Kyarisima v Uganda (Criminal Revision 9 of 2024) [2024] UGHC 1110 (16 December 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CRIMINAL REVISION NO.009 OF 2024 [ARISING FROM CHIEF MAGISTRATE COURT OF SEMBABULE AT NTUSI]

## CRIMINAL CASE NO. 012 OF 2024

### CRB/NTS/PP/012 OF 2024

KYARISIMA EDITA:::::::::::::::::::::::::::::::::::: **VERSUS**

## UGANDA:::::::::::::::::::::::::::::::::::

### **RULING**

- This matter was placed before me by the Deputy Registrar following a letter $[1]$ dated 15/10/2024, by the Chief Magistrate Sembabule for purposes of revision and further advice. - The brief background of this matter is that the accused person herein obtained $[2]$ a loan from the complainant amounting to UGX. $575,000/$ = payable within 30 days at an interest of 15% and a penal interest of 20%. The accused person defaulted and was charged with the offence of obtaining credit by false presences contrary to Section 308(a) of the Penal Code Act Cap 120. It was alleged that Kyarisima Edita on the 02/07/2023 incurred a debt or liability and obtained UGX. 575,000/= by means of fraud from Bweera Seven Brothers Business Enterprise Ltd at Ntusi Town Council in Sembabule District.

When the accused person was arraigned before Court on $02/02/2024$ , she pleaded not guilty to the charges and she was remanded. The accused person then appeared on 09/02/2024 and pleaded guilty. She was convicted and sentenced to a compensation of UGX. $600,000/=$ or 9 months' imprisonment in default. The convict failed to pay the said compensation and she was accordingly committed to prison per the warrant of commitment dated 09/02/2024. On 18/09/2024 a complaint was lodged with the Chief Magistrate at Sembabule against the trial Magistrate and upon perusal of the same, the

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files were called and forwarded to this Court through the Deputy Registrar for purposes of revision and advice.

- $[3]$ I have carefully examined the lower Court record and I am appalled at the inability of the Magistrate Grade 2 to conduct plea taking procedure. I say so because this is the third criminal file with almost similar irregular proceedings. The trial Magistrate seem to conduct Court proceedings in a casual manner and in disregard of the proper procedures in conducting criminal matters. For instance, when the accused person appeared for plea taking on $02/02/2024$ , it was not indicated in which language the accused person understood or speaks. Further she was not asked whether she understood the charges that had been preferred against her. - $[4]$ From the lower Court record, it is clear that the language in which the proceedings were interpreted or translated to the accused person to follow was not indicated. Further, it was not shown whether the accused person understood the English language before she took plea. This was in total violation of Article 28(3) (b) of the Constitution which provides that;

"Every person who is charged with a criminal offence shall be informed" immediately, in a language that the person understands, of the nature of the offence"

$[5]$ It is desirable that a trial court should indicate the language in which the charge has been read and explained, and the proceedings interpreted to the accused. It assists the appellate courts in discerning whether the appellant/accused person fully understood the nature and consequences of the proceedings against her. See Sebuliba Siraji Vs Uganda CACA No. 0319 of $2009.$

In the circumstances of this case, the failure by the trial Court to explain the charges in a language the accused person understood was fatal as it could not be established whether the accused person understood the nature and the consequences of the proceedings. This violated her right to a fair hearing under Article 28(3) of the Constitution.

SALLWING

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$[6]$ Secondly, the lower Court proceedings show that when the accused person appeared on $09/02/2024$ , she admitted the charge and a plea of guilty was entered. At this point I wish to state that it is not clear what the accused person pleaded to as the charges were not read and explained to her again. This was in violation of her right to a fair hearing under Article $28(3)$ of the Constitution. The procedure adopted at best was improper and contrary to the rules.

Further the Court record indicates that when the prosecution was called on to state the facts of the case. He stated that facts are as the particulars of the charge sheet. The prosecution did not state the facts as required which was contrary to the proper procedure as set out in Adan Vs. Republic [1970] EA

## $24$

It is the duty of the Court to record in detail the facts as narrated by the prosecutor where a plea of guilty is entered. See **Uganda Vs. Kefa Jelala** [1979] HCB 88.

The implication of the failure to record the facts is that the plea of guilty was equivocal, defective, irregular and unlawful as the facts were never read to the Applicant. It is mandatory that the facts as recorded be narrated to the offender before conviction in order to indicate his or her agreement to the facts constituting the offence. This was a fatal lapse in the proceedings leading to the conviction and sentence. See the case Lagum Cony Vs Uganda Criminal Appeal No.003 of 2019.

Lastly, from the above proceedings, the accused person was sentenced to a $[7]$ compensation of UGX. $600,000/$ = in default to spend 09 months in prison. According to The Constitutional (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, paragraph 10 provides for the sentencing options which include death penalty, imprisonment for life, imprisonment for a specified period of time, a fine, community service, probation, a caution and discharge without punishment and any other lawful sentence option.

DAMMARBA

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Under Section 197 of the Magistrates Courts Act *(MCA)*, a compensational order is in addition to any other lawful punishment. Thus the power of court to award compensation to victims under Section 197 of the MCA is not ancillary to other sentences but is in addition thereto.

Therefore under the law, a compensation order is not a punishment and it is $[8]$ not a sentencing option. I have not been able to find any provision of the law that suggest otherwise. My attention has been drawn to the provisions of Section 198 of the MCA that provides for recovery of costs and compensation and imprisonment in default however the said provision relates to recovery of costs or compensation where a distress may be issued under Section 182 of MCA and in default the provision of Sections 183 or 186 and 181 of the MCA relating to sentences of imprisonment in default come into effect.

Further I have looked at Section 199 of the MCA that the Court relied on which empowers Court to award expenses or compensation out of a fine. It provides that;

"Whenever any magistrate's court imposes a fine or a sentence of which a fine forms part, the court may, when passing judgment, order the whole or *any part of the fine recovered to be applied*—

(*a*) *In defraying expenses properly incurred in the prosecution;*

- (b) In the payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of *the court, recoverable by civil suit.*" - The above provision clearly confers a discretion on Court to order as to how $[9]$ the whole or any part of fine is to be applied. The application of the above provision is a statutory requirement that a fine is imposed and thereupon make further orders as to the disbursement of the said fine in the manner envisaged therein. If no fine is imposed Subsection (1) of Section 199 of the MCA has no application.

SMANNAGO

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This brings us to the most crucial question as to whether there was a sentence passed by the Magistrate Grade 2 at Ntusi. My answer to this question is that there was no sentence passed and if the impugned orders passed as a sentence they were illegal. This is so because a compensational order is not a sentence and Imprisonment in default of payment of a compensation is not a punishment prescribed under the law.

- $[10]$ To make matters worse, the charges against the accused person emanated from a loan agreement entered into with the complainant which was payable within 30 days. This was clearly a civil transaction which ought to have been governed by the civil laws. This Court has on several occasions held that criminalizing civil disputes is an abuse of Court process and perverts the course of justice. See Okello Oris Atana Vs Uganda HCCA No. 0035 of 2013 - In the premises, I find the proceedings, the conviction and the sentence passed $[11]$ by the Magistrate Grade 2 at Ntusi to be a nullity, irregular and illegal. The conviction and the sentence passed are quashed and set aside. Given the circumstances, a retrial of this matter is not possible for the injustice meted out on the accused person by the lower Court. The accused person is released immediately.

## I so order.

Ruling signed and delivered at Masaka this 16th day of December, 2024

LAWRENCE TWEYANZE JUDGE. 16th December, 2024.