THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

AT MASINDI

CRIMINAL APPEAL NO. 0007 OF 2021

(Arising from Kagadi Magistrate Grade 1 Court, Criminal Case No. 169 of 2017)

1. MUHUMUZA JOHN
2. KAHWA IMERIDA ::::::::::::::::::::::::::::: APPELLANTS
3. TUMWESIGE MICHEAL
VERSUS
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT
Before: Hon. Justice Byaruhanga Jesse Rugyema

[1] This is an Appeal from the Judgment, Conviction and Sentence

by His Worship Nsibambi Lwanga, Magistrate Grade 1 in the
Chief Magistrate’s Court of Kibaale Holden at Kagadi in
Criminal Case No. HMA-01-169-2017.

[2] Facts of the Appeal

The 3 Appellants/Accused Persons: Muhumuza John (A1),

Kahwa Imerida (A2), and Tumwesige Micheal (A3) were
charged with the offence of Malicious Damage to property
contrary to Section 335(i) of the Penal Code Act. It was
alleged that on the 30th July, 2017 at Kyabayaga village in
Kagadi District, the 3 Accused persons wilfully and unlawfully
destroyed the cassava garden of Byamukam John. The
Accused persons/Appellants pleaded not guilty to the offence.

[3] It was the prosecution case that on the 30th July, 2017 at around
10.00 a.m., a one John Businge (Pw2) found the Accused
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 persons/Appellants spraying the Complainant’s garden of
cassava measuring about 4 bipandes, an equivalent of
approximately an acre. The said John Businge reported the
incident to the Complainant (PW1), the Complainant also
reported the matter to the area L.C. I Chairperson who in turn
referred the matter to Police. The Police Investigator, D/CPl
Felix Nankunda visited the scene on 6th August, 2017 and
indeed found that the Complainant’s garden of cassava was
sprayed by a herbicide named as Master Weed. Consequent of
the above, the Accused persons/Appellants were arrested and
charged with the instant offence.

[4] The Accused persons/Appellants are siblings of a one

Kamboye, an uncle to the Complainant. The Appellants own a
garden which shares the same boundary with that of the
Complainant.

[5] In their defence statements, A1 and A3 stated that they sprayed

their garden which was bush that shares the boundary with the
Complainant with herbicide as part of the preparation for
cultivation. That in the course of spraying, the herbicide was
inadvertently blown by wind to the neighboring complainant’s
garden of cassava and caused damage. That however, upon
realizing that the herbicide had damaged the Complainant’s
garden of cassava, A1 and A3 looked for the Complainant in
order to settle the matter but the Complainant preferred to
report the matter to Police.

[6] A2 on her part denied participating in the commission of the

offence, she pleaded alibi. That she was at her home when the
incident occurred.

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[7] The trial Magistrate on his part, found all the 3 Accused
persons/Appellants guilty of unlawfully and wilfully without
any justification spraying and destroying the cassava garden of
the Complainant and convicted them as charged. He sentenced
each of the Appellants to 12 months in prison and payment of
compensation of Ugx. 3,878,608/= to the Complainant within
4 months’ time upon being released from prison

[8] The Appellants were not satisfied with the conviction and
sentence issued by the trial Magistrate and preferred an appeal
to this Court on the following grounds as confirmed in the
Memorandum of Appeal.

1. The learned trial Magistrate erred in law and in fact

when he failed to properly evaluate the evidence and
defenses of the Appellants on record and, as a result,
he came to the wrong decision to convict the
Accused/Appellants of the offences brought against
them by the Prosecution.

2. The learned trial Magistrate erred in law and fact when

he held that the prosecution had proved the
commission of the offences brought against each one
of the three Accused/Appellants beyond reasonable
doubt.

3. The learned trial Magistrate did not properly evaluate

the defenses bought by each one of the three Accused
and as a result, he came to the erroneous decision that
the three Accused/Appellants are collectively guilty of
the offenses brought against them.

4. The learned trial magistrate erred in law and fact when

he held that all the three Accused/Appellants had
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 wilfully, unlawfully and without legal justification
committed the offenses brought against them and, as a
result, he came to the wrong decision to convict all the
three Accused and sentence them harshly.

5. The learned trial Magistrate erred in law and fact when

he sentenced each one of the Accused/Appellants to
twelve months’ imprisonment plus joint payment of
pecuniary compensation to the Complainant of Ugx.
3,878,605=, which was excessive and harsh in the
circumstances.

Counsel Legal Representation

[9] The Appellants were represented by Mr. James Byamukama of

Ms. Byamukama, Kaboneke & Co. Advocates, Kampala while
the Respondent was jointly represented by Ms. Akello
Florence, Assistant DPP, and Ms. Catherine Nakaggwa, both
of the Office of the Director of Public Prosecutions. Both
Counsel for the Appellants and Respondent filed their
respective submissions as permitted by Court.

Duty of the 1st Appellate Court

[10] In agreement with both Counsel for the Appellants and

Respondent submissions, it is trite law that, this being a first
appeal, the duty of Court is to review all the evidence and
material presented to the trial Court and come up with its own
independent findings; Kifamunte vs Uganda; S.C. Crim.
Appeal No. 10 of 1997. This Court is therefore required to
review all the evidence and materials adduced at the trial and
make an independent finding on whether the prosecution
proved each one of the accused persons guilty of the alleged
offence to the required standard of proof bearing in mind that
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 it did not have the benefit of observing witnesses as they
testified.

Consideration of the Grounds of Appeal

[11] Grounds of Appeal from 1-4 relate as to how the trial

Magistrate evaluated the evidence before him while ground 5
relate to the fairness of the sentence that was given by the trial
Magistrate. As a result, grounds 1-4 are to be jointly
considered while ground 5 is to be considered separately.

Grounds 1-4: Evaluation of Evidence

[12] Counsel for the Appellants submitted while relying on Asega &
4 Ors Vs Uganda, H.C. Crim. Appeal No. 48 of 2011 that in
order to sustain a conviction on a charge of Malicious Damage
contrary to Section 335(1) of Penal Code Act, the prosecution
must prove the following ingredients of the offence beyond
reasonable doubt:

(i) Destroying or causing damage to property

(ii) The property belongs to the Complainant or other
person
(iii) The destruction or damage is done maliciously, wilfully
or unlawfully
(iv) Identification evidence confirming the participation of
the Accused in the incident
(v) The Accused does not have a legitimate defence or
legal justification for his or her actions
[13] Counsel argued that the phrase Maliciously, Wilfully or
Unlawfully in S.335(1) signifies intention or mens rea that the
accused person destroyed or damaged the property in issue
intentionally without any claim of right or legal justification;
Muhwezi Jackson Vs Uganda, H.C. Crim. Appeal No. 10 of
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 2008. That if Court finds that the Accused had a legal defence
or justification for his or her actions such as a claim of right
under S.7 of the Penal Code Act, lack of intention to commit
an offence under S.8 of the Penal Code Act, or mistake of fact
under S.9 of the Penal Code Act, the offence is not proved. He
therefore argued further that in this case, the Appellants
admitted the fact that the Complainant’s garden of cassava
could have been damaged when they sprayed their own gardens
with a herbicide in order to clear the bush for cultivation. That
their own garden is adjacent to and shares common boundary
with the garden of the Complainant. They however pleaded
that this was not intentional. The herbicide was accidentally
blown by the wind to the neighbouring garden of the
Complainant.

[14] According to Counsel, the aforesaid defence was consistent

with the fact that, when the 1 st and the 3rd Appellants realized
that the spray had caused damage to the neighbouring garden
of the complainant, they immediately went to him to apologise
and settle the matter, but the Complainant preferred to report
to Police.

[15] Counsel for the Respondent did not agree. According to her,
the Appellants were placed on the scene of the crime and it is
not in dispute that they destroyed the cassava of the
Complainant.

[16] Upon perusal of the lower Court Judgment, I find that the trial
Magistrate at page 4 of the Judgment rightly in my view
addressed himself on the position of the law in the matter as
follows:

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 “Under Section 335(1) of the Penal Code Act, the offence
Malicious damage to property is committed by any person
who wilfully and unlawfully destroys and damages any
property belonging to another.
The Prosecution has a burden to prove beyond reasonable
doubt that the property belongs to the Complainant and
that the Accused persons wilfully and unlawfully destroyed
the property in issue. Wilfully, within the context of Section
335(1) of the Penal Code Act means “intentionally” as
opposed to accidentally, that is, by an exercise of one’s free
will”, see Arrow Smith v Jenkins (1963) 2 QB 561 …
All that has to be proved in that a wrongful act was done,
without cause or excuse. Mere knowledge that it is likely
to cause wrongful loss to owner of the property is
sufficient”.
See also Regina Vs Pembliton [1874-80] ALL ER. 1163

[17] The trial Magistrate upon properly directing himself on the law,
at para 5 of the Judgment proceeded to convict the Appellants
as follows:

“The Accused(s) indeed sprayed the Complainant’s garden

(cassava) as was testified to by Pw2.
There was no evidence of a legal justification for such
conduct. The Prosecution therefore proved beyond
reasonable doubt that the destruction was done wilfully
and unlawfully. I therefore find that the Prosecution
proved its case to the required standard. It proved that the
accused wilfully and without any justification sprayed and
destroyed the cassava garden of the Complainant. I
therefore convict the Accused persons as charged”.

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[18] Nowhere in the Judgment do I find that the trial Magistrate
considered the defence of the Accused Persons/Appellants.
The law required the trial Magistrate to properly consider and
evaluate the defence evidence; Richard Ogola v Uganda
H.C.Crim. Appeal No. 28 of 92 reported in KLR [1992] III 65,
and Uganda v Omony Patrick H.C. Crim. Case No. 061 of
2017.

[19] In the instant case, the Appellants raised the defence of claim
of right and accident. It was incumbent upon the Police to
investigate and verify the same. It was equally incumbent upon
the Prosecution to adduce evidence to rebut such a defence
during the trial. It is not in dispute that the Appellants had
neighbouring gardens to the Complainant. The investigating
officer D/CPL Nankunda Felix (PW3) did not bother to check if
indeed the Appellants sprayed their gardens with herbicides
and find out the possibility of wind blowing the herbicide to
the neighbouring gardens of cassava of the Complainant. This
would be by especially finding out the distance between the
Complainant’s cassava and the alleged sprayed bush in the
Appellants’ garden and the extent of damage. This would have
rebutted the accused’s defence of accident that vitiates
wilfullness/intention to destroy the Complainant’s cassava
plants.

[20] It is not in dispute that the portion of land that comprised of

cassava plants was in dispute and the matter was in Court as
between the Complainant and or his father with the Appellants.
This was revealed by the investigating officer D/Cpl Nankunda
(PW3) at p. 30 of the typed Court record thus:

“Complainant told me that the part where cassava was is

in dispute and the matter is in Court. That it is family land,
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 the suspects and Complainant are of the same family.
They are disputing over that same part”.
[21] It is clear from the above, that the but the evidence on record
reveal that the Appellants had a plausible claim of right. In
Byekwaso Mayanja Sebalijja vs Uganda [1991] HCB 15, it was
held that:

“In a case under Section 315(1) of the Penal Code Act,

honest belief whether justifiable or not that the property is
the Appellant’s own would negative the element of mens
rea. The Appellants’ claim negatived the element of mens
rea requisite under the section. The circumstances of the
case could not sustain consideration under the Section”.
[22] As a result of the foregoing, I do find that the trial Magistrate
did not evaluate the defence evidence and in rebuttal thereof.
The trial Magistrate did neither consider the Appellants’
defence of accident which exonerates an accused person from
criminal responsibility for an act or omission that is not
intended and occurred independently if his will and claim of
right which negatives the element of mens rea, a requisite
under S.315(1) of the Penal Code Act. The above omission by
the trial Magistrate occasioned a gross miscarriage of justice
and on this ground the conviction has to be quashed. The trial
Magistrate wrongfully convicted the Appellants as he did not
properly evaluate the evidence before him.

[23] Lastly, the 2nd Appellant raised a defence of alibi. It was not
investigated by Police and it was not challenged or rebutted by
the Prosecution. The eye witness John Businge (PW2) testified
merely seeing A2 fetching water but not surely participating in
the spraying of the herbicide. Her alibi was alluded to by her
Co-appellants. PW2’s lone identification evidence required
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 corroboration (Yowasi Serunkuma vs Uganda S.C. Crim.
Appeal No. 8 of 89) in view of the fact that the parties had an
underlying Civil trial in Court and the ownership of the land in
Court and therefore, being the father of the Complainant, could
have had an axe to grind against the Appellants.

[24] Once A2 raised the defence of alibi, it is trite that the accused
bore no duty to prove it. The Prosecution had the burden to
disprove alibi and place A2 at the scene of the crime (Uganda
Vs Mac Dusman Sabuni (1981) HCB 1) in which it failed to
discharge.

[25] In the premises, grounds 1-4 succeed. As a result, it serves no

purpose to consider the last ground of appeal regarding the
fairness of the sentence. I accordingly quash the conviction of
the Appellants. The imprisonment of 12 months and payment
of compensation of Ugx. 3,878,605/= are set aside. Unless the
Appellants are held on some other lawful charge, they are set
free forth with.

Dated at Masindi this 11th day of October, 2022.

Byaruhanga Jesse Rugyema

JUDGE

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