M.B. 123 J ANUARL-J2.7..g M.B. !

:23

CRIII1INAL

Uganda v. Abel Ochan

1/72 Criminal Session Case No. 439 ~f 1971

(Original Criminal Case No. ~~. 12 of 1970)

Before: Phadke, J.

Rape - ne~ed fo_r_~()rroborati~:m of 9omp~~apji~~ _e.vj:.dence

- circumst'¥1-.
cial evjA<?_~~e_~i~mJ?1icat~n1Lt.h~~~_ed may -~.E11t, to corrobor§tion.

The accused was charged with rape cont~ary to section l17 and
118 of the Penal Code.

On the evidence before the court, the court found as a fact

that the accused raped the complainant. 'I'hecourt then addressed its
mind on the issue of corroboration of complainant's evidence. On this
issue the following facts were established -

The con~lainant immediateLy made a repo~t to her step-son and

later to the chief. The accused was fou~d lying completely
naked inside the house within a short time. The trousers
Which the complainant picked up and carried away were the
accused's.trousers. The complainant's necklace was broken
and the heads in the necklace were found scattered on the
floor inside the house. The injuries sustained by the
complainant showed that force had been used against her.

~ Circumstancial evidence implicating the accused could be

corroboration. On the facts as established, there was ample
corroboration of the complainant's evidence.

The accused would be found 6~ilty of the offence of rape

contrary to sections. 117 and 118 of the Penal Code, and
accordingly convicted.
(F.K.B.)
--'-" '_~'._-

Christopher Kabenge v Uganda

2/72 CriminalAppeal No. 320 of 1971

(OriginalCriminal Case No .MICA
.163/71 of Magistrates' Court ,Kabale)
Before: Kiwanuka, C.J.

,
Bail pen9-.~<!e_t~e.:r:'minationof an a:QpealL f3_.-1-~lLU_of M.C.A. -
commencement_££.~n a'ppcab2_~ 326'of M.C.A~.

Mr. C. Kabenge was aft2r conviction, granted bail pending

the hearing of his appeal. This was done a day before the lodging
of his notice of appeal.

Held: 1. S.217 of the. M.C.A., under which the application for bail
was made provides for the granting of bail to an appellant.
Where a convicted person has not filed an. appeal, the
provisions of that section do not apply to him.

Contd.. .2.
"

- 2 -

2. Undor's. 326 of the CoPoC. Act (ZlS amended by Act 23/69),

an appeal is commenced by a notice in writing. The appeal
commences ~Jhen this notice is given. ~
\\
3. The noiice in this case was given on 30.9.710 'When the
magistrate purported to grant bail to ~IT. Kabenge, on
29.9.71, Kabengc was not an appellant yet, as such the
granting of bail was illegalo

Bail cancelledo

Por Curiam: Conditions for bail after conviction must be more

\ stringent than conditions for bail before conviction.
In this particular case where the accused was convicted for
having obtained ovor a million shillings by false pretences,
a deposit of Shs. 30,000/- in the court, which was easily
obtained by the accused,was an insufficient sum 0 In cases
of this kDld, the sum of money to be demanded as cash bail
should be related to the amount of money stolen.

(CoN.K.)
-,> """---"

Fred Baguma v Ugancla

3/72 Criminal Appeal No.703 of 1970

(Original Criminal ea,se No.MMU.1491/70of C.M's Court, Mengo)

Before: Galdanha, J;

Identificati_o.£ :l~esemblance -~.!sonatt1$'..~a~.£.~~E}J..9officer c/s.

360 of the}:)_?E:a.1..Q..~

'rhe appellant was convicted by a Chief Magistrate at Kampala,

of the offence of personating a public officer. The evidence adduced
before the trial magistrate was that the accused and two other
men, holding out to be publi. officers hoaxed and dotain~d lfIT.R.
Byatt, a First Secretary in the British lligh,Commission at Kampala,
and took some money and a watch from him.

At an identification parade I~. Byatt, said the accused

resembled the man who detained him. At the trial ~ITo Byatt stated
that "the accused bears strong.resemblance to the man I picked up
at the identification parade who resembles the man who detained me.H
The 1nain ground of appeal "ms that ihere was more than
reasonable doubt whether the identification was(properj since N~.
Byatt did not definately say that the accused wa~ the man who
detained him.

Held: Although tIT. Byatt said that the appollant strongly resembled
the man Nho hoaxed him, what he must h8ve meant was that he
was reasonably certain that the appollant was the man who
had perpc-rtro.ted the hoax on himo

Appeal dismissGd~

(CoN.Ko)

Contd. 0 .3.
 Joseph Kiiz~ v U~aDda

4/72 CriminalAppoal 11001]6 8; 144 of 1971

(Original Criminal Case NOo!\II\lU02479/7'J col the .G.M's Court, Mango)

Before: 0~iG~! J,

Rec_<?i':!l:.~_<2.J:'~!{.e.t.a.i.ni~€i'...E~.?]_'::E--E!..oJ?c;£!}~clro..2.9._0{~). .?L the F.e.m 1 C°.9-.e.-:.,

~ffi qi e_~_.Ey:!:.cl_?n.<J.9.-.?Ly_~~?~i ?P--=.-

The: appellant was joint ly charged tJi'Ch tvJO others with theft of
a motor-car cls 252 and 255A of the Penal Code, and of receiving
or retaining stolen property (i.oo, the so.mo car) c/s 298(1) of the
Penal Code.

All three were convicted of recoivinG or retaining stolen

property. The police found tho car whioh had beon reported stolen
~eedays beforejparkod at N~casoro market. A little, later,' the
three accused persons were seon going to the car. The first accused
whose appeal was d.ismissed summarily, sat in tho driving seat, while
the appellant and the third accused. sat in the rearo The policemen
arrested them before the car was driven away. The appellant and his
companion in the back soat maintained that they had 'hired the car to
take them to Kisenyi.

ITI his judgment tha trial magistratostated that from the facts
of the case and the evidence tGndero~ by the pro.secution the
essential ingridients of crime of roceiving and retaining stolen
property, namely, theft of the ~ropGrtY1 possession of the stolen
property, and knowledge or reason to oelieve that the property was
feloniously obt2inod had b0en proved adequately. He dismissed the
explanations offered by the appellant and the co-accused as a
"pack of lies;1.

Held: 1. Although the magistrate sot OUS the three essentials

which the prosecution had. to pl"cn; in respect of the offence
of Receivingand Retaining sto]IJn proper-cy I he did not give
reasons, as is requi~Gd per s. 134(1) of-N.C.A., in support
of his findings"that those osscatials had boen Hprovod
adequatel,y';; .
2. The: entire case turned. on thl~ issue of Dossession.
~Vhere defondants are jointly chargod with knowingly
receiving stolen property i thero must be a c11reful ruling
about the possossion of e9.c11 0 I
("
3. In this case the evidence calcu13'cocl to ~stablish
\
possession in law was almost negligible cmd ultorly in-
sufficient to prove any possGssion or corrcrol in the
appellant. The finding by tho trial magistrate that
possession had boen 1Iproved adequately;; loJas unjustified
and misconceived i~ law. In fact no 'prima facie' case was
made out against the appellant.
Appeal allovwd.
Cases: .!:~9~~PI :V:'.,Jt.~J..(1928) 20 Cr. App. n. 72,
Et~e~~~E (1931) 22 Cr. Appo Ro 133.
I-I~b_s_?n_v:...i.tnl?ot!..t 41 Cl', App" R 0 138.
I~.!~-",:: S!1?W.L(1942) 2 1-\11 E.H. 342.
~---~._,. - . Court.- '-
Leslio David (1960) 44 Cr. App. lL242.
11,1uri~i_,:Y.'.II.(;)y_~J1967)E.A. 5420
( C.N.K. )
-' "'.-, --,-
Contd.. 04.
 - 4-
. ~,'

Uganda v. Eruneo Kayiwa

5/72 Criminal Hovision 1':0.10 of 1972

(Original Criminal Case No. MN~.785 of 1971 at C.M's Court, Masaka)

Before: Youds, J.

Reconciliation in Criminal Cases - s. 156 ofMa[;istrates' Comts Act 1

- --- ""'_""d. ""'''--'-~'--~--'"~.~-u_-,-~- ""', ._.~.. ' ..1979_:;~-==

The accused was charged with Theft c/s 252 of the Penal Code,
and had pleaded not guilty to the chargo. No evidence was adduced in
support of the charge. The trial magistrate merely ordered:
"reconciliation to be promoted under section 156 ef the Magistrates'
Courts Actj 1970.::

Held: 1. The triGl magistrate had no power to apply the provisions of

s. 156 M.C.A.y to a case of thoft which is a felony.
2. The trial magistrate did not have any powor to make any
order when he had heard no ovidence in support of or relativo
to the chC\r[;e.

The: order of the magistrate was quashod and the record remitted
to the Chief Magistrate for a propor trial.

(J?M.3.)
_..~~~--~--, '-~-_..

6/72 SENTHJCES IN CRnlr..N..A..~g.A.;?E8

( 1) Cr. of.m.L-Ji-E.£ Y' Ug,~1..~ill9.ne sy J. 2

_!P..P_c:.?J:.J~o.~._~9

The accused was convicted of robbery and sentenced to 5 years'

imprisonment and 20 strokes. This was on the J(.7.71. Decision:
Both the Chief Magistrate and Magistrate Grade ~ havG, since 21st
May, 1971, powers to order 24 strokes to bo giveh for specified
offences by virtuo of Decree 17/71. This decreG is not applicable
to a case vJhich was committed on a date prior to 21st May, 1971.

Appeal allowed as to sentence in part and corporal punishment

reduoed from 20 strokes to 12.

._~.. -"--.

Contd...5.

.
\
 - ) -
CIVIL
(
\
A. Akao v. The Attorney General

7/72 Civil Suit No.585 of 1971

Before: Phadke, J.

Damages fo£.)_o~:::::::o..f_-~~~-: wh~the~ist.i.1}.9j;j.on should be rrade

bet ween <?.la.lm..s...b.Ji:"
i-_~f~.!!.~~~!lcLj;~9.E"§!~ a<i1:!-.l
~

The plaintiff claimed generul damages from the defendant for

the loss of the sight of his left eye, for cuts and bruises sustained
on his face, and for pain and suffering undergone as a result of a
motor accident. .

'rhe plain'ciff was 40 years of age and \'I1as a Deputy

Superintendent in the Uganda Police Force. Counsel for the plaintiff
submitted that a distinction should be made between infant claimants
and adults in avmrding damages for loss of eye; that an adult should
necessarily be awarded a larger sum than an infant. Counsel for the
defendant submit'~ed that no such distinction should be made.

Held: 1. The court would not accept the submission that because
the plaintiff was an adult he should necessarily be awarded
a larger sum than that awarded to an infant.
2. Upon giving cqnsideration to the facts of the case and
particularly to the extent of the plaintiff's handicap in
his work as a police officer,. and bearing in mind the need
for reasonable uniformity with previous decisions, the court
would award general damages of Shs. 45,000/- for the loss of
the eye and Shs. 5,000/- for pain and suffering and
inconvenience.
Accordingly judgm~nt would be entered for the plaintiff
for Shs. 50,000/- with interest at 6;.. p.a. from the date of
judgment until payment thereof, and the costs of the suit.

Cas~ Claims Cases,

!!£..lli~s...V:... 5th Ed. p. 442
B~~tis}~.-1'ra_~,t C07I!!i.~.SJ..<?~
. (Bingham's Motor
Pik_~ T.ri.~ity Wharf Co..! (Ibid. p. 443)
!l.G. PaJe.~.&. G.M. Pa~el v.--!\~!.<?FE_e:y'G~x:~r..?!..L
(Civil Suit No. 602760i Monthly Bulletin 28/61)
~~..:!i_~~~h v. N...!.p.Katariya & Co~ Lt~, (Civil Suit
No. 452762; Montply Bullet in 11/63)
Akon1i()-:~o. y~ Attorn~-2.~_~_~1 (Civil SU~ No. 6/67;
Monthly Bulletin 89/70)
Amin Mohamed v. Director General E.A. P & T. (Civil Suit
No:'149l70iMonthly Bulletin
210/70)
Vell~~.s~io.._K.Y.2l-ibel'a v. vlest Me?;2;o :P..ist~_ict .,Administr~tion,
{Civil Suit No.697770;Monthly Bulletin
121/71)
AJ':at_J3..~~l1.>~-~.Acholi Dis.1Eict Admi.l~~.~'G..rat?:().!;(CiVil suit
No.396 / 71)
Sai~.~~.B.~i.gg"a v. AttO!_~~.Gene.!E-l.(Civil Suit No.519/70)
Trott v. fll.A. Steel Ltd. (Munkman on :;Damages for Personal
- ..~_.. --- Injuries,(: 3rd Ed.p.183).

(F.K.B.)
-'-"-'--".'-"~' ',."-,,.,.

Contd...6.