Uganda v Asiimwe (Civil Appeal 31 of 2023) [2024] UGHC 853 (29 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL APPEAL NO. 031 OF 2023 (ARISING KMG-00-CR-CO-30-2019)**

**UGANDA ::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**ASIIMWE SHABAN :::::::::::::::::::::: RESPONDENT**

### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

### **JUDGMENT**

This is an appeal against the judgment and orders of H/W Kirya Martins, the then Magistrate Grade 1 of the Chief Magistrate's Court of Kamwenge, delivered on the 24th of May 2019, wherein the respondent was found guilty of the offence of assault occasioning bodily harm, sentenced to a fine of UGX. 200,000, and ordered to pay compensation of UGX 100,000 to the complainant.

#### **Background**

The respondent was charged with the offence of assault occasioning bodily harm, contrary to section 236 (now section 219) of the Penal Code Act Cap. 128. It is alleged that on the 23rd day of December 2019, at Busingye Trading Centre, Bukonderwa Cell, Kitonzi Ward in Kamwenge District, the respondent unlawfully assaulted Bakundakabo Pauline, thereby causing her actual bodily harm.

The trial magistrate found the respondent guilty as charged and sentenced him to a fine of UGX. 200,000. The trial court also ordered the respondent to pay compensation of UGX. 100,000 to the complainant.

Being dissatisfied with the orders of the trial magistrate, the complainant filed this appeal. No memorandum of appeal was filed stating the grounds or particulars of the matters of law or fact the court appealed from is alleged to have erred.

## **The decision of the Court**

I take note of the fact that criminal proceedings against the respondent were instituted by the Director of Public Prosecutions (DPP) who should have filed and signed the notice of appeal.

Section 54 of the Criminal Procedure Code Act Cap. 122 is to the effect that where an appeal or an application for revision is made by the DPP, the notice or application, as the case may be, shall be signed by him or her or by such other person as he or she may authorize either generally or specifically for that purpose.

There is no express permission that was given to the complaint to file and sign the notice of appeal on behalf of the DPP. In the absence of any expression permission to the complainant to sign the notice of appeal, I find this appeal to have been irregularly filed.

Be that as it may, the respondent herein was convicted, and the only probable appeal would be against the sentence. Never mind that no grounds of appeal were filed to show this court which particulars of the matters of law or fact, the court appealed from is alleged to have erred.

Interestingly, the DPP is allowed to appeal against an acquittal and not sentence *(see: section 204(5) of the Magistrates Court Act Cap. 19).*

It is trite that the right to appeal is a creature of the statute and in the absence of any statutory provision of the law allowing the DPP to appeal against the sentence, this appeal cannot be sustained.

Resultantly, I find this appeal to be incurably defective and it is hereby dismissed.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**