Uganda v Olinga (Criminal Session 334 of 1989) [1991] UGHC 50 (17 May 1991)

\Vve y\ov>. W. SoVnce

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA GULP CRIMINAL CASE NO. MG.jj4/89 REVISION NO.34/91

UGANDA ::::::::::::::::::::::::::: :::::::::::::::::: PROSECUTOR VERSUS

ROBERT OLINGA ::::::::::::::: :::::::::::::::::::::::: : ACCUSED

BEFORE: The Hon. Mr. Justice G. M, Okello:

The accused was charged with Receiving or Retaining stolen Property contrary to section 289(1) of the Penal Code Act. He pleaded not guilty. At, the commencement of the hearing of the case, the Police prosecutor applied to withdraw the charge against the accused under section 119(a) of the MCA[\\*](#page-0-0) 170 on the ground that the accused and the complainant had reconciled and that the complainant had thereby lost interest in prosecuting the case. The trial Magistrate however refused the application for withdrawal of the case and acquitted the accused under section 125 of the MCA,-70. \ <sup>V</sup>

<span id="page-0-0"></span>The Chief Magistrate of the area forwarded the record of the proceedings in the case to this court for a possible revisional order on the ground that the order of acquittal under section <sup>125</sup> of the MCA[1](#page-0-0)<sup>70</sup> is illegal since no evidence was tendered by the prosecution in support of the charge.

On perusal of the record of the proceedings I am of the view that the refusal by the trial Magistrate to allow the application for

i . . ....

withdrawal was- no-t--justtried'as~ there was no reason assigned for it. Section- <sup>1</sup> 2\$ of the "MCA\* <sup>70</sup> can only come into play after the close of the prosecution case. This closure can come about either wheh the prosecution has. called all the witnesses it wants to call and closed its case or when it closed its case by offering no evidence.

*2*

In the instant case, there was no closure of the prosecution case and the trial Magistrate was clearly wrong to have dismissed the case and acquitted the accused under section 125 of the MCA\*70. The acquittal is clearly wrong and I agree with the Chief Magistrate on this. However in view of the provision of section 3^1(l)(b) of the Criminal Pocedure Code this court cannot revise the order of acquittal.

G. M. Okello JUDGE .

17/5/91