MOOT 2024: GROUP 1

BRIEF FACTS
It was alleged that on 12th October 2007, at around 8:00 pm two youth approached
a one Kamugisha George the complainant who is a boda boda rider to drop them at
Makerere University. They attacked him on the way, kicked him from the back,
stamped him on the chest and his whole body got paralyzed. They also stole his
motorcycle. He reported the case to police who carried out investigations and the
file was forwarded to court. It has come to Kamugisha’s notice that he is appearing
before the trial magistrate on the 29th day of August 2024.

LEGAL ISSUES
1. What are the possible offenses disclosed by the facts?
2. Whether the evidence is sufficient to support the case?

LAW APPLICABLE.
1. The Constitution of the Republic of Uganda 1995, as amended
2. The Penal Code Act Chapter 128
3. The Trial on Indictments Act Chapter 25
4. The Magistrates’ Court Act, Chapter 19
5. The Evidence Act Chapter 8
6. The Police Act Chapter 324
7. Case Law
8. Any other relevant authorities

ISSUE ONE: WHAT ARE THE POSSIBLE OFFENCES DISCLOSED BY

THE FACTS?
Section 1 of the Penal Code Act Cap. 128 defines an offence to mean an act,
attempt or omission punishable by law.
Article 28 (7) of the Constitution of the Republic of Uganda, 1995 provides that
no person shall be charged with or convicted of an offence which is founded on an
act or omission that did not constitute a criminal offence.
Article 28 (12) of the Constitution of the Republic of Uganda, 1995 provides
that except for contempt of court, no person shall be convicted of a criminal
offence unless the offence is defined and penalty prescribed by law.
Basing on the facts, the offences disclosed are;
a) Grievous Bodily Harm C/S to Section 219 of the Penal Code Act Cap. 128

Under Section 219 of the Penal Code Act Cap. 128 it provides that any person
who unlawfully does grievous harm to another commits a felony and is liable, on
conviction, to imprisonment for a term of five years.
Under Section 1 of the Penal Code Act Cap. 128, Grievous harm means any
harm which amounts to maim or dangerous harm, or seriously or permanently
injures health or which is likely so to injure health, or which extends to permanent
disfigurement, or to any permanent or serious injury to any external or internal
organ, membrane or sense.

b) Aggravated Robbery C/S to Section 266 and 267 (2) of the Penal Code Act
Cap. 128

Under Section 266 of the Penal Code Act Cap. 128 provides that any person who
steals anything and at or immediately before or immediately after the time of
stealing it uses or threatens to use actual violence to any person or property in
order to obtain or retain the thing stolen or to prevent or overcome resistance to its
being stolen or retained commits the felony termed robbery.
Under Section 267 (2) of the Penal Code Act Cap. 128 it provides that
notwithstanding subsection (1) (b), where at the time of or immediately before or
immediately after the time of the robbery, an offender is in possession of a deadly
weapon, or causes death or grievous harm to any person, the offender or any
other person jointly concerned in committing the robbery shall, on conviction by
the High Court, be liable to suffer death.
Section 267 (1) of the Penal Code Act Cap. 128 provides for the punishment for
robbery and it provides that any person who commits the felony of robbery is
liable—
a) On conviction by a magistrate’s court, to imprisonment for ten years;
b) On conviction by the High Court, to imprisonment for life.
Section 267 (4) the Penal Code Act Cap. 128 provides that notwithstanding
Section 125 of the Trial on Indictments Act, where a person is convicted of
the felony of robbery the court shall, unless the offender is sentenced to death,
order the person convicted to pay such sum by way of compensation to
any person to the prejudice of whom the robbery was committed, as in the opinion
of the court is just having regard to the injury or loss suffered by such person, and
any such order shall be deemed to be a decree and may be executed in the manner
provided by the Civil Procedure Act.

ISSUE TWO: WHETHER THE EVIDENCE IS ENOUGH TO SUSTAIN

THE OFFENCES.
In criminal proceedings, Article 28 (3) (a) of the Constitution of Uganda 1995,
states that every person charged with an offence is presumed innocent until
proven guilty or until that person pleads guilty.
Section 102 of the Evidence Act Cap. 8 states that the burden of proof in a suit
or proceeding lies on that person who would fail if no evidence at all were given
on either side. In Criminal Proceedings, the burden of proof always lies on the
prosecution to prove the accused’s guilt beyond reasonable doubt.
In the case of Woolmington vs DPP [1935] AC 462, Lord Viscount stated that it
is the duty of the prosecution to prove the accused’s guilt subject to the defense of
insanity and statutory exception. If at the end of the whole case, there is a
reasonable doubt created by the evidence given by the prosecution, the accused is
entitled to an acquittal.
The criminal standard of proof is beyond reasonable doubt as observed in Miller
vs. Minister of pensions [1947] 2 ALLER 372 where Lord Denning stated that
proof beyond reasonable doubt does not mean a double of doubt. The law
would fail to protect the community if it admitted forceful possibilities to defect
the cause of justice.
In Uganda V Oloya S/O Olovari (1977) HCB 54 court stated that the accused
person must be convicted on the strength of the prosecution rather than the
weakness of the defense.
In Uganda v Nabongho & Anor (Criminal Session Case-2011/44) [2013]
Justice Flavia Senoga Anglin stated that even where the accused sets up a
defence, they do not thereby assume the burden of proving it. It is up to the
prosecution to disprove the defence by adducing evidence to show that
nevertheless the offence was committed by the accused person(s)… It is the duty
of the court to evaluate both the evidence of the prosecution and that of the
defence and determine whether the burden and standard of proof have been
discharged by the prosecution.
Section 101 of the Evidence Act Cap. 8 provides that the burden of proof is on
the person who desires court to give judgment as to the legal right or liability that
he or she that asserts must prove that the facts exist.

EVALUATION OF EVIDENCE
a. GRIEVOUS BODILY HARM

Under Section 219 of the Penal Code Act Cap. 128 it provides that any person
who unlawfully does grievous harm to another commits a felony and is liable to
imprisonment for seven years.
Under Section 1 of the Penal Code Act Cap. 128, Grievous harm means any
harm which amounts to maim or dangerous harm, or seriously or permanently
injures health or which is likely so to injure health, or which extends to permanent
disfigurement, or to any permanent or serious injury to any external or internal
organ, membrane or sense.
In Uganda v Pampara (1991) HCB 16; the accused, a teacher subjected the
complainant who was a student to corporal punishment. The Medical doctor who
examined the complainant found injuries of the eye. The court held that the actions
of the accused amounted to grievous harm taking into account the part of the body
that was injured i.e. the organ that is responsible for sight.
It should be noted that the resulting injury to constitute grievous harm or not is a
question of fact. The underlying point to note is that courts give serious thought as
to the nature of the injury presented by the available evidence.
Section 219 of the Penal Code Act Cap. 128 does not specifically mention or
require that the accused must maliciously or intentionally cause grievous harm.
The section only requires the accused to unlawfully cause grievous harm.
In the case of Gitau and Another v Republic [1967] 1 EA 449 the appellants
were convicted of unlawful doing of grievous harm. One of the grounds of appeal
was that there was no intent to cause grievous harm. Court noted that the word
“unlawfully” should be given its ordinary meaning, and that meaning without any
doubt covers reckless and grossly negligent acts.
In Uganda Vs. Malembe Brodus (Criminal Division) HCT-00-CR-CF-0032-
2023 it was held that;
Doing Grievous Harm means severe physical injury intentionally inflicted on the
complainant’s body. The harm must be serious, fundamentally affecting the health
of the complainant’s body. Thus, for the prosecution to secure a conviction against
an accused person based on the charge of Doing Grievous Harm, they must prove
that:
1. The complainant was assaulted;
2. As a result of that Assault, the complainant suffered very serious harm to his
or her body;
3. That the harm fundamentally affected the health of the complainant.
4. The accused is responsible for the harm.

My Lord, it should be noted that in the instant case at hand, on 12 th October

2007, at around 8:00 pm two youth approached a one Kamugisha George the
complainant who is a boda boda rider to drop them at Makerere University.
They attacked him on the way, kicked him from the back, stamped him on the
chest and his whole body got paralyzed.
Henceforth, as per the ingredients necessary to sustain and secure a
conviction against an accused person based on the charge of doing Grievous
Bodily Harm as was set out in Uganda Vs. Malembe Brodus supra; the joint
accused assaulted Kamugisha George, the complainant on the 12 th day of
October, 2007 at 8:00 pm by attacking, kicking him from the back and
stamping him on the chest; as a result of this assault, Kamugisha’s whole body
got paralyzed; this harm in turn has fundamentally affected the Kamugisha’s
health as he can no longer continue his activities of being a boda boda due to
his physical impairment occasioned by the two co-accused and thus he has lost
his livelihood; and lastly but not least; it is the co-accused that are responsible
for this harm.
The participation of the accused is another essential ingredient required for proving
that it is the co-accused that assaulted the victim thereby causing Grievous Bodily
Harm. This ingredient is satisfied by adducing evidence, direct or circumstantial,
placing the co-accused at the scene of the crime as the performers of the offence.
The law governing corroboration was stated in the land mark case of R V
Baskerville (1916)2 KB 658 where Lord Reading CJ Stated that:
 “We hold that evidence in corroboration must be independent testimony
which affects the accused by connecting or tending to connect him with the
crime. In other words, it must be evidence which implicates him that is
which confirms in some material particular not only the evidence that the
crime has been committed, but also the prisoner committed it”
In Uganda v Ngaswireki and Anor (Criminal Appeal-2017/) [2018] Justice
Margaret Mutonyi While basing on Section 155 of the Evidence Act which defines
what is sufficient to corroborate evidence held that;
“In order to corroborate the testimony of a witness, any former statement by
such witness relating to the same fact at or about the time when the fact took
place or before any authority legally competent to investigate the fact, may
be proved”.
As earlier stated; it is no doubt that the two co-accused are responsible for the
harm done to Kamugisha.
My Lord, we pray that the co-accused are hereby found guilty of causing
Grievous Bodily Harm C/S to Section 219 of the Penal Code Act Cap. 128 and
we further pray that each of them is imprisoned for five years.

b. AGGRAVATED ROBBERY

In Uganda v Opio (Criminal Case No. 0112 of 2014) [2017] the Hon. Justice
Mubiru held that;
“According to section 87 of The Trial on Indictments Act, 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. Theft c/s 254 and 261 of The Penal Code
Act is minor and cognate to the offence of Aggravated Robbery c/s 285 and
286 (2).”
My Lord, the prosecution would wish to proceed and prefer the charge of
Aggravated Robbery C/S to Section 266 and 267 (2) of the Penal Code Act
Cap. 128 against the co-accused as it is superior to the offense of theft which is
C/S to 237 of the Penal Code Act Cap. 128.
Under Section 266 of the Penal Code Act Cap. 128 provides that any person who
steals anything and at or immediately before or immediately after the time of
stealing it uses or threatens to use actual violence to any person or property in
order to obtain or retain the thing stolen or to prevent or overcome resistance to its
being stolen or retained commits the felony termed robbery.
Under Section 267 (2) of the Penal Code Act Cap. 128 it provides that
notwithstanding subsection (1) (b), where at the time of or immediately before or
immediately after the time of the robbery, an offender is in possession of a deadly
weapon, or causes death or grievous harm to any person, the offender or any
other person jointly concerned in committing the robbery shall, on conviction by
the High Court, be liable to suffer death.
Section 267 (1) of the Penal Code Act Cap. 128 provides for the punishment for
robbery and it provides that any person who commits the felony of robbery is
liable—
a) On conviction by a magistrate’s court, to imprisonment for ten years;
b) On conviction by the High Court, to imprisonment for life.

Section 267 (4) the Penal Code Act Cap. 128 provides that notwithstanding
Section 125 of the Trial on Indictments Act, where a person is convicted of
the felony of robbery the court shall, unless the offender is sentenced to death,
order the person convicted to pay such sum by way of compensation to
any person to the prejudice of whom the robbery was committed, as in the opinion
of the court is just having regard to the injury or loss suffered by such person, and
any such order shall be deemed to be a decree and may be executed in the manner
provided by the Civil Procedure Act.
In Uganda Vs Ssemaganda Muhamad Erias HCT-06-CR-SC-0072 OF 2013 it
was held that the ingredients for aggravated robbery are;
1. Theft of property,
2. Use or threat to use a deadly weapon during immediately before or
immediately after the theft or robbery or causing death or grievous harm,
3. Participation of the accused.

THEFT OF PROPERTY
In Uganda v Opio supra it was held that the ingredients for the offence of theft
are;
1. Taking of property belonging to another
In Kifuko V. R ULR 273; The accused who was working in a post office took a
parcel from the foreign parcels rack and put them in the locker parcels rack. The
issue was whether he was guilty of theft. His defence was that he did not take the
parcel into his possession and was not guilty of theft. It was held that once it is
proved that an accused removed an article from one place and placed in another
place with the intention of depriving the owner permanently from it is guilty of
theft. The issue is whether the item has left the place in which it was in before. If
the answer is yes, the accused will be said to have taken the property.
2. Unlawful intent to permanently deprive ownership

In Kizito Ronald V. Uganda HC Criminal Appeal No. 0014 Of 2008; The trial
Magistrate convicted the appellant of theft of a sum of shillings 5,000,000/=
contrary to sections 254(1) and 261 of the Penal Code Act (Cap. 120). He
sentenced the appellant to pay a fine of shillings 500,000/= or in default thereof to
serve a term of 18 months in prison. In addition, the said Magistrate made an order
under section 197 of the Magistrates Courts Act (Cap. 16) requiring the appellant
to pay a sum of shillings 4,200,000/= as compensation to the complainant. The
above decision, sentence and order aggrieved the appellant. Therefore, he appealed
against them and the conviction was upheld.
3. Participation of the accused

In Uganda v Korani (Criminal Sessions Case No. 0001 of 2016) the Hon. Justice
Stephen Mubiru held that;
“Lastly, the prosecution had to prove that it is the accused who committed the
unlawful act. This ingredient is satisfied by adducing evidence, direct or
circumstantial, placing the accused at the scene of crime not as a mere
spectator but as the perpetrator of the offence.”
4. The thing must be capable of being stolen
It is not that everything can be stolen. Section 236 of the Penal Code Act Cap.
128 contains a list of things capable of being stolen.
In Kyewawuna V. Uganda (1974) EA 293; the accused was working in the Bank
of Uganda. The government had just changed a new currency for old ones. He
stole some of the old currency and he was charged with theft. It was held that while
the old currencies were owned, they were useless to the bank. They were of no
value to the bank.
My Lord, for theft to be proved there must be asportation (carrying away) of a
person’s goods without their consent as was held in Sula Kasiira Vs Uganda
Criminal APPEAL No.20 of 1993. The facts of this case are that on the 12 th
day of October, 2007, at around 8:00 pm two youth approached a one
Kamugisha George the complainant who is a boda boda rider to drop them at
Makerere University. They attacked him on the way, kicked him from the
back, stamped him on the chest and his whole body got paralyzed. They also
stole his motorcycle. According to Section 236 of the Penal Code Act Cap. 128
a motorcycle is something that is capable of being stolen. There was taking of
property belonging to another (Kamugisha); there was unlawful intent to
permanently deprive Kamugisha of his motorcycle by the co-accused; and it
was the co-accused that took the victim’s motorcycle.

USE OR THREAT TO USE A DEADLY WEAPON DURING

IMMEDIATELY BEFORE OR IMMEDIATELY AFTER THE THEFT OR
ROBBERY OR CAUSING DEATH OR GRIEVOUS HARM
Section 267 (2) of the Penal Code Act Cap. 128 it provides that notwithstanding
subsection (1) (b), where at the time of or immediately before or immediately after
the time of the robbery, an offender is in possession of a deadly weapon, or causes
death or grievous harm to any person, the offender or any other person jointly
concerned in committing the robbery shall, on conviction by the High Court, be
liable to suffer death.
Section 1 of the Penal Code Act Cap. 128, as earlier stated above defines
Grievous harm as any harm which amounts to maim or dangerous harm, or
seriously or permanently injures health or which is likely so to injure health, or
which extends to permanent disfigurement, or to any permanent or serious injury to
any external or internal organ, membrane or sense.
My Lord, the two co-accused attacked the victim as he was taking them to
Makerere University, kicked him from the back, stamped him on the chest
and his whole body got paralyzed. They also stole his motorcycle. The fact
that Kamugisha’s whole body got paralyzed as per the assault of the co-
accused constitutes Grievous Bodily Harm as per Section 267 (2) of the Penal
Code Act Cap. 128.
PARTICIPATION OF THE ACCUSED.
In Uganda V Wanyama Ivan and 3 Others (351 of 2020) the Hon. Justice Isaac
Muwaata held that;
“In determining the issue of participation, the court must examine all
evidence closely, bearing in mind the established general rule that an
accused person does not have to prove his innocence. And that by putting
forward a defense like alibi or any other, an accused does not thereby
assume the burden of proving the defense except in a few exceptional cases
provided for by law.”
It is up to the prosecution to disprove the defense of the accused persons by
adducing evidence that shows that, despite the defense, the offence was committed
and was committed by the accused persons as was held in Sekitoleko Vs Uganda
[1967] EA 531.
My Lord, the facts of this case are that on the 12th day of October, 2007, at
around 8:00 pm two youth approached a one Kamugisha George the
complainant who is a boda boda rider to drop them at Makerere University.
They attacked him on the way, kicked him from the back, stamped him on the
chest and his whole body got paralyzed. They also stole his motorcycle. As
sated above; it is no doubt that the two co-accused are responsible for the
harm done to Kamugisha.

IDENTIFICATION OF THE ACCUSED

This being evidence of visual identification which took place at 8:00 pm, the
question to be determined is whether there are any identifying witnesses who are
able to recognize the accused. In circumstances of this nature, court is required to
first warn itself of the likely dangers of acting on such evidence and only do so
after being satisfied that correct identification was made which is free of error or
mistake.
In the case of Abdala Nabudele and 2 others V Uganda [1975] HCB 77, Court
considers;
1. Whether the witnesses were familiar with the accused,
2. Whether there was light to aid the visual identification,
 3. The length of time taken by the witness to observe and identify the accused
and;
4. The proximity of the witness to the accused at the time of observing the
accused.

My Lord, there is no one who can corroborate the victim’s claim against the
co-accused except the victim himself and so we pray that the victim’s
testimony is tendered in to back up the fact that he was assaulted by the co-
accused.

CONCLUSION
My Lord, the prosecution would wish to rest its case and we pray that the co-
accused are found guilty of causing Grievous Bodily Harm C/S to Section 219 of
the Penal Code Act Cap. 128 and Aggravated Robbery C/S to Section 266 and
267 (2) of the Penal Code Act Cap. 128. We also pray that the co-accused are
handed the maximum sentence of the life imprisonment as per Section 267 (1) of
the Penal Code Act Cap. 128 considering the gravity of their actions and as such
they should be used as an example to society to make anyone who wishes to
engage such heinous acts to refrain from doing so.
POSSIBLE DEFENSES TO THE CHARGES
Article 28 (3) (e) of the Constitution of the Republic of Uganda 1995 states that
“every person who is charged with a criminal offence shall in the case of any
offence which carries a sentence of death or imprisonment for life be entitled to
legal representation at the expense of the State especially for cases in the High
Court, Appeal Court and the Supreme Court and those that call for life
imprisonment in Magistrates' Courts which extends through all the stages of post-
conviction like appeal, revision, and review of decisions court decisions.
Section 158 of the Magistrates’ Court Act, Cap 19 provides for any person
accused of an offence before a Magistrates’ Court to be defended by an advocate
as of right and for those cases which attract life imprisonment the state ought to
provide an advocate at its cost under the state brief system.
Section 55 The Trial on Indictment Act, Cap. 25 states: “a person accused of an
offence before the High Court should be defended by an advocate, at his or her
own expense as of right. Nonetheless, because the majority of the cases tried in
High Court are of a capital nature, and more than likely lead to life imprisonment
or the death penalty, this means that all accused persons appearing in the High
Court must be defended by an advocate either of their choice at their own expense
or by one assigned to them by the state at the expense of the state.”
Section 2 of The Poor Persons Defence Act, Cap 22 provides that: “where it
appears for any reason that it is desirable in the interests of justice, that a prisoner
should have legal assistance in the preparation and conduct of his or her defense, at
his or her trial and that the means of the prisoner are insufficient to enable him or
her to obtain such aid. Upon committal of the prisoner for trial, or at any time after
reading the summary of the case submitted at the committal proceedings, a
certifying officer may certify that the prisoner ought to have the legal help, and if
an indictment is filed against the prisoner and it is possible to procure an advocate
the prisoner is entitled to have an advocate assigned to him

Section 7 of The Poor Persons Defence Act, Cap 22 provides that the
remuneration of any advocate assigned is payable from the monies provided by
Parliament and is determined by the trial Judge. In determining the amount of
remuneration the trial Judge is guided by the complexity of the case and the
duration of the trial proceedings.
Under the Advocates Act, Cap. 295 and its Regulations, the Uganda Law Council
is mandated to exercise general supervision and control over the provision of legal
assistance and advice to needy persons. To this end, the Law Council developed
The Advocates (Legal Relief Services to Indigent Persons) Regulations, No. 12
of 2007 to provide for rules governing the provision of legal assistance this is an
endorsement of state briefs. In 2002, the Advocates Act was amended to provide
for mandatory pro bono legal services to indigent persons by all advocates in
Uganda. In order to put the above provision into effect, the Law Council developed
The Advocates (Pro bono Services to Indigent Persons) Regulations No. 39 of
2009. The Regulations provide for the requirement of all advocates in Uganda to
give pro bono services for at least 40 hours in a year or pay money in lieu thereof.
It specifies the nature of pro bono services and the area of law in relation to which
professional services can be rendered. It empowers the Law Council to establish a
pro bono scheme and sets up a Board of Trustee to manage the same. Where the
board determines that an advocate has neither offered professional services for the
required hours nor paid money in lieu thereof, the practising certificate of that
advocate would not be renewed. The amendment of the Advocates Act in 2002
also introduced a new provision to allow any person undergoing instructions for
the acquisition of professional skill or experience for the purpose of enrollment to
have a right of audience in court provided he/she appears with an advocate
possessing a valid practicing certificate.
Henceforth, below are the possible offenses available to the accused;
1. ALIBI: The accused may claim that they were not present at the scene of the
crime on the alleged date and time.

An alibi defense is showing evidence that an accused was not at the scene when the
crime occurred. Simply put, under criminal law, an alibi is a legal defense strategy
where a defendant provides evidence, they couldn't have committed the crime
because they were somewhere else when the crime occurred.
In Sikuku Livingstone Vs. Uganda (SC) Criminal Appeal No: 33 of 2000 it was
held that;
“It is trite that an accused person who raises the defence of alibi does not
thereby assume any burden to prove it. The burden remains on the
prosecution to disprove it.”
In Suleiman Katusabe v Uganda (SC) Criminal Appeal No. 7 of 1991 court
held inter alia;
“It is the duty of the trial Judge both when he sums up to the assessors and
when he gives judgment to look at the evidence as a whole. It is
fundamentally wrong to evaluate the case for the prosecution in isolation a
n d then consider whether or not the case for the defence rebuts or casts
doubt on it. Indeed, no single piece of evidence should be weighed except in
relation to all the rest of the evidence.”
Furthermore, in Sikuku Livingstone Vs. Uganda SC Criminal Appeal No: 33 of
2000 while citing the case of Bogere Moses & Another v Uganda (SC) Criminal
Appeal No. 1of 1997 (unreported) it was held inter alia that:-
“What then amounts to putting an accused person at the scene of crime? We
think that the expression must mean proof to the required standard that the
accused was at the scene of crime at the material time. To hold that such
proof has been achieved the court must not base itself on the isolated
evaluation of the prosecution evidence alone, but must base itself upon the
evaluation of the evidence as a whole. Where the prosecution adduces
evidence showing that the accused was at the scene of crime, and 8 the
defence not only denies it but also adduces evidence showing that the
accused person was elsewhere at the material time, it is incumbent on the
court to evaluate both versions judicially and give reasons why one and not
the other version is accepted. It is a misdirection to accept the one version a
n d then hold that because of that acceptance per se the other version is
unsustainable.”

2. SELF-DEFENSE: The accused may claim that they acted in self-defense,

although this would require them to prove that they were under imminent threat
of harm from Kamugisha.

Black’s Law Dictionary, 9th Edition at Page 1481defines self defence as; “The
use of force to protect oneself, one's family or one's property from a real or
threatened attack: Generally, a person is justified in using a reasonable amount of
force in self-defence, if he or she reasonably believes that the danger of bodily
harm is imminent and that force is necessary to avoid this danger”.
According to Section 15 of the Penal Code Act Cap. 128 subject to any express
provisions in the Penal Code or any other law in force in Uganda, criminal
responsibility for the use of force in the defence of person and property is to be
determined according to the principles of English law.
In Uganda v Nakirya & Anor (Criminal Session Case No. 06-cr-sc-0188 of
2013) the Hon. Justice Margaret Tibulya J. hed inter alia that;
It is the law that even if an accused does not raise a defence but there is
evidence of it, the court has a duty to avail it to him as was the case in
Mancini Vs D.P.P (1942) A.C 1, which was followed with approval
in Didasi Kebengi Vs Uganda (1978) HCB 216.

In Kebengi (supra) it was held that it is the duty of the court to deal with all
the alternative defences, if any, if they emerge from all the evidence as fit for
consideration notwithstanding that they are not put forward or raised by the
defense, for every man on trial for murder is entitled to have the issue of
manslaughter left to the assessors if there is evidence on which such a
verdict can be given, to deprive him of this constitutes a grave miscarriage
of justice”.

In Uganda v Kamyuka (HCT-00-CR-SC-0970-2016) it was held that;

The Law on self-defence contains four ingredients;
1. There must be an attack on the Accused person or a close relative.
2. The Accused must, as a result have reasonably believed that he was in
imminent danger of death or serious bodily harm.
3. The Accused must have believed it necessary to use force to repel the attack.
4. The force used by the Accused must be such force as the Accused believed
on reasonable grounds to have been necessary to prevent or resist the attack.
In determining whether the extent of the force used by Accused was
reasonably necessary, regard must be had to all the circumstances of the
case. The legal position settled is that a person attacked in such
circumstances did reasonably believes his life to be in imminent danger is
entitled to use force even deadly force, to repel the attack depending on the
circumstances.
This defence can be raised in respect of any crime with which the accused is
charged, and if successful will result in the accused being completely acquitted.
However, if the accused uses excessive force this indicates that he acted
unreasonably in the circumstances. There will therefore be no valid defence, and
the accused will be liable for the crime.
REASONABLE FORCE
The general principle is that the law allows only reasonable force to be used in the
circumstances and, what is reasonable is to be judged in the light of the
circumstances as the accused believed them to be (whether reasonably or not).
In assessing whether the accused had used only reasonable force, Lord Morris in
Palmer v R [1971] AC 814; felt that a jury should be directed to look at the
particular facts and circumstances of the case. His Lordship made the following
points:

a. A person who is being attacked should not be expected to "weigh to a nicety

the exact measure of his necessary defensive action".
b. If the jury thought that in the heat of the moment the accused did what he
honestly and instinctively thought was necessary then that would be strong
evidence that only reasonable defensive action had been taken.
c. A jury will be told that the defence of self-defence will only fail if the
prosecution shows beyond reasonable doubt that what the accused did was
not by way of self-defence.
In considering the defense of self-defense under Section 15 of the Penal Code Act
Cap. 128, the principles of English Law apply. These are that a person who is
violently or feloniously attacked can repel force by force and if in so doing he kills
the attacker that killing is justifiable, provided there is reasonable necessity for
killing or an honest belief based on reasonable grounds that it was necessary and
the violence attempted by or apprehended from the attack is really serious. In such
cases there appears to be no duty in law to retreat.

In Uganda v Nakirya & Anor supra the Hon. Justice Margaret Tibulya J. held
inter alia that;
“In other cases of self-defense where no violent felony is attempted, a
person is entitled to reasonable force against an assault, and if he is
reasonably apprehensive of serious injury, provided he does all that is
necessary in the circumstances to retreat or avoid a fight or disengage from
 the fight, he may use such force, deadly force included, in the
circumstances.”

In Palmer Vs R (1971) 1 ALL E.R 1077 it was held that the question of whether a
person acted in self-defense or not is one of fact and each case must be considered
and judged on its facts and surrounding circumstances.
For excessive use of force not being a defence at all, see R v Clegg [1995] 1 All
ER 334 (fourth bullet fired at a car which did not stop at a checkpoint was not fired
in self-defence).
The issue of a mistake as to the amount of force necessary was considered by the
Court of Appeal in R v Scarlett:
In R v Scarlett (1994) Crim LR 288; The accused sought to eject a drunken
person from his premises. The drunken person made it clear that he was not going
to leave voluntarily. The accused believed that the deceased was about to strike
him and so he put his arms around the drunk person's body, pinning his arms to his
sides. He took him outside and placed him against the wall of the lobby. The
drunken person fell backwards down a flight of five steps, struck his head and
died. The jury were directed that if they were satisfied that the accused had used
more force than was necessary in the bar and that had caused the deceased to fall
and strike his head he was guilty of manslaughter. The accused was convicted and
appealed on the ground that he honestly (albeit unreasonably) believed the amount
of force he had used to evict the drunken man from his premises was necessary. In
allowing the appeal, Beldam LJ gave the following direction for juries:
“They ought not to convict him unless they are satisfied that the degree of
force used was plainly more than was called for by the circumstances as he
believed them to be and, provided he believed the circumstances called for
the degree of force used, he was not to be convicted even if his belief was
unreasonable.”
Note that in R v Owino [1995] Crim LR 743; the Court of Appeal firmly denied
that Scarlett is to be interpreted as permitting a subjective test in examining
whether force used in self-defence is reasonably proportionate. The true rule is that
a person may use such force as is (objectively) reasonable in the circumstances as
he (subjectively) believes them to be.
3. LACK OF EVIDENCE: The accused may argue that there is insufficient
evidence to prove their guilt beyond a reasonable doubt.

THE COMPLAINANT SHOULD:

a. Kamugisha George should ensure that he has all necessary medical evidence
and documentation to support his claim of physical harm.
b. He should also gather any witness statements or other evidence that may
support his case.
c. He should be prepared to testify in court and provide a clear account of the
events of 12th day of October, 2007.
d. He may want to consider seeking the assistance of a lawyer (private
prosecutor) to represent him in court and ensure that his rights are protected.
The Respective Counsel should;
Interview of the clients
This is intended to giving us the facts as regard the case. The date of arrest and
commission of offence in order to ascertain whether the 48-hour rule has been
violated, to carry out due diligence as to the nature of the offence, to ascertain
whether of any statement has been recorded and by whom, if there are witnesses
available. This is all to assess the strength of the evidence on the file. The rationale
is that an advocate can’t be in the matter which he or she doesn’t know the facts
that of constitute the offence. This is discussed in Leonard Muyingo v Uganda
where court stated that the right to representation by counsel must also be
exercised like other rights in the Constitution. There is a duty on the accused and
the counsel who has been instructed to exercise due diligence.

Peruse the police file

This is done for preparation of court session. In the due course, the advocate is
expected to evaluate the evidence available on the police file in lieu of the
ingredients of the charge preferred against the accused person in support of the
ingredients of the offence. The advocate shall then inform the accused the merits
and weaknesses of his case and the likelihood of success.

Rights of the accused

The accused will be informed of his rights for example; unconditional release if he
has been in custody for more than 48 hours, police bond if strong evidence has not
been discovered against him and the right to bail which can be sought at the first to
stay home as he awaits trial. He should also be informed that he is innocent until
proven guilty.

The Defense Counsel should write a letter to the Resident State Attorney
This is done intending to request for the accused person’s file for the purpose of
pre- trial disclosure. Pretrial disclosure is a right to every accused. Court in the
constitutional court on a reference of Soon Yeon Kong Kim and Kwang Mao v
A.G Constitutional Reference Number 6 of 2007 where it agreed with the above
case to the effect that the right to a fair hearing contains in it the right to a pre-trial
disclosure of material statements and exhibits. Courts cannot approve of trial by
ambush. The right to a fair hearing envisages equality between contestants in
litigation.
However, in Col. (Rtd) Dr Kiiza Besigye and 22 others v A.G Constitutional
Petition Number 12 of 2006 court stated that this right to disclosure may not be
absolute. Such disclosure is subject to some limitation to be established by
evidence by the state on grounds of state secrets; protection of witnesses from
intimidation, protection of identity of informers from disclosure or that due to
simplicity of the case, disclosure is not justified for purposes of a fair trial.

ANALYSIS OF THE CASE:

The case involves an alleged assault and theft that occurred on 12th October 2007.
The complainant, Kamugisha George, reported the incident to the police, who
carried out investigations and forwarded the file to court. The trial is scheduled for
29th August 2024, approximately 17 years after the alleged incident.
Article 28 (1) of the Constitution of the Republic of Uganda 1995 provides that
an accused person has the right to a fair and speedy trial.

CHALLENGES FACING THE PROSECUTION:

a. Delay in Trial: The significant delay in the trial process may prejudice the
prosecution's case. Witnesses may have forgotten crucial details, and
evidence may have been lost or destroyed;

b. Lack of Medical Evidence: The prosecution may struggle to prove the

extent of Kamugisha's injuries without medical evidence. This could weaken
their case and make it challenging to secure a conviction.

c. Reliability of Witness Testimony: The prosecution will need to rely on

witness testimony, which may be unreliable given the passage of time.

AVAILABLE COURSES OF ACTION FOR THE PROSECUTION:

a. Call Expert Witnesses: The prosecution may call expert witnesses, such as
medical professionals, to testify about the extent of Kamugisha's injuries and
the likely impact of the alleged assault.

b. Use Documentary Evidence: The prosecution can use documentary

evidence, such as police reports, medical records, and witness statements, to
build their case.

c. Ask for an Adjournment: If the prosecution is not ready to proceed with

the trial, they may apply for an adjournment to gather more evidence or
prepare their case.

CHALLENGES FACING THE DEFENCE:

a. Alibi Defence: The defence may struggle to establish an alibi for the
accused, given the passage of time.
 b. Lack of Evidence: The defence may not have access to evidence that could
support their case, such as witness statements or documentary evidence.

c. Prosecution’s Case: The defence will need to respond to the prosecution's

case, which may be challenging if the prosecution presents strong evidence.

AVAILABLE COURSES OF ACTION FOR THE DEFENCE:

a. Raise an Alibi Defence: The defence can raise an alibi defence, arguing that
the accused was not present at the scene of the crime on the alleged date and
time.

b. Challenge Prosecution Evidence: The defence can challenge the

prosecution's evidence, arguing that it is unreliable or insufficient to prove
the accused's guilt.

c. Apply for a Dismissal: If the defence believes that the prosecution's case is
weak, they may apply for a dismissal of the charges.
POSSIBLE TRIAL OUTCOMES:
a. Conviction: The accused may be convicted of the alleged offenses, which
could result in a sentence of imprisonment or a fine.

b. Acquittal: The accused may be acquitted of the alleged offenses, which

would result in their release from custody.

c. Adjournment: The trial may be adjourned to allow the prosecution or

defence to gather more evidence or prepare their case.