CRIMINAL PROCEDURE

Institution of Criminal proceedings

Section 42 MCA provides for institutions by a police officer, public prosecutor or police
officer and private prosecutions.
Section 43 MCA control over private prosecutions
Caselaw
In Uganda v Longino [1975] HCB 306 It was held that pursuant to s.41 (1) now 42(1) of
the MCA proceeding may be instituted in three ways;
(a) by a police officer
(b) by a public prosecutor or police officer
(c) by any person other than a public prosecutor or police officer
And since in this case no such methods were employed and therefore there was no
proceedings pending any court. Mere investigations by the police would not be taken to
amount to court proceedings.
In Uganda v Santina Lakot [1986] HCB 27 It was held that a case having been initiated
by a private person that person ought to have made a complaint as provided by S.41(3)
of MCA 1970.

The Criminal jurisdiction of Courts

Criminal jurisdiction is the power vested in a court or other tribunal established by law
to try and determine questions, which arise out of crimes committed in a country. These
are territorial, local and the power to try( section 6, 34, 161 and 162 MCA)
Caselaw
Desai v Warsama , it was held that where a court takes it upon itself to exercise a
jurisdiction it does not possess, its decision amounts to nothing.
In Uganda v Mustapha, it was held that the courts in Uganda have unlimited
jurisdiction within Uganda by virtue of Article 83(1) of the 1967 Constitution and s.30
MCA, 1970

Arrest
Refers to deprivation of personal liberty by legal or apparent authority. Article 23(1)
provides for personal liberty. Section 2 CPCA cap 116 arrest
section 5(no unnecessary restraint)
Section 28(7) police Act Cap.303 circumstances under which police can use a firearm
Section 56 & 60 MCA Arrest with a warrant

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Section 10 & 11 MCA Arrest without a warrant
Section 19 & 20 MCA Arrest by Magistrates
Section 15 CPC empowers a private person to arrest any person he presumes to have
committed a cognizable offence.
Section 17(1) CPC release on bond with or without sureties for an accused to appear at
a police station at a place & time stated in the bond.
Caselaw
In Byaruhanga v Uganda it was held that in case of an armed person who is using a
firearm to resist an arrest by the use of a firearm use of reasonable force may be
justified. The accused were handcuffed and unarmed, the use of firearms was held to
constitute unreasonable use of force.
In Kisegerwa v Uganda, it was held that the law permits the use of force to effect an
arrest where the situation warrants it but this force must be carefully exercised.
In Bukenya v AG, Members of the armed forces shot the plaintiff and contended that it
was done in order to effect arrest. Court held that neither the police, soldiers nor private
citizens, when lawfully entitled to arrest without a warrant may shoot anyone in cold
blood.

Searches
Is by definition an invasion of privacy or an inspection carried out in a building, vehicle
or upon a person.
Section 3 CPC & 69 MCA search of place entered by person sought to be arrested
Section 4 CPC power to breakout for purposes of liberation
Section 6 CPC search of person to be arrested
Section 8 CPC Mode of searching women
Section 7(2) CPC power to seize any thing he believes to have been stolen by a police
officer in due course of searching
Section 69-74 MCA
Caselaw
Mohanlal Trivedi v R where an appellant convicted of being in possession of property
reasonably suspected of having been stolen. On appeal was held that, the conviction was
quashed as the police produced no evidence of a search warrant that permitted them to search the
appellants house and shop.
Kityo v Uganda it was held that the power of stopping and searching under S.7 CPC is
vested only in police officers.

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Criminal summons is a simple court document that contains a number of facts
justifying an inquiry into a complaint against an accused person and requiring him/her
to attend the inquiring.
Or it means a legal document presented to someone telling them what date to appear at
police or in court.
Section 44 MCA Cap.16 Forms and contents of a summon
Section 45 MCA service of summons to the accused person
Section 46 MCA service of summons when accused cannot be found
Section 47 MCA procedure when service cannot be effected
Lastly sections 48-52 MCA
Caselaw
In Stephen Obiro v R Court noted that the charge against the society was bad in law
because criminal proceedings could not be against an incorporated body.

Bail
Defined in Uganda v Lawrence Luzinda (section 75(1) MCA
object of bail-to ensure an accused person appears to stand for trial without necessarily
being detained in custody in the mean time.
In Mpuuma v Ug, it was said that the right to apply for bail accrues after a person has
been remanded into custody or has been arrested and is brought in court in connection
with a crime such a person would at the time of application be in some form of custody
as he/she experiences restriction on freedom of movement for application of the bail to
make sense. “Appear” or “person appearing before court” in section 75(1) & 4 MCA
must mean personal appearance before the court by the accused not the advocate. In
this case since the applicant never appeared before the magistrate’s court nor had he
been charged with a criminal offence (at the stage of the application) his application for
bail was found premature & incompetent.
Right to bail
As provided under Article 23(6) of the constitution, In Tumushabe v AG, Tuinomuguni
Amos J said “ The right to bail is a fundamental right guaranteed by article 23(6) of the
constitution and its basis is to be found in article 28 of the constitution which states that
an accused person is innocent until he or she is proved or he/she pleads guilty. It also
provides that an accused is entitled to a fast and speedy trial before an independent and
impartial court or tribunal established by law.

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In Adimola v Ug the court was mindful of the fact that the accused faced a very serious
charge of treason but it found that in the eyes of the law, the accused is innocent and
remains so until the court proves the otherwise.
Automatic and discretionary bail
Article 23(6)(a) provides court the discretion whether or not to grant bail, hence in such
circumstances bail is not automatic.
In Kigemuzi v Ug, the court held that the right to grant of bail is a constitutional right
secured under article 23(6) and the individual in certain circumstances is entitled to
automatic grant of bail where she/he has spent either 120 or 360 days on remand.
Section 77 MCA rules governing the grant of bail
The position of law is unfair to an accused who may later be acquitted after staying in
remand for long. In Okumu Reagan & anor v Ug Two opposite members of parliament
were indicted for murder but later they were acquitted with no evidence against them.
Section 75 MCA Bail in Magistrates Courts
Section 14 & 15T.I.D Cap.23 Bail in the high Court
Section 174(1) MCA Bail pending confirmation
Section 164(1) MCA Bail pending revision
Section 205 MCA Bail pending Appeal
In Chemiswa v Ug, the court found that, a court has the discretion to grant bail pending
appeal and each case has to be considered on its own merits. In this case the anticipated
delay in hearing the appeal was not by itself found to be sufficient cause unless it was
coupled with other facts.
In Immaculate Lugolobi v Ug, it was said that what court requires is certification by a
medical officer of the prison where the accused is being detained, that the applicant is
gravely ill and that her condition warrants release for better management of her health
condition
Its granted only in exceptional circumstances;
-the complexity of the case
-length of the sentence imposed
-likelihood of delay in hearing the appeal
-likelihood of success of the appeal

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Charges and Indictments ,
A Charge is a formal written accusation of an offence drawn up either by a police officer
or a magistrate and signed by the magistrate to be used in a magistrates court on a basis
for trial or preliminary proceeding.
An Indictment is a formal written accusation of an offence drawn up and signed by the
D pp and filed in the registry of the high court to be used as basis for trial in that court.
Section 85MCA Contents of a charge
Section 88MCA Legal provisions for framing a charge
Section 86MCA Joinder of counts
Section 87MCA Joinder of persons
Section 22 T I D Contents of indictment
Section 23 T I D Joinder of counts
Section 24 T I D Joinder of persons
Section 25 T I D Rules for framing indictments
Section 132 MCA amendment of charge sheets
Section 50 & 51 T I A Alteration of indictments
Caselaw
In Judagi & Ors v West Nile district Administration it was held that the failure to
frame a charge was fundamental mistake and therefore the trial was declared a nullity.
In Uganda v Byaruhanga, it was held that the charge should be signed by the police
officer who brings it and the magistrate should not accept to proceed with the charge
until its signed.
In R v Dalip Singh, it was held that although these two offences were different in
character, they were founded on the same facts. The test used in determining whether
these offences were founded on the same facts was proximity in time between the two
offences.
In Alikaeli v R, it is a rule of practice that has become a rule of law that no other count
can be joined to a count of murder or manslaughter except where the additional count is
based precisely on the same facts as the more serious charge ie where murder resulted
from arson, the court may exercise its discretion and allow the charges to be tried
together.
In Uganda v Yokasafati & Ors, 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.
Which cannot be rectified and it will lead to the quashing of the conviction.

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Alternative Charge
is an additional count laid against the accused in the same charge where the
prosecution is not certain of which offences the facts of the offence will support.
In Wanda & Ors v Uganda, it was held that a conviction of the alternative count of
murder, when the judge had already entered a conviction on the main count of robbery
was an error in law.

Pleas
Is an answer to a charge made by the accused in a criminal case i.e. may be a defense or
an objection to a charge being brought. There are basically four types of pleas thus plea
of guilty, plea of not guilty, plea of autrefois acquit or convict and plea of pardon.
Section 124(2) MCA Plea of guilty
Section 124(3) MCA Plea of not guilty
Article 28(10) Plea of pardon
Article 28(9) Plea of autrefois acquit or convict
Section 61-65 TIA

Caselaw
Adan v R, procedure of recording pleas set down therein
In Kaplotwa s/o Tarino v R, the issue that arose was of whether or not the accused was fit
to plea. The issue of fitness to plead rose, the material evidence showed that due to
senility and hardening of arteries of the brain, the accused at times appeared to be
“wanting” but would be capable of understanding the nature of the charge in his more
lucid moments. The accused was found fit to plead and convicted of murder.
In Re Balaki Kirya, court noted that; “that it was premature for this court to entertain
what amounted to a special plea of the presidential pardon under the prerogative
powers of mercy, exercisable by the president as an indictment had not been filed and
the trial had not commenced.

Sentences
Sentencing is the specification of the punishment or criminal sanction which is to be
imposed upon a convict for the crime committed. Section 82 TIA
In criminal law and procedure this comes after judgment. The court after hearing the
evidence from both the prosecution and defense either commits the accused & passes
the sentence upon him according to the law or acquits him. Magistrate powers of
sentencing are under section 162 subject to 161(a)MCA

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Objectives of sentencing
-To prevent repetition of the crime by the accused
-To deter other members of the crime from committing the same crime
Factors influencing sentencing
-Antecedents of the accused
-First offender
-Ignorance of law
-Good motive
-Necessity
-Drunkenness or intoxication
-Loss of self control
-A plea of guilty
-Less degree of participation
-Sickness/illness
-Age of the offender In Uganda v Otim s/o Engodu, it was held that a magistrate has to
consider several matters before passing sentence and these include the age of the
accused and value of the property stolen.

Theories related to sentencing

Deterrent theory; accordingly in this theory punishment is given in order to deter
people from committing the crime. Since emotion of fear plays a vital role in a person’s
life. People fear to commit offence because it will render them to suffer.

Retributive theory; the theory is acted on principle of eye for an eye, a tooth for tooth
i.e based on primitive nature of vengeance against a wrongdoer. It does not look at the
motive but to the intention in committing the crime. However in modern times it has
lost much in efficacy.

Preventive theory; its also known as theory of disablement. It aims at preventing the
crime by disabling the criminal. In order to prevent the repetition of the crime the
offenders are punished with death or life imprisonment.

Reformative theory; here the object of punishment should be to reform criminals

because crime is a mental disease caused by different anti-social elements. Hence there
should be mental cure for criminals instead of sentencing them to severe punishment.

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Disparity in sentences
Two or more persons jointly charged and convicted for having committed an offence
may not always necessarily serve the same sentence. This is because although they may
have committed the offence jointly and under the same circumstances, mitigating
factors in respect of each of them might differ considerably i.e antecedents & or factors.
In Mirando v R, the appellant & the co-accused were convicted of manslaughter. The
appellant who was the first offender was sentenced to 4yrs imprisonment and his co-
accused to one day imprisonment.

Types of sentences
Death sentence;
Criminal who commit crimes like murder, treason ,aggravated robbery and aggravated
defilement are given a punishment of death sentence because such crimes are
considered very grievous and that such offenders being dangerous should be kept
permanently from the society. Section 99 TIA
Imprisonment;
this occurs when the sentencing orders commit a person into custody at a prison for a
specified period of time.
Life imprisonment;
this is a sentence for a serious crime often for most or even the entire criminals
remaining life, but usually it’s for a specified period. Section 86(3) prisons Act 17 of
2oo6 –life imprisonment shall be deemed to be 20yrs imprisonment.
Fine;
this is usually for offences which are not of serious nature and it’s most times provided
as a punishment to be added on imprisonment or an alternative sentence to
imprisonment. Section 180 MCA on fines
Probation;
this type of sentence is usually used to reform the offender and rehabilitating him or her
into the society. Thus it’s both a combination of treatment and punishment in the
community corrections, placed under supervision of probation officer so that his or her
rehabilitation is the main object other than imprisonment & fines.
Caution

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Assessors
Section 3 TIA-These are lay persons selected in the locality of chief magistrates. Or a
person usually an expert in the subject matter under consideration who sits with the
judge & assists him from his special knowledge. The assessors are appointed by a chief
magistrate to serve their role in a particular locality and are used in high courts as seen
in section 81-82TIA
Section 67-69 TIA Cap.23
Pre-requisites of being an assessor
-Be a citizen of Uganda
-Be between ages of 21-60
-Must understand the language of the court-English
Roles of assessors
-Assists judges in their historical role as expert witnesses in customary law and local
ways.
–Assist trial judge in assessment of demeanor of the witness
-Evidence participation of members of public in administration of justice Article 129
Impact of assessor’s advice on the decision
It is not binding on the judgment
Caselaw
In Uganda v Kangameito, it was stated that it is improper for assessors to form their
opinions before hearing counsels submissions and the summing up.
In Tinkamalirwa & anor v Uganda, it was stated that some of the matters which the
judge should direct the assessors on are;
-the contradictions & inconsistence’s in evidence
-The weight to be given to certain pieces of evidence e.g evidence of a hostile witness
-when court may base a conviction on identification by a single witness
-when court may rely on circumstantial evidence

Functus officio rule (latin)

it means having performed his/her office. It refers to a legal term used to describe court
not retaining any legal authority because its duties and functions have been completed.
The general rule is that a final decision of court cannot be re-opened. The rule applies
only after the formal judgement had been drawn-up, issued and entered.
Has two exceptions
-where there has been a slip in drawing it up.

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–where there was an error in expressing the manifest intention of the court
The court becomes functus officio the moment the judge or magistrate signs the order
disposing of the case. The court has no power to amend the charge after the conviction
as it is functus officio
Caselaw,
In Uganda v Ogwang, it was held that its 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
substation of a plea of not guilty.

Judgements & Competent verdicts

A judgment is a reasoned pronouncement by a judge or magistrate on a disputed legal
question which has been presented before him or her by the parties. Or the adjudication
by the court that the accused is guilty or not guilty
It is basically delivered at the end of the end of the prosecution’s & defense case and
after submissions and summing up those assessors. The judgment will lead to the final
verdict of the accused as to the guilt(conviction) or innocence(acquittal) of the accused.
Section 85 TIA & 135(1) MCA provides that every judgment must be pronounced &
and the substance of it explained in an open court. In Misango v R, it was held that a
judgment is not a judgment until its reduced in writing and delivered in an open court.
Sections 85-86TIA & 135-136 MCA
Competent verdicts
The general principle of law is that an accused should not be convicted of an offence of
which he/she was not charged unless he has had an opportunity of defending himself
against the alternative offence. However the MCA & TIA have exceptions to this
principle; Section 145MCA
Caselaw,
In Baland Singh v R, It was held that a judgment includes conviction and sentence and
as long as these two elements are present other deficiencies are mere irregularities that
are curable.
In Karim & 3 ors v Uganda, the supreme court of Uganda held that the TIA does not
permit a trial judge to reserve reasons for his judgment to be given later.
In Robert Ndecho & anor v R, It was held that where an accused person is charged
with an offence he may be convicted of a minor offence, although not charged with it, if
the minor offence is of a cognate character i.e of the same kin, genus or species with that
other.

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