THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA
HCT -08 – CR – CM – 0040 – 2014
- KIZA PATRICK AJUSI
- ERUAGA ISAAC NYUMA ______________ APPLICANTS
=VERSUS=
R/UGANDA ______________ RESPONDENT
BEFORE HON. JUSTICE VINCENT OKWANGA
RULING
The two applicants filed separately by Kiza Patrick Ajusi, 1st applicant and Eruaga Isaac Nyuma, 2nd applicant both arise from Adjumani Chief Magistrates Court criminal case No. 0165 of 2012, whereby the two applicants were both convicted of the offences of criminal trespass c/s 302 (a and b) and malicious damage to property c/s 335 (1) of the Penal Code Act by His Worship Kitiyo Patrick, Magistrate Grade I, Adjumani on 15/07/2014, and sentenced to 2 years imprisonment on count I and 3 years imprisonment on the second count with both sentences to run consecutively on both counts. In addition to the above sentences of imprisonment, each of the applicant was further ordered to pay Uganda shillings 2.000.000= (two million) as compensation to the complainant allegedly for the costs of the wire fence damaged by the two applicants and pay a further Uganda shillings 2.000.000= (two million) each to the complaint as punitive damages for the ‘mental anguish’ suffered and the expenses incurred by the complainant in pursuing the criminal case. Both applications seek the following orders;-
- That the applications be certified urgent and heard expeditiously,
- That the Honourable court be pleased to call for the records of the trial court and examine the same for purpose of review and or confirmation of the sentences imposed by the trial court, and
- That the Hon. Court be pleased to release the applicants on bail pending the review/confirmation of the sentences and or their appeal respectively.
During the hearing of the two applications filed as Misc. Criminal applications No. 0040 of 2014 and 0039 of 2014, respectively, on realizing that the two applicants were charged and tried jointly in the lower court, convicted, and sentenced of similar offences by the same trial court on the same sitting, this Hon. Court made an order and directed that the two applications by consolidated and heard together.
The applicants were brought by Notice of Motion under sections 173, 174 (4) & (5) of the Magistrates Court Act and section 50 (2) of the Criminal Code Act and each supported by the affidavit of each applicant dated 15th October, 2014 respectively.
Mr. William Lebu who appeared for both applicants argued that the two applicants were each convicted and sentenced to serve 2 years on count I and 3 years imprisonment on count 2, with both sentences to run consecutively without the option of a fine. Counsel further pointed out that each applicant was further ordered to pay a total of Uganda shillings 4,000,000= (four million) as costs for the wire fence allegedly destroyed and punitive damages to the complainant for the mental anguish suffered and expenses incurred by the complainant in pursuing this matter in court.
Counsel argued that under section 173 (1) of the Magistrates Court Act, the sentences of imprisonment of 2 years and 3 years imposed on the two applicants by the trial court all require confirmation by this Hon. Court. He contended that the trial Magistrate on passing the above two sentences on counts I and II, had the discretion to release the applicants on bail after passing such sentences pending this Hon. Court’s confirmation.
In exercising its power under section 174 (4) MCA and section 50 (2) of the Criminal Procedure Code Act, this Hon. Court has the same powers conferred upon it by that section (50 CPCA) when confirming a sentence, the same powers of revision as under section 50 CPCA.
While exercising such revisionary powers under section 50 CPCA, this Hon. Court is seized with the powers and is acting as an appellate court. Such appellate jurisdiction is exercised by this Hon. Court subject to section 34 (1) and (2) of the Criminal Procedure Code Act. Such powers include the power to reverse, review or vary the sentence.
The applicants contend that the sentence in count I of 2 years imprisonment is clearly irregular and illegal in law as the maximum sentence provided for under section 302 (b) of the PCA is a maximum sentence of 1 year imprisonment.
Counsel also contend that the sentence of 3 years imprisonment imposed in respect of count II is also illegal as it is not supported by the provisions of section 335 (1) PCA. He submitted that although that section provides for a maximum sentence of 5 years imprisonment, the court could only resort to such a high sentence of 3 years if no other option was available. Counsel further attacked the award of sh. 2.000.000= as costs for the wire fence allegedly damaged and the further shs. 2,000,000= ordered as damages for mental anguish and expenses incurred in pursuing this criminal matter which orders could only be made and paid out of a fine which was not ordered in the instant case. He prayed that the applications be allowed, conviction orders he quashed and the sentences set aside for illegality.
Ms. Harriet Adubango Resident State Attorney who appeared for the DPP prayed that this Hon. Court be pleased to examine and confirm the sentences meted out by the trial Magistrate Grade I, Adjumani on 15/07/2014 – although in her submission she also conceded that the sentences of both applicants on count I were illegal as the maximum sentence allowed under that section is a maximum of 1 year imprisonment. She further prays that this Hon. Court be pleased to quash the illegal sentence of 2 years imprisonment and substitutes it with the maximum sentence of 1 year imprisonment as the circumstances justify the maximum sentence of one year imprisonment. In respect of the sentences in count II the learned Resident State Attorney argued that both sentences in that count are legal and prayer in the circumstances as the learned trial Magistrate did exercise his discretion judiciously considering the latitude of the maximum sentence of 5 years he was not bound to give a fine as the only option – she supported the orders of compensation of shs. 2,000,000= for the cost of the wire fence and the further two million as damages for mental anguish and expenses incurred in pursing this matter.
I agree with counsel for the applicant, in his submission that while exercising its jurisdiction under sections 173 and 174 (4) & (5) CPCA, this Hon. Court has powers to review, confirm and or vary any sentence meted out by a Magistrate’s court other than a court presided over by a chief magistrate.
In the instant case I find that the maximum sentence a Grade I magistrate may impose on any person convicted of criminal trespass c/s 302(a) and (b) PCA is imprisonment for 1 year. A sentence of two (2) years imprisonment imposed by the trial magistrate is clearly illegal and not supported by the law under which the two applicants were convicted. Accordingly, the sentences in count I of the charge sheet under which these two applicants were convicted are not confirmed by this Hon. Court, thus leads this Hon. Court in the exercise of its jurisdiction hereby in reviewing the said sentence in count I hereby quashing the conviction of both applicants on the charge of criminal trespass in the trial court on count I and sets aside the sentence of two(2) years imprisonment on the ground that it is illegal always supported by section 302(a) and (b) of the PCA under which the two applicants were convicted.
In respect of count 2 of the charge of malicious damage to property, I find that the sentence of 3 years’ imprisonment was excessive by harsh and high considering the maximum sentence of 5 years, the trial magistrate was entitled to impose and there was no justification alone satisfying reasons were advanced by the trial magistrate for imposing such a sentence.
In the end I shall exercise my discretion under section 50 of CPCA and review the sentence of 3 years’ imprisonment on count 2 which I find on the other side and do reduce the sentence to 1 year imprisonment on count 2 instead of 3 years imprisonment. The two applicants having served their respective sentences from 15/07/2014 up to 15/07/2015, when they were admitted on bail by this Hon. Court, I feel that the one year they have already served imprisonment is enough and sufficient for that count. Their sentence in count 2, having been reviewed by this court is reduced.
Regarding the orders for compensation of shs 2,000,000= (two million) for the costs of the wire fence allegedly damaged I find that such an order is clearly illegal and not supported by the law order which an order was made. I shall set aside such an order.
The same for the order of a further shs. 2,000,000 (two million) damages for mental anguish and expenses incurred by the complainant. There is absolutely no justification for the trial magistrate to award such amount, how and what modality did he use to compute and arrive at such a figure of shs. 2,000,000= for each applicant.
Such an order offends the section of the law and order in they were made, the orders shall both be set aside.
In the end this application is allowed on part on both counts as above and the two applicants shall be set free forth with unless being held for on any other lawful charge.
Any bail deposits paid in this court on this application and the ones in the lower courts during the trial shall be refunded to them on application and presentation of the valid receipts thereof. It is hereby ordered.
VINCENT OKWANGA
JUDGE
30/07/2015
Court: Ruling delivered in open court.
Signed
Judge
30/07/2015
