however, commented upon two features of the trial. First, one of the witnesses was a boy
of eight years old who was permitted to give unsworn evidence but there was no finding on the
record as to the boy‘s intelligence or his understanding of the duty to tell the truth, nor was there
anything indicating a direction to the assessors or to the judge himself that the boy‘s evidence
required corroboration. Secondly, the judge reserved until the close of the prosecution case his
ruling on the admissibility of the appellant‘s statement to the police.

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Held – (i) a judge when confronted with a child of tender years called to give evidence, should
himself question the child to ascertain whether he or she understands the nature of an oath and, if
he does not allow the child to be sworn, he should record whether, in the opinion of the court, the
child is possessed of sufficient intelligence to justify the reception of the evidence and understands
the duty of telling the truth.
( ii) where the child is a prosecution witness, the judge should also direct the assessors and himself
that the child‘s evidence requires corroboration.
(iii) the proper stage at which to deliver a decision as to the admissibility of a statement is at the
close of the ―trial within a trial‖ before the jury or the assessors return to court.
Appeal dismissed.

Okeyo Kigeni v Republic [1965] 1 EA 188 (CAN)

The appellant was convicted of murder and the principal witness for the prosecution was a boy of
12 years who gave unsworn evidence to the effect that he had seen the appellant hitting the
deceased with a spear on the right side of his chest while the deceased was sitting and that he had
reported the matter to his mother. The mother gave evidence that on receiving the report of the
death she rushed to the scene of the crime and there she saw the deceased lying dead with a wound
on his body and the appellant standing nearby holding a blood-stained knife. The medical evidence
was that the deceased was probably sitting when the injury on his chest was inflicted and that it
was most likely that the injury was inflicted by a spear. The trial judge failed to direct himself or
the assessors on the necessity for the corroboration of the child‘s evidence and withdrew the
question of provocation from the assessors. It was common ground that a defence of provocation
was not specifically raised at the trial although there was evidence in which it was suggested that
there had been a fight between the appellant and the deceased, and also that the appellant was
alleged to have told one prosecution witness that he (appellant) had fought with the deceased. On
appeal it was submitted that the judge‘s failure to give any directions both to himself and the
assessors on the need for corroboration of the child‘s evidence was fatal to conviction of the
appellant and that the defect could not be cured.
Held –
(i) the court will, as a rule, quash a conviction where no direction on the necessity for corroboration
has been given in a case where corroboration is required as a matter of law or in practice, unless
where the court, after considering the whole evidence comes to the conclusion that there was such
ample and satisfactory evidence capable of amounting to corroboration that the court does not feel
there has been a miscarriage of justice;
( ii) having regard to all the evidence the court came to the conclusion that there was circumstantial
evidence to corroborate the child‘s evidence;

Kibangeny Arap Kolil v R

Held –

( ii) the failure of the trial judge to warn either himself or the assessors of the danger of convicting
upon the evidence of the two boys in view of the absence of corroboration and any admission by
the appellant was an additional ground for allowing the appeal.
Per curiam – ―There is no definition in the Oaths and Statutory Declarations Ordinance of the
expression ‗child of tender years‘ for the purpose of s. 19. But we take it to mean, in the absence
of special circumstances, any child of any age, or apparent age, of under fourteen years.‖

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Dictum of Lord Goddard, C.J., in R. v. Campbell, [1956] 2 All E.R. 272, that ―whether a child is
of tender years is a matter of the good sense of the court‖ . . . where there is no statutory definition
of the phrase, approved.

ACCOMPLICE EVIDENCE
This is governed by s.132 of the Act according to which, an accomplice shall be a competent
witness against an accused person and a conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice. By statutory provision, there is no requirement of
this, but courts have seen that it is evidence of the worst kind and must be corroborated.

If an accomplice usually gives evidence because of the hope or promise to be pardoned or treated
leniently by the prosecution.
DAVIS V. DPP is the landmark case on Accomplice Evidence. It classifies as accomplices the
following persons
(a) Parties to the offence in question;
(b) Handlers of stolen property in case of thieves from whom they receive being on trial for the
theft;
(c) Parties to another offence committed by the accused in respect of which evidence is admitted
under the similar fact evidence rule.

The rule with regard to corroboration was stated in this case by Lord Simmons as follows: Where
a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the
judge to warn the jury that although they may convict on this evidence, it is dangerous to do so
unless corroborated. Where the judge fails to warn the jury in accordance with this rule, the
conviction will be quashed even if there be ample corroboration of the evidence of the accomplice.

Why do we require corroboration for accomplice evidence?

The rationale is that the accomplice may have a purpose of his own to serve, he may give false
evidence against the accused out of spite or to exaggerate or even invent the accused role in the
crime in order to minimise his own culpability. .

Rwebangira v Republic [1975] 1 EA 94 (HCT)

The appellant was charged and convicted of stealing by servant. It was alleged that he converted
his employer‘s cheques and deposited them in the bank. There was no evidence that he had
received the proceeds of those cheques. Photocopies were admitted on a statement that the
originals had been lost.
Held –
(i) the loss of original documents must be proved and a finding of fact made by the trial court;
( ii) secondary evidence was not properly admitted in this case;
(iii) an appellate court cannot act on the uncorroborated evidence of an accomplice if the trial court
has not made a finding on his credibility;
As a matter of law the evidence of an accomplice is admissible but as a matter of practice it is now
established that accomplice evidence should not be acted upon in the absence of corroboration
unless the court has first addressed itself to the

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danger of acting on such evidence and is convinced as to the credibility of the witness

Davies v Director of Public Prosecutions

In July, 1953, a number of youths, including the appellant, attacked four other youths, including
B. During the attack a knife was used and subsequently B died of wounds. The appellant and five
others, including L, were indicted for the murder of B, but at the trial the Crown offered no
evidence against L and three others, and the jury returned a formal verdict of ―Not Guilty‖ of
murder in respect of them. At the trial of the appellant and the fifth youth the jury disagreed. Later
no evidence was offered against the fifth youth, and he was found ―Not Guilty‖ of murder. At the
second trial of the appellant L was called as a witness for the prosecution. In his summing-up the
trial judge did not warn the jury that L‘s evidence was, or should be treated as, the evidence of an
accomplice.

Held – In a criminal trial, where a person who was an accomplice gave evidence on behalf of the
prosecution, it was the duty of the judge to warn the jury that, although they might convict on his
evidence, it was dangerous to do so unless it was corroborated; this rule, although a rule of practice,
now had the force of a rule of law and where the judge failed to warn the jury in accordance with
it, the conviction would be quashed, even if, in fact, there was ample corroboration of the evidence
of the accomplice, unless the appellate court could the proviso to s 4(1) of the Criminal Appeal
Act, 1907; a person called as witness for the prosecution was to be treated as an accomplice if he
was particeps criminis in respect of the actual crime charged in the case of a felony; L, if he was
to be an accomplice at all, had to be an accomplice to the crime of
murder, and, as there was no evidence that L knew that any of his companions had a knife, he was
not an accomplice in a crime which consisted in its felonious use; and, therefore, it was not
necessary for the trial judge to give a warning to the jury.

Per curiam: In two cases persons falling strictly outside the ambit of the category of particeps
criminis have, in particular decisions, been held to be accomplices for the purpose of the rule: viz,
(i) receivers have been held to be accomplices of the thieves from whom they receive goods on a
trial of the latter for larceny (R v Jennings (1912) (17 Cr App Rep 242); R v Dixon (1925) (19 Cr
App Rep 36)); (ii) when X has been charged with a specific offence on a particular occasion, and
evidence is admissible, and has been admitted, of his having committed crimes crimes of the
identical type on other occasions, as proving system and intent and negativing accident: in such
cases the court has held that in relation to such other similar offences, if evidence of them were
given by parties to them, the evidence of such other parties should not be left to the jury without a
warning that it is dangerous to accept it without corroboration

Dying Declarations;
These must be corroborated as a matter of judicial prudence.
Migezo Mibinga v Uganda [1965] 1 EA 71 (CAK)
The appellant was convicted of manslaughter and the only evidence implicating the appellant
consisted of repeated statements made by the deceased to several persons soon after he was
discovered lying injured that it was the appellant who had beaten him. The Chief Justice considered
with care the circumstances under which the statements were made and looked for corroboration
which he found in the conduct of the appellant when accused by the deceased in the presence of
other persons of having beaten him. What happened was that the appellant was

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brought to where the deceased was lying, the deceased pointing at the appellant had said ―. . .
You are the person who had beaten me‖ and the appellant made no reply. On appeal,
Held –
(i) although there is no rule of law that to support a conviction there must be corroboration of the
statements made by the deceased person as to the cause of his death, it is unsafe to base a conviction
solely on them;
( ii) the probative force of a statement as to the cause of his death by a person since deceased is
not enhanced by its being made in the presence of the accused unless by his conduct, demeanour,
etc., the accused has acknowledged its truth and consequently the trial judge should expressly state
whether he is satisfied or not that there was such acknowledgement;
Terikabi v Uganda [1975] 1 EA 60 (CAK)
The appellant was convicted of murder on the basis of the dying declaration of the deceased. The
trial judge and assessors found corroboration in the subsequent conduct of the appellant. On appeal
it was contended that the dying declaration was inadmissible as it did not deal with the
circumstances of the attack and that there was no sufficient corroboration.
Held –
(i) a dying declaration need deal only with the cause of death or with the circumstances leading to
death;
( ii) there must be satisfactory corroboration of a dying declaration (Akumu v. R. (1) approved);
(iii) on the facts the court‘s finding on corroboration would be upheld.

CONFESSIONS; also refer to Festo Asenua

Tuwamoi v Uganda [1967] 1 EA 84 (CAK)

During the night of November 2, 1964, the appellant allegedly came to the home of the deceased,
and killed her with his spear. The deceased‘s daughter, who was awakened by the noise, found her
mother dying, and the judge accepted that the deceased made a dying declaration to her daughter
implicating the
accused. The accused made a statement in the nature of a confession, but next day, on November
4, 1964, made a further statement which was a complete denial of the crime. Only the first
statement was tendered by the prosecution in the lower court.
Held –
(i) the dying declaration should have been tested for reliability as to identification;

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( ii) a trial court should accept with caution a confession which has been retracted or repudiated or
both retracted and repudiated and must be fully satisfied that in all the circumstances of the case
that the confession is true;
(iii) if the accused makes more than one statement to the police, the prosecution should tender all
statements made by the accused. as a matter of practice or prudence the trial court should direct
itself that it is dangerous to act upon a statement which has been retracted in the absence of
corroboration in some material particular, but that the court might do so if it is fully satisfied in
the circumstances of the case that the confession must be true.

Single Identification witness; refer to Bogeres case.

For confessions; refer to Asenua’s case.

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