Otim and Another v Uganda (Criminal Revision Application 32 of 2022; Criminal Revision Application 42 of 2022) [2023] UGHCCRD 92 (8 August 2023)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL DIVISION CONSOLIDATED CRIMINAL REVISION APPLICATION NO.042& 032 OF 2022 (Arising from Criminal Case No. Kla 08. Cr. Co.499 Of 2018) 1. OTIM ALFRED JUNIOR 2. IKANZA GODFREY -------------------------APPLICANTS VERSUS UGANDA----------------------------------------------RESPONDENT**

## **BEFORE HON: JUSTICE ISAAC MUWATA RULING**

The applicants brought this application for revision seeking to stay the proceedings in Criminal Case No. NO. KLA 08. CR. CO.499 OF 2018 at the LDC Magistrates Court pending the determination of Civil Suit No.163 of 2019 and Civil Suit No.389 of 2017 in the High Court (Land Division).

The applicants contend in their affidavits in support that the subject matter in the criminal proceedings is the same as that in Civil Suit No.163 of 2019, and Civil Suit No.389 of 2017 in the High Court (Land Division) and therefore there is a likelihood of conflicting judgements of the High Court (Land Division).

I have considered the application and the averments in the affidavits and all the submissions. The issues that arise are whether this court can stay the criminal proceedings in criminal Case No. NO. KLA 08. CR. CO.499 of 2018.

The revisionary powers of the High Court are provided for under section 48 and 50 of the Criminal Procedure Code Act. It is also trite law that the revisionary jurisdiction of the High Court should only be exercised where there are glaring acts of omissions but should not be used as a substitute for an appeal.

In other words, parties should not argue an appeal under the guise of a revision. One can therefore say that in an application for revision, the main question should be whether substantial justice will be done or whether any order made by the lower court should be interfered with in the interest of justice

Turning to the issue at hand, the duty of this court in an application for revision is to satisfy itself as to the correctness, legality, or propriety of any finding, sentence or order recorded or passed.

The applicants herein are charged with the offence of Criminal Trespass contrary to section 302 of the Penal Code. The prosecution alleges that the applicants trespassed on Land comprised in Block 12 Plot 789 Land at Kisenyi Market View Zone, Central Division in Kampala District. It was their contention that there is a civil suit in respect of the same subject matter pending before the High Court Land Division.

Before the matter could be fixed for ruling, counsel for the respondent State Attorney Amerit Timothy brought to the attention of this court a certified copy of a judgement and a decree from High Court (Land Division) vide **Nankoomi Prossy & Anor Vs Alice Makanga & Anor consolidated Civil Suit No.163 of 2019** now consolidated with Civil Suit No.311 of 2019 delivered by Hon: Justice Henry Kaweesa.

In response to this new development, counsel for the applicants stated that the judgement of the High Court does not address the issues of criminal trespass for which his clients were charged with. He also stated they intend to appeal against the decision of the High Court.

I have since perused this Judgement from the High Court (Land Division) and it indeed touches on Land comprised in Block 12 Plot 789 Land at Kisenyi Market View Zone, Central Division in Kampala District the very subject matter of this revision application. This is not disputed by counsel for the applicants.

It's my observation that since the High Court Land Division which was handling the civil aspect of this revision application has already pronounced itself on the matters regarding the suit land, it would be improper for this court to stay proceedings in Criminal Case No. NO. KLA 08. CR. CO.499 OF 2018 on the basis of a civil suit that has already been determined by a court of concurrent jurisdiction.

The application for revision and the reliefs sought thereunder have been overtaken by events and it would be unnecessary to proceed with it in whichever manner. There is nothing pending that would have ordinarily stopped the trial court from proceeding with the trial. Similarly, the possibility of conflicting judgments no longer exists in light of the judgement of the High Court (Land Division).

The argument by counsel for the applicants that they intend to appeal the decision of the High Court (Land Division) is well within their right, but this court cannot on the basis of that intended appeal stay the proceedings of the lower court that has no bearing on this application.

It is therefore necessary to allow the trial court continue with the trial unhindered and come to its own conclusions regarding the offence the applicants are charged with. It is also in the interest of both parties and in the interest of justice that the Criminal Case No. NO. KLA 08. CR. CO.499 of 2018 is expeditiously concluded without any further delay.

The application is accordingly dismissed; the lower court file is hereby forwarded back to the trial court for conclusion of the trial.

I so order.

**8/08/2023**

**JUDGE**