Uganda v Businge (Criminal Session Case 159 of 1991) [1993] UGHC 77 (23 February 1993)

THE REFUBLIC OF UGANDA IN THE HIGH COULT OF UGANDA AT M. SAKA HOLDEN LT MASAKA CRIMINAL SESSION CASE NO. 159 OF 1991 UGLNDL $\cdots\cdots\cdots\cdots\cdots\cdots\cdots$ **PROSECUTOR VERSUS**

$\cdots$ JOHN BUSINGE ........... ......... ACCUSED

## BEFORE: HONOURISLE MRS. JUSTICE M. KIREJU

## REASONS FOR SENTENCE AND SENTENCE:

The accused person John Businge, was originally indicted for Robbery contrary to sections 272 and 273(2) of the Penal Code Let which was later reduced to a lesser charge of receiving stolen property under S. 298(1) of the Penal Code Act. The accused pleaded guilty to the charge and was convicted.

The facts narrated by the State Counsel were that the deceased Fatiya Namagembe was a resident of Kazoba village in Masaka District, she had been previously married to George William Miki alias Kasuja. When their marriage broke they developed grudges as Akiki suspected the deceased to be practicing witchcraft against his acquired wife. On the night of 18th and 19th October, 1987 the deceased was attacked in her house by unknown assailants who speared her to death and robbed her one blanket, one radio and one bicycle. George William Kasaija was highly suspected to have been among the killers because of the existing grudge. He was consequently arrested by RCs and upon arrest he admitted he had perticipated in the killing. He also revealed that he had taken the property to the home of the accused namely John Businge. When RCs and Police went to the home of the accused they recovered the st len property belonging to the deceased. When accused had gone to visit (Kasaija) Kasaija, he/was arrested on suspicion and he said he had

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entrusted the property to accused and thatsv/hat ho- revealed to the authorities upon arrest. ' They were both arrested and taken to lolice -Station but Kasa.ija, first suspect-died in custody at Scmbab'. J.c. '•

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The accused uas forwarded to Masaka Police•Station and was accordingly charged., <sup>u</sup>

Mrs. Lwanga counsel for the State submitted that, the accused was a first offender. The offence committed cariios" a maximum Sentence of 14 years, he Jias been on remand for over 5 years, counsel prayed Court to exercise its discretion whon sentcncing .

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Mr. Kamugunda, counsel for the accused submitted that the accused was now aged 30 years. By the time of his arrest ho was married with 2 children who were"residing in Toro . • 'r'-- . where he had left the;.:. Counsel submitted that the ajccuscd was srvis'fct^rarid it was difficult for him to know that the property brought by the host was stolen. Counsel further submitted that the accused nas boon on remand for 6 years' that he had been told by the Prison authorities and the accused that he (accr.jod) is very sick. Counsel submitted that he could not tell from the bundle of medical forms ■\ what the accused was suffering from but from looking at his emaciated body, swollen feet lie was sick.

Counsel prayed that taking all the above facts into consideration the accused should be given a lenient sentence so that he can rejoin his family.

From the above submissions the accused io a first offender and has been on remand for more than <sup>5</sup> years. I have had the opportunity to observe the accused in court, although ho said ho was aged 30 years, he looks hardly 20 his yours, he looks sickly aib/oedy looks wasted. Taking the above factors into consideration and especially, the circumstances under which the offence was committed, I am

of the view that it is inexpedient to inflict any punishment.

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The accused is accordingly cautioned under section 118(1)(b) of the Trial on Indictment Decree.

Sgd. M. Kireju<br>Judge.<br>23.2.93. $\mathcal{N}$ $\overline{a}$

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$23/2/93$ : 2.30 p.m.

Mr. Lwanga - for the State.

Mr. Kamugunda - for the accused.

Lecused in the dock.

Mr. Kakoeto - Court Clerk.

Mr. Christopher Lkunze - Interpreter.

Sentence read before the above.

July servi Sgd. M. Kireju Judge. $\frac{23}{2}/2/93$ .

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