Uganda v Sekatuka (Criminal Revision 10 of 1995) [1995] UGHC 55 (19 December 1995)

THE REPUBLIC OP UGANDA IN THE HIGH COURT OP UGANDA - AT GULU CRIMINAL REVISION NO. 10/95

(Original Criminal Case No. TRIG 290/95) Uganda ..................versus ..................... Ben Selcatulca. Before: The Honourable Mr. Justice G. M. Okello.

ORDER

The accused was convicted on his own plea by a Magistrate Grade I Gulu of using a motor vehicle for the carriage of Passengers for hire or reward without a licence contrary to section 113 (1) (a) of the TRSA '70. He was then sentenced to six months imprisonment or to a fine of shs 75,000/= in lieu thereof.

That order of sentence is contrary to what the section which created the offence provided. That section provided for a fine not exceeding 5,OOo/= or to a term of imprisonment not exceeding <sup>2</sup> years or to both. That section thus gives to the court power to choose the penalty to impose from those prescribed by the section. The magistrate could choose to impose a fine which must not exceed 5,000/= or to impose a term of imprisomentt which should also not exceed two years or to impose both a fine and imprisonment all of which must be within the range . prescribed by that section.

In the instant case, the -trial magistrate by his order gave to the accused power to choose whether to serve a term of imprisonment of *<sup>6</sup>* months or to pay a fine of 75,000/=. He chose to pay the fine. This was contrary to the meaning of the section which created the offence. The section did not give power to an accused to choose his sentence.

The Resident Senior State Attorney by his letter ref <sup>2</sup> RSA/N/GK/12/PAP dated 15/12/95 agreed that the order of sentence made by the trial magistrate was illegal for non compliance

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with the section which erected the offence. He did not wish to "be heard in the event of a revision order being made.

As already pointed out here earlier, that order of sentence imposed by the trial magistrate is illegal and can not be allowed to stand. It is set aside and in its place it is substituted the following order

- (1) Sentence Accused fined shs 5,000/= or in default to serve <sup>1</sup> month imprisonment. - (2) Excess shs 70,000/= paid by the accused as a result of the order made by the magistrate be refunded to the accused.

0- GJ-L 'okello

Resident Judge Gulu. 19/12/95.