Wamboya Abdu Gafuli and Another v Uganda (Criminal Appeal No. 029 of 2024) [2025] UGHC 455 (26 June 2025)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

#### **CRIMINAL APPEAL NO. 029 OF 2024**

## **(ARISING FROM MBALE CHIEF MAGISTRATES COURT CRIMINAL CASE NO. 233 OF 2022)**

#### **1. WAMBOYA ABDU GAFULI**

# **2. WAMBOYA ABDU MANAFI :::::::::::::::::::::::::::::::::::::::::::APPELLANTS VERSUS**

#### **UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## **BEFORE: HON. JUSTICE LUBEGA FAROUQ JUDGMENT**

#### 1. **Introduction**

2. The Appellants were charged with the offence of threatening violence contrary to section 81 (a) and 81 (b) [now section 77] of the Penal Code Act Cap 128.

### 3. **Background:**

- 4. The particulars of the offence were that the accused persons and others still at large on the 24th day of August, 2022 at Makosi Cell in Mbale City, with the intent to intimidate or annoy Mafabi Ayub, threatened to injure or kill the said Mafabi Ayub. - 5. The charges were read to all the Appellants and they pleaded not guilty. It then became the duty of the Respondent to prove all the ingredients of the offence against the Appellants. - 6. The ingredients of the offence which were framed as issues in the lower court were as follows- - (a) Whether the words were uttered or conduct exhibited that threatened another? - (b) Whether the words were uttered or conduct expressed with intent to intimidate? - (c) Whether the accused persons uttered the words or engaged in the conduct alleged?

- 7. After analysis of the evidence on the court record in relation to the above issues, the trial magistrate found that the prosecution proved all the ingredients of the offence of threatening violence contrary to section 81(a) and 81(b) of the Penal Code Act Cap 120 and accordingly, convicted them. Each of the accused person was sentenced to a custodial sentence of 2 ½ years. - 8. The Appellants were dissatisfied with the above decision and sentence hence, this appeal.

## 9. **Grounds of appeal**

- (a) The learned senior magistrate grade one erred in law and fact when she entertained the matter without geographical jurisdiction. - (b) The learned trial senior magistrate grade one erred in law and fact when she came to a wrong conclusion that all the essential ingredients of the offence had been proved in total disregard of the appellant's evidence. - (c) The learned trial senior magistrate erred in law and fact when she totally disregarded the contradictions and inconsistencies in the Respondent's case. - (d) The learned senior magistrate grade one erred in law and fact when she passed an illegal sentence of 2 ½ years' imprisonment without confirmation from the High Court. - (e) The learned trial senior magistrate grade one erred in law and in fact when she relied on strangers' opinions after allocutus to sentence the appellants to the harsh sentence of 2 ½ years. - (f) The learned senior trial magistrate grade one erred in law and fact when she sentenced the appellants to a manifestly harsh sentence of 2 ½ years in total disregard of the mitigating factors. - 10. The Appellants prayed that the appeal be allowed, the conviction and sentence be set aside and the Appellants be acquitted.

## 11. **Legal Representation**

- 12. Counsel Nappa Geoffrey and Cheptoik Nancy represented the Appellants whereas Counsel Obbo Patrick holding brief for Mugisha Peter (State Attorney) represented the Respondent. - 13. This appeal proceeded by way of written submissions and all parties complied. I have considered them in the determination of this judgment.

## 14. **Duty of the first appellate court**

15. This court is aware of its duty as the first appellate court which is to evaluate all the evidence on the court record considering the fact that it did not get the chance to see the demeanor of the witnesses. That principle was re-echoed in the case of *Fr. Vanansio Begumisa & others V. Eric Tibebaga SCCA NO. 17 of 2002 and Kifamunte Henry V. Uganda SCCA NO. SSCA NO. 10 of 1997.*

## 16. **Analysis of court.**

- 17. I will resolve the grounds of appeal in their chronological order. - 18. Ground No.1: *The learned senior magistrate grade one erred in law and fact when she entertained the matter without geographical jurisdiction.* - 19. Counsel for the Appellants submitted that jurisdiction is a creature of statute as such, it cannot be assumed or expressed on the basis of likes and dislikes of the parties. He contended that geographical jurisdiction is also known as territorial jurisdiction which court has the authority to hear a case based on the location of the relevant facts. - 20. While referring to sections 34 and 35 of the Magistrates Courts Act Cap 19, counsel argued that the evidence of PW1 indicates that Makosi is under the jurisdiction of Namanyonyi police post. PW3, stated that Makosi falls under Northern City Division and the defence testified that, Makosi is in the Northern City Division. - 21. Counsel for the Respondent on the other hand, submitted that the trial magistrate proceeded over a matter that was within her territorial

jurisdiction within the ambit of sections 34 and 35 of the Magistrates Courts Act.

- 22. He argued that the territorial jurisdictions of the Magistrates Court are not applied in total isolation of statutory instrument No.11 of 2024 (The Magistrates Courts (Magisterial Areas and Magistrates Courts) Instrument, 2024. He contended that the instrument empowers the Magistrate Grade One to handle cases within Mbale City as well as Mbale District. - 23. He further submitted that the instrument does not confer any specific court with the territorial jurisdiction to handle cases only arising from Northern Division, Mbale City.

## 24. **Determination of court**

25. Section 35 of the Magistrates Court Act Cap 19 provides that-

*"When a person is accused of the commission of any offence by reason of anything which has been done or of any consequence which has ensued, the offence may be inquired into or tried by a court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued."*

26. In the case of **Matembe V. Yamulinga [1968] E. A 643**, Mustafa J held that-

> *"it will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The Section is not directed against conclusions of the law or fact in which the question of jurisdiction is not involved".*

*27.* I have reviewed the lower court record and noted that the particulars in the charge sheet were that- *"Wamboya Abdul Gafulu, Wamboya Abdul Manasi and others at large on the 24th day of August, 2022 at Makosi Cell in the Mbale City, with intent to intimidate or annoy Mafabi Umar, threatened to injure or kill the said Mafabi Ayub."*

- 28. The said particulars indicate that the offence was committed within Mbale City which falls under Mbale district. - 29. The Magistrates Courts (Magisterial Areas and Magistrates Courts) Statutory Instrument No.11 of 2024, provides for the extent of magisterial areas in Mbale district and Magistrate Courts. Number 107 of the foresaid instrument provides for Mbale City as the extent of Magisterial area and the courts therein includes; Chief Magistrate of Mbale City and Magistrate Grade One Mbale City. - 30. Guided by the above instrument, I agree with counsel for the Respondent that the instant case was handled by a court with jurisdiction. - 31. Ground No.1 is answered in the negative. - *32.* Ground No.2: *The learned trial senior magistrate grade one erred in law and fact when she came to a wrong conclusion that all the essential ingredients of the offence had been proved in total disregard of the appellant's evidence.* - 33. The accused persons were in the lower court charged with the offence of threatening violence contrary to section 81 [now section 77) of the Penal Code Act Cap 128. - 34. Section 77 provides that-

*"Any person who-*

*(a) with intent to intimidate or annoy any person, threatens to injure, assault, shoot or kill any person, or to burn, break or injure any property' or*

*(b) With intent to harm any person, discharge a firearm or commits any other breach of the peace,*

*Commits an offence and is liable, on conviction, to imprisonment for a term not exceeding four years."*

- 35. The ingredients of the offence of threatening violence are therefore as follows- - (a) Words or conduct that threaten the other; - (b) The words or conduct were expressed with intent to intimidate;

(c) The accused uttered such words or engaged in such conduct.

36. I am therefore, going to evaluate the evidence on the court record in relation with the ingredients outlined, to establish whether the trial magistrate erred or not.

## *37. Words or conduct that threaten the other*

- 38. According to the lower court record, the only evidence which was led to establish this ingredient was the evidence of PW4 who was the only eye witness. - *39.* PW4 in evidence in chief testified that- *"On 24th of August, 2022 at around 11:00 am. I was at the building site at Makosi. I saw a motorcycle with three people. There was A1, A2 and another passenger. They came from the main road of Makosi. When they came, they advanced towards me and asked what has brought me there. I did not reply to them. They asked the second time, I did not reply. So, next A2 said to day I have come, someone will die from here. Someone will shed blood today. When I saw A1 with the panga yet they had said that someone is going to shed blood, I told my colleagues at the site to hold the accused persons. The Pangas which were held by both A1 and A2 were carried in the bag. The accused persons walked close to me and I feared they would cut me with the pangas. When the said pangas were pulled out given the said utterances, I knew that death had come to me. I was so scared. I knew I was going to die. I told my colleagues to arrest them and removed the said pangas from them."* - 45. In the case of **Acaya V. Uganda High Court No. 0010 of 2018**, It was stated that mere words are not enough, words must be coupled with an action of causing imminent threat of harm. - 46. From the evidence quoted, it is evident that the Appellants went to the scene of crime or the construction site and went direct to PW4. They asked him what had brought him there and he kept quiet. Immediately, A2 said; "*to day I have come, someone will die from here. Someone will shed blood today."* The question which was asked PW4 by the Appellants, read together with the words quoted above, amounted to a threat which intimated PW4.

- 47. The Appellant did not only utter the said words, but further advanced towards PW4 while in possession of pangas. - *48. The words or conduct were expressed with intent to intimidate* - 49. It is trite that intent can be established from utterances, conduct and the circumstances surrounding the commission of the offence. (See: Acaya V. Uganda. (Supra) - 50. In light of the evidence of PW4 and that of DW1 and DW2 which raised the issue of a land dispute together with the words uttered and the conduct of a companying the words with possession of pangas, it can only be concluded, that the Appellants intended to intimidate PW4. - 51. If that was not the position, the Appellants ought to have approached the construction site in the company of the LC.1 authorities or police, but they did not.

## *52. The accused uttered such words or engaged in such conduct*

- 53. From the evidence of PW4, the offence was committed at 11:00am during broad day light. The complainant and the accused persons were in close proximity with each other. Having that at the back of my mind, there was no possibility of mistaken identification. - 54. The presence of the Appellants at the scene of crime at the particular time, was confirmed by PW1, PW2 and PW3. The Appellants presence at the construction site was further admitted by the Appellants and DW3. - 55. The evidence of PW4 as quoted in the body of this judgment, clearly indicates that the words were uttered by the Appellants who also had pangas in their possession. - 56. PW1, PW2 and PW3 who went at the scene of crime shortly after the incident said, they found the Appellants tied with a rope and there were two pangas. PW5 confirmed that the said pangas were recovered by police.

- 57. The Appellants in their evidence testified that there was a land dispute between them and the person who was constructing on the said land (PW1). DW1 and DW2 further said that because of the dispute, they had instituted a land matter in court. However, if that was the position, this court wonders why they confronted PW1's workers instead of reporting the matter to police or court. - 58. It should be noted that, due to the numerous land wrangles in Uganda today, the public has been repeatedly advised to use Alternative Dispute Resolution methods such as mediation, traditional mechanisms, and courts to resolve their land disputes and avoid such situations. - 59. It cannot be ignored by this court that the kind of confrontation which was initiated by the Appellants, has on several occasions resulted in the loss of many lives in various areas and the same cannot be taken lightly. - 60. In the circumstance, I find that the trial court properly evaluated the evidence on the court record when she found that all the ingredients of the offence had been proved by the Respondent. - 61. Ground No.2 is answered in the negative. - 62. Ground No.3: *The learned trial senior magistrate erred in law and fact when she totally disregarded the contradictions and inconsistencies in the Respondent's case.* - *63.* In the case of **Kayinamura V. Uganda (Criminal Appeal No. 0124 of 2022),** it was held that "*inconsistencies or contradictions which are substantial and fundamental to the main issues in question before the court must not be undermined. Trivial or minor inconsistences on the other hand, do not necessarily undermine the witnesses' credibility or vitiate a conviction".* - 64. In the instant case, the main issue related to whether threatening word were uttered by the Appellants and whether any conduct of the Appellants accompanied the threatening words. I have reviewed the evidence of PW4 who was the only witness to the said act. He was consistent in that regard.

- 65. The only contradiction observed by this Court pertains to who exactly tied the Appellants with the rope. PW4 contradicted himself on this point; he initially stated that he instructed the workers to tie the Appellants out of fear of harm, but later claimed that the Appellants were tied on the instructions of PW3. - 66. About the presence of the pangas, the evidence of PW4, PW1, PW3 and PW5 was enough to confirm that fact. - 67. In the upshot, I find that the contradictions and inconsistencies were minor and were not fundamental to the main issue. - 68. Ground No.3 is answered in the negative. - 69. Ground No.4: *The learned senior magistrate grade one erred in law and fact when she passed an illegal sentence of 2 ½ years' imprisonment without confirmation from the High Court.* - 70. Section 173 (1) ( 2) (a) of the Magistrates Courts Act Cap 19 provides that- *"Where any sentence to which this section applies is imposed by a magistrate's court, other than by a magistrate's court presided over by a chief magistrate, the sentence shall be subject to confirmation by the High Court.*

*(2) this section applies to-*

- *(a) a sentence of imprisonment for two years or over..."* - 71. The above provision makes it mandatory for a sentence of imprisonment for two years and more, imposed by the magistrate grade one to be forwarded to the High Court for confirmation. - 72. The provision is salient on who should forward the said file and the time frame within which it should be forwarded. - 73. Counsel for the Respondents submitted that where a magistrate has passed an imprisonment sentence of more than two years and above, the supervisor of the magistrate who is in most cases the chief magistrate is supposed to forward the file to the High Court for it to confirm such a sentence. He argued that at page 25 of her sentencing reasons, the trial

magistrate ordered for the file to be forwarded to High Court to confirm the sentence.

- 74. I have perused the trial court's judgment and noted that at page 25 she stated that- **"file to be remitted to the High Court for confirmation of sentence."** - 75. The foregoing places the fault of failure to forward the file to the High Court for confirmation on the magistrate court. - 76. Nevertheless, since the process of confirmation does not require to review the judgment or automatically set it aside, in the interest of justice, this court cannot declare the said sentence illegal. - 77. However, what can be done, is for this court to order that the file where the said sentence was passed be forwarded to the High Court for confirmation within a reasonable period of time. - *78.* Ground No. 5: *The learned trial senior magistrate grade one erred in law and in fact when she relied on strangers' opinions after allocutus to sentence the appellants to the harsh sentence of 2 ½ years* - 79. Counsel for the Appellants submitted that at page 82 paragraph 6 of the record of proceedings the matter came up for allocutus but the trial magistrate went on to hear evidence of Hajat Madina, Mr. Wafidi Ahmed, Mr. Wabuheya Aliyi and Nabuyobo Muhammad when they all told court that the accused persons told court lies even after testifying. - 80. Section 133 (2) (a) of the Magistrates Courts Act provides that-

*"The court, before passing sentence, may make such inquiries as it thinks fit in order to inform itself as to the proper sentence to be passed and may inquire into the character and antecedents of the accused person and may take into consideration either at the request of the prosecution or the accused person in assessing the proper sentence to be passed such character and antecedents, including any other offences* *admitted by him or her whether or not he or she has been convicted of such offences; but—*

*(a)the accused person shall be given an opportunity to confirm, deny or explain any statement made about him or her, and in any case of doubt the court shall, in the absence of legal proof of the statement, ignore the statement;"*

- 81. The foregoing provision gives the presiding judicial officer discretion to make inquiries as he or she thinks fit as to the proper sentence provided both parties are given a right to be heard. - 82. I have reviewed the lower court record and noted that at page 23 of the record of proceedings, the trial magistrate while relying on section 133 of the MCA stated that-

*"After allocutus and mitigation, court adjourned the matter for sentencing and shortly the sentence could be delivered, the court was flooded with people who appeared before court and sought audience of court. These included elderly biological mother to the accused persons a one Hajati Madina, the clan chairman a one Nabuyobo Mohammed and the treasurer Board of Governors, Semei Kakungulu High School Mbale. These people all appeared before court and submitted that whatever the accused persons had told court in allocutus were all lies and these accused persons were just misleading and telling lots of lies to court."*

- 83. Following the guidance under section 133 above cited, the trial magistrate did not commit any error in my view, when she listened to the views of people who knew the Appellants. - 84. The trial magistrate further stated that-

*"… this court having taken into consideration the aggravating and mitigating factors, I hereby sentence both accused persons, both A1 and A2 to a custodial sentence of imprisonment for 2 years and a half…"*

- 85. The above indicates that, although the trial magistrate listened to the views of Hajati Madina, Nabuyobo Mohammed and others, she did not consider them, but rather relied on the aggravating and mitigating factors to sentence the Appellants. - 86. Ground No. 5 is answered in the negative. - *87.* Ground No. 6: *The learned trial senior magistrate grade one erred in law and fact when she sentenced the Appellants to a manifestly harsh sentence of 2 ½ years in total disregard of the mitigating factors.* - 88. Since the sentence of 2½ years imprisonment is still subject to confirmation, as discussed under Ground No. 4 of this judgment, a determination of this ground at this stage would be prejudicial to that process. Accordingly, this ground must fail. - 89. In the final result, this appeal is dismissed in the terms below- - (a) The judgment and sentence of the trial court is upheld. - (b) The file of the lower court where sentence was passed shall be forwarded to the High Court for confirmation within 7 days from the date of this judgment.

I so order.

**……………………………….. LUBEGA FAROUQ Ag. JUDGE**

*Judgment delivered in the open court in the presence of the Appellants and the Advocates on 26th day of June, 2025*