UGANDA MARTYRS UNIVERSITY.

1st YEAR 2ND SEMESTER

FACULTY OF LAW

SEMESTER TWO COURSE UNIT: CRIMINAL LIABILITY

OFFENCES AGAINST THE PERSON

30th March 2022

HOMICIDES

This is the killing of another person. The offence will be murder, manslaughter,

infanticide, suicide pacts etc.

Homicides can be lawful and unlawful. It is lawful if is done within the execution of

justice as under Art 22 of the Constitution where a person can be deprived of his or

her life in the execution of a sentence passed in a fair trial by a court of competent

jurisdiction in respect of a criminal offence under the laws of Uganda and the

conviction and sentence confirmed by the Supreme Court.

Homicide is lawful if it is done in defence of property and person as under Section

15 of PCA.

It is also lawful if it is as a result of an accident or misadventure except in cases of

negligence.

If the homicide is unlawful then the offence will either be murder, manslaughter or

infanticide or causing death through reckless acts.

The homicide will be unlawful only if the following occur

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a) If the deceased dies within a year and a day of the act or omission causing death.

S. 198 PCA. The reason for this today according to leading criminal law authors

who submit that in the present state of medical science, the rule can only be

justified on the ground that one who has injured another should not remain

indefinitely at risk of prosecution for murder. Originally the rule was to avoid the

difficulty of tracing the cause of death when there is a long interval between the

infliction of the injury and the death.

In R v Dyson [1908]2 KB 454, the accused inflicted injuries on a child in November

1906 and again in December 1907. The child died on May 5th 1908. The accused

was indicted for manslaughter. The judge directed the jury that they could find

the accused guilty if they considered death to have been caused by the injuries

inflicted in November 1906. The Appeal Court set aside the conviction, holding

that “it is undoubtedly the law of the land that no person, can be convicted with

manslaughter where the death does not occur within a year and a day after the

injury was inflicted, for in that event, it must be attributed to some other cause.

Time runs from the date of the infliction of the injury and not from the date of the

accused’s act. If X poisons Y’s drink on May 6th 2018 but Y drinks it on 10th May 2018

which poison affects him gradually, then X is guilty of homicide if Y dies before 11th

May 2019.

b) The killing must be unlawful act

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In Defasi Mugayi v R (1965) EA 607; the appellants had been incited by a chief to

beat suspected thieves to death. Upholding their conviction for murder. The Court of

Appeal stated that none of the appellants could shelter behind the invitation or order

of a chief which they must have known was an unlawful order which they were

bound to obey and they must have known as much as the chief said he would be

responsible and they knew that what they were doing was wrong.

In Paul s/o Mabula Vs R [1953] 20 EACA 207, the appellant killed his wife as a result

of an act intended to kill himself, she endeavouring to save him from cutting his

throat. He alleged that the wound inflicted on his wife was accidental and therefore

there was no malice aforethought. It was held that where as a result of an act by an

accused person intended to kill himself and another is killed, he was properly

convicted of murder even if he did not intend to kill that other person.

c) In the case of a child, if it is born in a living state, S. 197 PCA. That is when it has

completely proceeded in a living state from the body of its mother, whether it has

breathed or not and whether it has an individual circulation, or not and whether

the naval string is severed or not that is to say, a child to be a victim of murder,

the child must be wholly expelled of the mother’s body and it must be alive. The

child, it is commonly said must have an existence “Independent of the mother”.

The tests of individual existence that the Courts have accepted are that the child

should have an individual circulation and should have breathed after birth. But

Park, J in R.Vs. Brayn 1834 said, “It is not essential that it should have breathed at

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the time it was killed as many children are born alive and yet do not breath for

sometime after their birth.” This appears to be more consistent with our section

197.

A question that has not engaged the Court’s mind is the moment at which life

ends i.e. is a victim already dead and therefore incapable of being murdered. Is

the victim in a hopeless condition, and only being kept alive by some apparatus?

The current medical view is that the test is one of brain death and that this can

be diagnosed with certainty.

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Friday 1 April 2022

 PROOF OF DEATH

Proof of a dead body is required for one to be convicted of any of the unlawful

homicides.

A fundamental rule of criminal law and procedure is that no person shall be called

to answer an accusation or be involved in the consequence of guilt without

satisfactory proof of the corpus delicti, either by direct evidence or irresistible

ground of presumption. The facts which form the basis of the corpus delicti

ought to be proved whether by direct testimony or by cogent evidence or by clear

and unforced confession of the party.

This case deals with evidence with regard to the inference of death

In Kimweri vs. R 1 E.A 452, the appellant was charged with and convicted of

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murdering his wife from whom he had been separated and to whom his petition

for divorce had failed. Appellant was ordered to pay maintenance to his wife and

in the meantime, he had a liaison with another woman. The appellant’s wife had

disappeared from her room on a day on which the prosecution alleged that the

appellant had visited her in Moshi (TZ) and a few days earlier, the wife’s father

received a letter purporting to come from one Kamau and stating that the

appellant’s wife had gone to Nairobi with Kamau, had an accident and died. No

such accident on the contrary had happened. It was held that although death may

be proved by circumstantial evidence, that evidence must be such as to compel

the inference of death and must be such as to be inconsistent with any theory of

the alleged deceased being alive, with the result that taken as a whole, the

evidence leaves no doubt whatsoever that the person in question is dead. The

circumstances in the present case raised considerable suspicion that the wife

was dead but did not compel irresistibly the inference of death.

The court said in this case;

“While death may be proved by circumstantial evidence, without evidence as to

the production of the body of the dead person and without any evidence of the

person who saw the body of the dead person and without confession by a person

accused that he caused the death yet the Court asked to find in a murder charge

that a person is dead in a circumstance which we have stated, the evidence on

which the Court is asked to infer the death must be such as to compel the

inference of death and must be such as to be inconsistent with any reasonable

theory of the alleged deceased being alive with the result that taken as a whole

the evidence leaves no doubt whatsoever that the person in question is dead. We

would give as an example of what we mean the case of a person, on a ship in the

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middle of the ocean. Evidence is given that a scream was heard and a splash was

heard, but there is no evidence that any particular person was seen to go

overboard. The ship is searched and subsequently a person to whom evidence is

given that that person was a passenger on that ship is found missing. In those

circumstances although there was no evidence of a body, although no one came

forward and said that the body of the alleged deceased was seen and although

there was no confession by anyone, nevertheless those circumstances are such

as to compel the inference of death.

In the Kimweri case, there were technical problems in the way the evidence of the

relevant circumstances were proved e.g the contents of the Kamau letter were

found inadmissible and the source of the letter was doubted. Court said at Pg

454.

“Earlier we have referred to certain circumstances from which the death is to be

presumed, we have said that even if those circumstances were proved to be the

circumstances in existence still we would not consider that they pointed

compellingly and irresistibly to the wife being dead. We would mention that we

are satisfied that some if not all of those circumstances were proved by evidence

which was inadmissible. As far as the evidence of the letter referring to the

accident is concerned, what happened was that a Tanzanian witness gave

evidence of the result of inquiries given in Kenya. From these inquiries, he was

informed that no such accident had happened and no such person is dead. That

evidence was inadmissible. The result is that the lack of truth of the contents of

the letter of November 18 upon which the prosecution so relied in order to prove

the guilt of the appellant had not been proved. We must also mention that the

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evidence of making the letter of November 18 which the appellant had proved, to

be inadmissible evidence. The evidence was that the typewriter expert had

compared the letter in question with a sample handed to him which purported to

come from the typewriter to which the appellant had access. The prosecution did

not call the person who typed that sample. Thus there is no admissible evidence

that the letter was typed on a typewriter to which the appellant have had access.

Finally, the letter itself is to say the least doubtedly admissible. This is a letter

which purports to be addressed to the wife’s father. It should have been

produced in evidence by the father or at least he should have been called to say

that he received a letter and that he handed it to somebody else who

subsequently produced it”

In RV Abdullah 16 KLR 117, the accused was charged with the murder of the

husband of the second accused. It was proved that L had been missing from the

home. The first accused had resided with L and his wife since 1933. Two

brothers of the deceased had made certain inquiries and gave evidence of an

inconclusive character of statements made between the accused to them. L’s

certificate was found in his hands. No body or part thereof could be discovered

and there was no confession. It was held that where there is no evidence of

corpus delicti and the confession of the accused, such confession in the absence

of evidence of confirmatory circumstances is not sufficient to satisfy a

conviction of murder or manslaughter.

MURDER

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 This is provided for under S. 188 and the ingredients of this offence include; -

death of a person, accused caused death, death caused with malice

aforethought, took place between 1yr and a day.

The following cases depict the offence of murder and its main element of

malice aforethought

 Woolmington v. DPP [1935] clearly depicts the offence of murder and its main

element which is malice afore thought.

 Uganda v Musana & 2 Ors (1985) H.C.B 20; malice aforethought and deadly

part of the body.

 Sentongo & Anor v Uganda (1975) H.C.B 239; malice aforethought and failure

to prove intention.

 Uganda v Muherwa (1972) EA 466; exceeding the long limits of arrest and

killing someone.

Malice aforethought ( S.191 PCA)

This is the mens rea for the offence of murder, this is a technical term with a

technical meaning different from the ordinary meaning of the words, the phrase is a

mere arbitrary symbol for the malice may have nothing really malicious and need

never be really aforethought. Thus a parent who kills a suffering child out of motives

of compassion is malicious for this purpose, and there is sufficient aforethought of

an intention to kill even if it is formed only a second before the fatal blow is struck.

Neither ill will nor premeditation is necessary.

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The meaning of the term is of utmost importance for it is the presence or absence of

malice aforethought which determines whether unlawful killings is murder or

manslaughter. In R vs. Cunningham [1957] 2 Q B

396 It was stated that malice is either an actual intention to do the particular kind of

harm or recklessness as to whether such harm will occur or not.

Under Section 191 PCA; malice now consists of an intention to kill any person

whether such person is the person actually killed or not i.e. express malice.

It also comprises of knowledge that the act or omission, causing death will probably

cause the death of some person whether such person is the person actually killed or

not although such knowledge is accompanied by indifference whether death is

caused or not or by a wish that it may not be. This is what is referred to as implied

malice.

The Supreme Court has had opportunity recently to determine the scope of section

191 of the Penal Code Act, in the celebrated case of Nanyonjo Harriet and Anor vs.

Uganda. Crim. Appeal No 24 of 2002, decided in 2007. The Court speaking through,

Mulenga JSC criticized the Court of Appeal for basing a conviction for murder on

unproved evidence suggesting an intention to cause grievous bodily harm. In a

characteristically robust judgment, Mulenga JSC, held that the judicial precedents of

DPP vs. Smith [1961] AC 290 and R vs. Tubere [1945] EACA 63, which held that

malice aforethought is defined as an intention to commit an unlawful act to any

person , foreseeing that death or grievous bodily harm is the natural and probable

result were irrelevant to the instant case because, unlike the UK and Kenya from

which the precedents originate, Uganda amended its code in 1970 and removed from

the relevant section 186, (now 191) any reference to an “intention to cause grievous

harm” and “knowledge that grievous harm will probably be caused”.

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Courts have also been very clear, that in cases of homicide, the intention and

knowledge of the accused person at the time of committing the offence is rarely

proved by direct evidence. The Court finds it necessary to deduce the intention or

knowledge from the circumstances surrounding the killing, including the mode of

killing, the weapon used and the part of the body assailed. See Nanyonjo Harriet vs.

Uganda and Uganda vs. Dr .Aggrey Kiyingi and two others.

Express Malice

This describes an intention to kill. Provided such an intention is proved it matters not

whether the person killed is the one intended or some other person. Thus, if robbers

lie in wait for A with the intention of killing him, it is still murder in fact if they kill not

A but B. Similarly, where a husband gives a poisoned apple to wife and the wife

hands the apple to the child, the husband is guilty of murder. Where a person

intending to kill himself kills another it is still murder. See Paul s/Mabula Vs R, where

the Court of appeal gave two reasons for this view.

a) Suicide is a felony even though it cannot be prosecuted so that the killing is a

killing in the course of committing a felony entailing violence.

b) It is treated as transferred malice resulting into transferred murder.

If there is a fight with many participants and one man dies, each of the participants

will be guilty of murder if it can be proved that each had the common intention to kill.

Common intention may be formed at the outset of the crime expedition or it may

arise spontaneously on the spur of the moment.

The Court of Appeal for East Africa has held that common intention generally implies

premeditated plan, but this does not rule out the possibility of a common intention

during the course of events though it might not have been present to start with. See

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Wanjiru vs. R Vol. 22 EACA 521.

Thus where a gang sets out together to kill and a person is killed by one member of

the gang, all members of the gang are guilty of murder, where three persons set out

armed with lethal weapons with a common intention of stealing goats and one of

them in order to fulfil their purpose kills the custodian of the goats, all are liable to be

convicted of murder.

1. Implied Malice

It is murder where a person does an act causing death that is essentially likely to kill

and which he knows is likely to kill although there is no evidence of express malice.

Thus, if a person sets fire to a house knowing or having reasonable grounds for

believing that a person is asleep inside, he is guilty of murder for the death, for he

knows that the probable consequence of his act will be to cause death. lt is irrelevant

whether the person against whom the act has been directed is the person actually

killed or whether it is somebody else provided that there was foresight of the

consequences of his acts. It is also irrelevant that the accused did not want to cause

death.

In Hyman vs. DPP, the appellant set fire to a dwelling house by deliberately pouring

about ½ gallon of petrol. The house contained four persons presumably asleep. She

did nothing to alert them of the danger she had put them in. Her act was that of

jealousy against the owner of the house whom she believed to be engaged to a man,

she had temporarily discarded temporally discarded. Two girls died due to the fire.

Her defence was that she intended to frighten the lady off the village and she did not

intend to cause death or bodily harm. The issue was whether death resulted from the

direct intention to kill or willful doing of an act of which death is a probable

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consequence. It was held that the appellant was guilty of murder when she set fire to

a house, she should have realized that it was highly probable that one or more of the

inmates would suffer serious bodily harm in consequence of her act not limited to

harm of such nature as to endanger life.

In R vs. Serne, (1887) 16 Cox 331, it was held that a person who sinks a ship at sea

of his own does not escape liability for the drowning of passengers by hoping that

they will be picked by a passing vessel. This is because a man is presumed to know

the natural and probable consequences of his acts unless the contrary is proved.

In Hull vs. R 1664, a workman, after shouting, ‘stand clear”, threw down a piece of

timber from a house two stories high. All the workmen, below moved except for one

who was killed. It was held that “when a workman flings down a stone or piece of

timber into the road and kills a man, this may either be misadventure, manslaughter

or murder, according to the circumstances under which the original act was done. If

it were in country village where there are a few passengers and he calls out all

people to take care it is a misadventure only, but if you were in London or other

popular towns where people are continually passing it is manslaughter, though he

gives loud warning and murder if he knows of their passing and gives no warning at

all.”

Knowledge that death is likely to result is enough.

In Mongola Vs. R [1963] R and N 291, the appellant abandoned his seven months

child in a thicket sufficiently far from the village so that the baby’s cries could not be

heard and in such a place that a search would not readily discover it. In upholding his

conviction for murder, the Court applied the principle in R vs. Ward. In this case the

judge had directed a jury that when the prisoner did the acts he must as a reasonable

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man have contemplated that death or grievous harm was likely to result. He was

guilty of murder. In the case, the appellant as a reasonable man must have known

that death or grievous harm would probably befall a child abandoned in such a

remote area.

Wednesday 6th April 2022

MANSLAUGHTER

Under section 187 and 190 PCA, a person who by an unlawful act or omission,

causes the death of another person commits the felony of manslaughter and on

conviction is liable to be imprisoned for life meaning that imprisonment for life is the

maximum sentence available and therefore anything less than life imprisonment

may be imposed depending on the circumstances of the case.

For the purposes of manslaughter, unlawful omission is an omission amounting to

culpable negligence, to discharge a duty tending to the preservation of life or health

whether such omission is not accompanied by an intention to cause damage or

grievous harm.

According to Smith and Hogan, Criminal Law, manslaughter is a diverse crime,

covering all unlawful homicides which are not murder. A wide variety of types of

homicide fall with this category, but it is customary and useful to divide

manslaughter into two main groups which are designated “voluntary” and

“involuntary” manslaughter respectively. The distinction is that in voluntary

manslaughter. D may have the malice afore thought of murder, but the presence of

some serious grade of homicide, where these circumstances are present, and then D.

may actually intend to kill and do so in pursuance of that intention yet not be guilty of

murder.

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At common law voluntary manslaughter was confined to circumstances of

provocation, but under the penal code, it is voluntary manslaughter in circumstances

of a suicide pact. See s. 195.

Involuntary manslaughter includes all varieties of unlawful homicides which are

committed without malice afore thought. There is a vague borderline between

manslaughter and accidental death. In Andrews vs. DPP [1937] AC 76 at 581, [1937]

2 ALLER 552 Lord Atkin said.

“Of all crimes, manslaughter appears to afford most difficulties of definition, for it

concerns homicide in so many and so varying conditions. The law recognizes murder

on the one hand based mainly, though not exclusively, on an intention to kill, and

manslaughter on the other hand, based mainly, though not exclusively on the

absence of intent to kill, but with the presence of an element of “unlawfulness” which

is the elusive factor.

This “elusive factor” is obviously difficult to define: but it would seem to comprise at

least two, and perhaps three, varieties of fault.

(i) An intention to do an act which, whether D knows it or not, is unlawful and

dangerous in the sense that it is likely to cause direct personal injury , though not

necessarily serious injury.

(ii) Where D does an act which creates an obvious and serious risk of causing

personal injury to another-

a. Not giving thought to the possibility of there being any such risk or

b. Having recognized that there was some risk involved, going on to take it.

(iii) An intention to do an act, or to omit to act where there is a duty to do so being

grossly negligent whether death or serious personal injury is caused.

Manslaughter is generally distinguished from murder by the absence of malice afore

if-.

a) There is such provocation to reduce the offence of murder to manslaughter.

(S.192 & S.193 PCA)

b) There is excessive use of force in defence of person or property.

c) There is an intention or negligent omission to perform a duty recognized by the

law of homicide.

d) There is criminal negligence.

It is manslaughter where death results from an unlawful act directed against the

person and involving a considerable risk of injury but which no reasonable man

would foresee as likely to cause death or grievous harm.

See R vs. Larkin 1943 Vol. 29 Cr. App 18 and R vs. Church (1965)2 WLR 1220, the

Court stressed that proof of mens rea is essential to manslaughter in regard to

dangerous acts against the person. Edmund J. said that for a verdict of

manslaughter to follow, the unlawful act must be such as all sober and reasonable

people would inevitably recognize must subject the other person to at least the risk

of some harm resulting there from although not serious harm.

It is manslaughter to intentionally or negligently omit to perform a legal duty tending

to the preservation of life or health so that death results. It is immaterial whether

such an omission is or is not accompanied by an intention to cause death or

grievous bodily harm.

Indeed Chap. 19 of the PCA imposes duties and responsibilities upon specified

persons aimed at preservation of life and health e.g. the responsibility is imposed on

a person who has charge of one to provide for necessities of life – S. 199.

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A duty is imposed on the head of family to provide all necessities of life to children

under 18 years (S.200). A duty is imposed on masters to provide for servants under

16 years the necessities (S.201). A duty is imposed on doctors and other persons

doing dangerous acts to exercise reasonable care and skill in performing their duties

so as to preserve life and health. (S.202). (S.203) and a duty is imposed on persons

in charge of dangerous things to ensure that they don’t cause danger.

In R vs. Laximidas 1957 R & N 73, the Court said that in a charge of manslaughter by

omission, it is necessary for the prosecution to prove three things.

(i) That the accused owed a duty to the deceased

(ii) That the accused omitted to carry out that duty and that the omission amounted

to criminal negligence.

(iii) That the omission caused the death of the deceased and for this purpose, it is

sufficient to prove that the omission hastened the death.

Such persons who have a duty to preserve life of others include:

(i) Persons having charge of another who is unable by reasons of age, sickness,

unsoundness of mind, detention or any other cause to withdraw from such charge.

(ii) Heads of family having charge of children under 14 years

(iii) Employers

(iv) Medical workers and similar persons in relation to their patients.

Persons in charge of dangerous things have a duty to undertake reasonable care and

precaution to avoid danger to life, safety or health. Dangerous things may include

machinery and animals.

For purposes of manslaughter, the omission may take a variety of forms. In R vs.

Instan (1893) 1 Q B 450, it took the form of denial of food and nursing during the last

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days of the life of an elderly relative. However where the evidence clearly shows an

intention to cause death the wilful withholding of food would be murder.

The omission may be failure to provide skilled medical care or negligent medical

care.

In R vs. Watson (1959) Q B 134, the child of the two accused suffered severe harm

from scalding and died three days later. The parent lived only three doors away from

the doctor’s surgery but didn’t send for the doctor until the child was dead. They

were convicted of manslaughter.

In Tipezenji vs. R [1960] R & N 504, the appellant gave birth to a child which was

accidentally precipitated into a pit latrine. Although the appellant knew the baby was

alive in the latrine, she did nothing to save the child with the result that it died. It was

held that the mother had a duty to try and save the life of a child and the failure to act

amounted to manslaughter.

It was observed that if the mother had wilfully abandoned the child with the intention

to kill it the charge might well have been murder although would be infanticide if the

balance of her mind was upset by the effects of child birth.

Monday 11th April 2022

Suicide Pacts; this is defined in S.195(3) as a common agreement between 2 or

more persons having for its object the death of all of them, whether or not each is to

take his or her own life. There must be a settled intention of dying in pursuance of the

pact.

A person who can prove that he has killed someone else in pursuance of a suicide

pact is guilty of manslaughter not murder that is illustrated in S.195(1). However, a

killing that occurs as a result of a suicide pact is manslaughter and not murder as

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stated in S.195(1).

This case below seems like a suicide pact but it is not coz it is a case of one desiring to

kill himself but accidentally kills another then he is properly convicted of murder.

In Paul s/o Mabula Vs. R [1953] 20 EACA 207, the appellant killed his wife as a result

of an act intended to kill himself, she endeavouring to save him from cutting his

throat. He alleged that the wound inflicted on his wife was accidental and therefore

there was no malice aforethought. It was held that where as a result of an act by an

accused person intended to kill himself and another is killed, he was properly

convicted of murder even if he did not intend to kill that other person.

Common Assaults

Meaning of Assault; apprehending (anxiety or fear that something bad or unpleasant

will happen) force to be applied immediately on the body. The proof of assault is

causing another to apprehend force.

These are provided for under S.235 PCA; any person who assaults another commits

a misdemeanour. Punishment is 1 year imprisonment.

Note; if the assault is not committed in circumstances for which a greater

punishment is provided in PCA.

Examples: When you physically attack a person but don’t cause any scratch on their

body. E.g throwing a book at your employee etc

Assault occasioning bodily harm; provided for under S.236, this is a misdeamour.

Punishment is imprisonment for 5 years. This means the injury/assaults interferes

with the health or body of the victim. For example when one hits another causing

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bruising or causing injuries to the skin.

Medical evidence determines whether it is common assault or actual bodily harm. In

Uganda v Gbonga & 2 Ors Criminal Appeal No.5/2015; the respondents were jointly

charged with one count of assault occasioning actual bodily harm contrary to S.236

PCA and 2 other counts of malicious damage to property and theft. It was alleged

that 3 of them in Koboko district assaulted Wasa John when he had just returned

from his garden, the 3rd respondent who was part of a group that comprised the 1st
nd
and 2 respondent attacked him with a hoe hitting him on the head and back before

running away. He believed that the attack was motivated by a dispute over land that

had existed for the previous 4 to 5 years.

Prosecution was required to prove that there was an unlawful assault of the

complainant and as a result of which the complainant sustained bodily injury.

The Court held that on a charge of assault occasioning actual bodily harm there is

need for medical evidence to ascertain the nature of the harm (see Ug v Eboru s/o

Emeu(1979) HCB 1690), the prosecution did not adduce any medical evidence

although prosecution witnesses testified that soon after the attack Wasa John

received medical treatment for the injury he sustained from Koboko Medical Centre

and in the absence of this medical evidence this element was not proved beyond

reasonable doubt.

Causing /Doing Grievous Bodily Harm

This is provided for under S.219; a person who unlawfully does grievous harm to

another commits a felony and is liable to imprisonment for 7 years. Grievous harm is

defined in S.2 (f) as any harm which amounts to a maim of dangerous harm or

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seriously or permanently injures health which is likely so to injure health or extends

to permanent disfigurement or to any permanent or serious injury to any external or

internal organ.

If this results into death of the injured person within a year and one day, the person

who caused the injury will be presumed to have caused the death of that person and

will be charged with murder.

Uganda v Okech & Anor Criminal Appeal No. 21/2015; In this case, the 2

respondents were jointly charged with the offence of doing grievous harm contrary
nd
to S.219 of the PCA. It was alleged that on 2 November 2014 in Kitgum district,

they unlawfully did grievous harm to one Opwonya Willy. The Prosecution case was
nd
that on the morning of 2 November 2014 a meeting was convened by PW 2 Ochan

Robinson at the home of PW 6 Jerodina to find solution to an alleged affair between

the son of the accused (A1) Okech and the daughter of the complainant. That is A1

beat him with the stone on the head and he fell down. A2 wife of Okech joined him

with kicking and beating him as he lay on the ground. A1 also picked a piece of

broken brick and hit the complainant on the chest as A2 was kicking and beating him.

The respondents assaulted the complainant by inflicting with grievous bodily injury

contrary to S.219 PCA. The prosecution had to prove the following ingredients

beyond reasonable doubt...that the harm was caused unlawfully; the accused

participated in causing grievous harm. Concerning the first element, bodily harm

means any bodily hurt, disease or disorder whether permanent or temporary. The

nature of grievous harm is defined by S.2 (f). The difference between bodily harm

and grievous harm therefore are: 1) in the case of grievous harm, the injury to health

must be permanent, whereas to amount to bodily harm, the injury to health need not

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be permanent. 2) A mental injury may amount to grievous harm but not to bodily

harm. 3) In order to amount to bodily harm, the physical injury must interfere with

health, whereas in the case of grievous harm, the injury must be of such a nature as

to cause or be likely to cause permanent injury to health.

Unlawful wounding

S.222 provides for this; ingredients are unlawful wounding of another, unlawfully with

intent to injure or annoy any person causes any poison or other noxious thing to be

administered to or taken by other person commits a misdemeanour. Punishment is 3

years.

Ntanda v Uganda Criminal Appeal No 8/2005; In this case, in the third count, the

appellant was charged with unlawful wounding contrary to section 222 of the Penal

Code Act. It was alleged in the particulars of the indictment that the appellant and
th
others still at large on the 12 April 2001 at Kazinga Zone Wakiso District unlawfully

wounded Masaba Fenekasi.

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Wednesday 13 April 2022

OFFENCES AGAINST MORALITY

RAPE

This offence is provided for under S.123 PCA. Ingredients of the offence include;

unlawful carnal knowledge of a woman/girl (the act of sexual intercourse); lack of

consent or consent obtained by threats, false representation etc, participation of the

accused.

Rape if committed, the punishment is death as in S.124 however this has been

21
overruled by the Susan Kigula Constitutional Petition outlawing the death penalty.

Carnal knowledge means sexual intercourse and to prove rape it is necessary to

prove penetration however slight by the male organ into the vagina. There need not

be emission of semen. In this offence the absence of consent is the vital and hence

the courts consider the test as whether the act was against the will of the woman. In

Adam Mulira v R 20 EACA 223, the court held that it is an essential element of the

crime of rape that the victim should not be consenting at the time of the

incriminating act of penetration is done.

The prosecution has to prove that the woman did not consent to the act and does

not have to prove positive dissent or that the woman/girl opposed the act. For

instance, it is rape where an accused person has intercourse with a woman who is

asleep or one too whom alcohol is given which renders her insensible and the

accused has intercourse with her.

Consent obtained by false representation for example is where a doctor convinces a

woman that he is going to performing a surgical operation on her to which she

consents and goes ahead to have sexual intercourse with her. In R v Flattery (1877)

2 QB 410, an accused was convicted where the woman submitted to sexual

intercourse with him under the impression that he was performing a surgical

operation. In R v Williams (1923) KB 340, a singing master persuaded his pupil that

sexual intercourse would improve her singing voice. This was consent obtained by

false representation.

It should be noted that an unreasonable belief in consent is not a defence to a

charge of rape.

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The common law rule is that a husband cannot commit rape on his wife as arising

out of her marital obligations, she is deemed to consent to intercourse with her

husband so long as they are not separated by an order of court or a separation

agreement. Hence in R v Clark (1949) 2 All ER 448, it was held that presentation of a

petition of divorce but before hearing is not enough. Therefore, carnal knowledge

shall be unlawful where there has been judicial separation or a decree nisi, or an

injunction against molestation, an undertaking to court not to molest or a formal

separation deed with a non-cohabitation clause.

However, this common law rule has been overruled by case law where it has been

held that a husband can rape his wife where consent has been expressly denied.

In Uganda v Yiga Hamidu & Ors Criminal Session Case 5/2002, the 1st, 3rd & 4th

accused were indicted for rape contrary to Sections 123 & 124 PCA, the first accused

was alleged to have had sexual intercourse with the complainant against her will but

in his defence the first accused stated that the 2 were husband and wife as their

marriage had already been concluded under the Islamic marriage, and dowry fully

paid. The other accused persons were alleged to have aided the first accused to rape

the complainant. The court considered whether the 3 essential ingredients; act of

sexual intercourse, lack of consent on the part of the woman or girl and the

participation of the accused were proved beyond reasonable doubt. The court noted

that the existence of a valid marriage between an accused and complainant or an

honest belief that a valid marriage between the 2 does/can exist in Uganda, no

longer constitute a good defence against a charge of rape after the promulgation of

the 1995 Constitution the presumption of consent even where a man and woman are

validly married, appear to have been wiped out by the provisions of the 1995

23
Constitution. Court emphasized that husband and wife enjoy equal rights in marriage.

The Court condemned the first savagery mentored by the 1st accused against the

complainant and violation of her right to human dignity which was trampled upon

significantly.

However, although a husband has a right to sexual intercourse, he is not entitled to

use force or violence in order to exercise that right. If he wounds her, he might be

charged with wounding, causing bodily harm or common assault.

DEFILEMENT

The law of the offence of defilement is provided for in S.129 but prior to the

amendment in 2007, this section was to the effect that any person who has unlawful

sexual intercourse with a girl under the age of 18years commits an offence of

defilement and is liable to suffer death upon conviction. Look at the Susan Kigula

Petition with regard to the death penalty.

Consent was/is no defence to the offence of defilement as the law was concerned

with the protection of the virginity of girls.

However, since 2007 the penal code has been amended and has introduced

fundamental procedural and substantive changes in the law on defilement. S.129 of

the Penal Code Act as amended provides for the defilement of persons under

18years of age meaning even boys can be defiled as opposed to the previous

section which only provided for defilement of girls under 18years, S.129 (1) is to the

effect that any person who performs a sexual act with another person who is below

the age of 18 years commits a felony known as defilement and is on conviction liable

to life imprisonment.

S.129 (2) as amended provides for the offence of aggravated defilement and this is

24
to the effect that any person who performs a sexual act with another person who is

below the age of 18 years in any of the circumstances specified in subsection (4).

These circumstances include where the victim is below 14yrs, where the offender is

infected with HIV, where the offender is a parent or guardian or one with authority

over the victim and where the offender/accused is a serial offender, also where the

victim of the offence is a person with a disability. The punishment for aggravated

defilement is death.

On a charge of defilement, proof of age of the person/ victim must be beyond

reasonable doubt. The parents may state the date of birth or produce a birth

certificate or the birth can be ascertained by reference to local events that happened

during the birth of the child.

In S.129(7), serial offender means a person who has a previous conviction for the

offence of defilement or aggravated defilement, sexual act means penetration of the

vagina, mouth or anus however slight of any person by a sexual organ, the unlawful

use of any object or organ by a person on another person’s sexual organ.

Kibale vs. Uganda (1999) 1 EA 148, In order to prove the commission of the offence

of defilement, three facts, had to be established. Firstly, that there had been

penetration of the female sex organ by the male sex organ. Secondly, that the female

was below the age of 18 years, and thirdly, that it was a male person who had

engaged in the sexual intercourse.

Child to Child Sex

This is provided for under S.129A (1) as in the Penal Code (Amendment) Act, 2007

and is to the effect that where an offender under S.129 is a child under the age of 12

25
years, the matter shall be dealt with as required by Part V of the Children’s Act. Under

S.129A (2), where an offence is committed under S.129 is committed by a male child

and a female child upon each other then each is not below that age of 12 years of

age, each of the offenders shall be dealt as required by Part X of the Children Act.

Monday 25th April 2022

Evidence in Sexual Offences

The Courts are alive to the fact that these offences are committed in the dark, that

some of the victims, like in defilement are minors. It is important that evidence in

sexual offences, including rape, be corroborated. Such corroborated evidence may

include medical examination concerning nature of semen within the vagina, pubic

hair found around the genital area or inside, eye witnesses, confession by the

accused.

In R vs. Kapanda Vol. 2 N R L R, the appellant admitted to a mother and father that he

had defiled their daughter aged 7 years and offered them money, if they would drop

the case. Appellant’s admission was held to be corroboration of the girl’s evidence.

In Katumba vs. Uganda [2002] 2 EA 395, an examination was done by a doctor on a

woman who alleged to have been raped by the accused. The doctor did not give

evidence. One other person who responded to the alarm raised by the complainant

said he saw the accused between the open legs of the complainant. Complainant

alleged there was penetration. Accused was convicted. On appeal, accused argued

that an essential ingredient of the offence, namely penetration had not been

corroborated as required.

It was held that a court was not prevented from convicting a person of a sexual

26
offence on the evidence of the complainant, if she was believed by the court to be a

truthful witness, although the practice in such a case was that the complainant’s

evidence be corroborated, it was generally unsafe to base a conviction on the

evidence of a complainant only, in sexual offences. Corroboration was additional

independent evidence which connected the accused with the crime, confirming

some material particular not only the extent that the crime had been committed, but

also that the accused had committed it. Corroboration was therefore in relation to

the offence of rape as a whole and not the ingredient of the penetration only.

In cases of a sexual nature, the court had to warn itself of the danger of acting on the

uncorroborated testimony of a complainant but having done so, it could convict in

the absence of corroboration. See Chile & Anor vs. R (1967) EA 722.

In Mugoya vs. Uganda (1999) 1 EA 202, the Kibale case was cited, Court further held

that, the nature of corroboration required was evidence which confirmed in some

material particular not only that the crime had been committed but also that the

accused had committed it.

In Nfutumikiza vs. Uganda (1999) 1 EA 220, the slightest penetration sufficed to

constitute the offence of defilement and it was not necessary to prove rupture of

victim’s hymen. In this case the medical evidence showing that the complainant

vulva was inflamed and that sperm was present in her vagina was sufficient to prove

the necessary penetration.

ADULTERY- it is no more a criminal offence in Uganda read Case of Law Advocacy

PROSTITUTION

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A prostitute is defined in S.138 as a person who, in public or elsewhere, regularly or

habitually holds himself or herself out as available for sexual intercourse or other

sexual gratification for monetary or other material gain and “prostitution” shall be

construed accordingly.

A person who knowingly lives wholly or in part on the earnings of prostitution or one

who in any place solicits or importunes for immoral purposes is said to commit an

offence and is liable to 7 years imprisonment. Prostitution is prohibited in Uganda

and anyone who practices or engages in it, commits an offence and liable to 7 years

imprisonment.

ELOPEMENT

This is defined as running away with a married person. According to S.127(1), any

person who elopes with a married woman or entices or causes a married woman to

elope with him commits an offence and is liable to imprisonment of a term not

exceeding 12 months or a fine not exceeding 200shs as well as compensation to the

aggrieved party.

S.127(2) is to the effect that a female who elopes with a married man or entices or

causes a married man to elope with her commits an offence and is liable to

imprisonment of a term not exceeding 12 months or a fine not exceeding 200shs as

well as compensation to the aggrieved party.

Ingredients are knowledge of marital status; ignorance of which may be a defence,

Compensation accorded to the aggrieved spouse on first conviction of 600shs and

on 2nd conviction, an amount not exceeding 1200shs.

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BIGAMY

Where a person has a husband or wife living from a valid first marriage and such

person goes through a ceremony of marriage (a second marriage), such person

commits the offence of bigamy and this second ceremony is void if this ceremony

took place during the first marriage. The law on bigamy as stated in S.153 of the PCA

is designed to uphold the sanctity of the monogamous marriages. By its very nature

it cannot apply to polygamous or potentially polygamous marriages.

For one to be charged with bigamy prosecution must prove that the accused party

went through a ceremony of marriage with the first spouse; this is usually done

through the production of a marriage certificate or by calling someone who was

present at the ceremony to identify the parties. The first spouse is also a competent

witness in this regard. Once the parties are proved to have gone through a ceremony

of marriage there is a rebuttable presumption of law that it is a valid marriage.

The law provides some statutory defences to a charge of bigamy.

1. That the first marriage has been declared void by a court.

2. That the first spouse has been continually absent from the accused for at least 7

years and that the accused has not heard from the first spouse during that period.

Once the defence has proved seven years continuous absence of the accused’s

spouse the onus is on the prosecution to prove otherwise.

INCEST

This is an offence provided for under S.149, as an offence committed by any person

who has sexual intercourse with another person with whom, to his or her knowledge

any of the relationships mentioned therein.

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UNNATURAL OFFENCES

These are provided for under S.145; any person who has carnal knowledge of a

person against the order of nature, has carnal knowledge of an animal; or permits a

male person to have carnal knowledge of him or her against the order of nature

commits an offence and is liable to imprisonment for life.

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Thursday 12 May 2022

OFFENCES AGAINST PROPERTY

1. THEFT

This is provided for under S.254 of the PCA, a person commits the offence of theft if;

fraudently and without claim of right takes anything capable of being stolen, or

fraudently converts to the use of any person other than the general or special owner

thereof anything capable of being stolen. The punishment for theft is under S.261 PCA

as imprisonment for a term not exceeding 10 years unless owing to the circumstances

of the theft of the nature of the thing being stolen.

1. One of the elements of the offence of theft is the element of fraudulent intent and

this is further explained in S.254 (2). A person who takes or converts anything capable

of being stolen is deemed to do so fraudulently if he or she does the following;

a. An intent to permanently deprive the general or special owner of the thing of it.

Theft requires an intention permanently to deprive the other of his property. The intent

must not be merely to deprive the owner of the thing temporarily. So if Mary takes

John’s book intending merely to read it for coursework purposes and return it to John

afterwards there is no theft.

It is important to note that there need not be any permanent deprivation in fact. X may

be guilty of theft even though Y is never in any danger of losing his property so long as X

appropriates with the intent. On the other hand, the fact of permanent deprivation is

insufficient if there was no intent. But it must be clear that the facts- the history of what

31
X did with the goods – will often have an important bearing on the proof of X’s intent. If

for instance D is found respraying the car or changing the chasis number on the engine

of the car which he took from Y without his permission, it can easily be inferred that X’s

intention was to deprive Y permanently of it. In every case, is for the court to determine

on the evidence whether X did so intend.

A conditional taking, that is, with intent to keep only such of the goods as are valuable is

not sufficient. Thus if Atim opens Acen’s handbag, intending to steal anything that may

prove to be of value, she may be convicted of attempting to steal property belonging to

Acen though, in the result, she finds nothing in the handbag that she considers worth

stealing.

In R v. Eason (1971) 2 ALL ER 945, a policewoman placed her handbag on the floor in a

cinema hall. The accused who sat behind her took it and searched it for money which he

intended to steal. There was no money in it but cosmetics tissues. He quickly placed it

back. His conviction for theft of the handbag and its contents was quashed because he

did not intend to deprive her permanently of them.

Section 254 (2) (a) also protects the rights of a person who, though not the owner of the

property, has some special interest in it. The term special owner in the section includes

a holder of a charge or a lien or any right arising from or dependant upon holding or

possession of the thing. A lien is the right to hold property of another as security for the

performance of an act. For example, if Aaron takes his shirt to a tailor for mending and

then in order to avoid paying the bill he subsequently removes it secretly, this is stealing

32
because he has thereby deprived the tailor of his special property called a lien to the

shirt.

b) S. 254(2)(b) An intent to use the thing as a pledge or security. This happens where A

takes B’s goods and intends to pledge them or give them to another person as security

for a loan of money; this amounts to a fraudulent intent because it is an obvious

assumption of the rights of the owner.

This happens where for example Arnold who has never driven a car tells Yusuf that he

can drive properly. Yusuf doubts this. They make a bet and Yusuf stakes his wrist watch.

Arnold takes Xavier’s wrist from a nearby table and stakes it. The watches are handed

over to Yusuf on condition that he is to give both of them to the winner of the bet. This

is theft.

c. An intent to part with it on a condition as to its return which the person taking or

converting it may be unable to perform. For example Paul a money lender lends

100million shs to Alex a business man who gives his house as security and Paul gives

Alex a condition that he should repay the 100million shs with interest in a month with

Paul knowing clearly that Alex is broke and cannot fulfil this condition and that he Paul

will take the house of Alex.

d. An intent to deal with it in such a manner that it cannot be returned in the condition

in which it was at the time of the taking or conversion.

For example if A removes B’s pair of trousers and alters them to a pair of shorts, there

is a fraudulent intent to constitute theft. But if he merely removes the button from the

33
trousers, although when he returned they are not in the same condition as they were

when removed, this may be theft of the button and not of the trouser. This can be

illustrated by the Queensland case of R v. Bailey, In this case, A used B’s car for three

days without B’s knowledge or permission. There was a gallon of petrol in the car when

A removed it and this he used for driving it. He was charged with theft but the court held

that the wear and tear of the car caused by using it in the way A did, was too slight to

establish an intent to deal with it in such a manner that it could not be returned in the

condition in which it was at the time he removed it. The court held, however, that A

could properly be convicted of stealing petrol in the car.

e. In the case of money, an intent to use it at will of the person who takes or converts

it although he may intend to repay the amount to owner. A person is deemed to use

money at his or her own will, if that person deliberately or recklessly exceeds the limits

of authority allowed to him or her, or deliberately or recklessly disregards any rules of

procedure, prescribed by the owner in respect of the money as shown in S.254(3). For

example, where a person collects money from certain person as deposits for sending

them to USA on scholarship or where a person collects money from people purporting

to send them to the Middle East for employment and this money was meant to acquire

passports, Interpol letters and other documents and uses the money as he likes and

does not acquire the documents for these people nor send them over to the Middle East

and does not refund the money on demand or at a reasonable time thereafter.

A person who takes money without the owner’s consent cannot plead, as a defence, the

intention of repaying the money afterwards. It has been suggested by various authors

34
that this does not cover the situation where a person helps himself for another’s money

to obtain change and make immediate or later payment.

In Kizito Ronald V Uganda, High Court Criminal Appeal Case No. 0014 of 2008, the trial

Magistrate convicted the appellant of theft of a sum of shillings 5,000,000/= contrary to

sections 254(1) and 261 of the Penal Code Act (Cap. 120). He sentenced the appellant

to pay a fine of shillings 500,000/= or in default thereof to serve a term of 18 months in

prison. In addition, the said Magistrate made an order under section 197 of the

Magistrates Courts Act (Cap. 16) requiring the appellant to pay a sum of shillings

4,200,000/= as compensation to the complainant. The above decision, sentence and

order aggrieved the appellant. Therefore, he appealed against them.

The facts of the case were that Sometime in March 2005 one George William Kanyike

(PW3) obtained a loan of shillings 5,000,000/= from Pride Uganda Microfinance. He

kept the money at his home; and travelled upcountry. In his absence, the appellant and

another man (who were both related to Kanyike’s family) visited Kanyike’s home. They

duped Kanyike’s wife (Cissy Kanyike i.e., PW4) into giving them the above sum of

money. Therefore on returning to Kampala, Kanyike confronted the appellant in respect

of the above sum of money. The appellant promised to refund the money, but ultimately

failed to honour his word. Kanyike reported the matter to the police. In turn, the police

arrested the appellant and Ssebavuma. While in police custody Ssebavuma confessed

that he and the appellant got the above sum of money from Kanyike’s wife. Eventually,

the police took the appellant and Ssebavuma to the Magistrate’s court where the State

charged and prosecuted them for theft.

In his defence the appellant denied having received a sum of shillings 5,000,000/= from

35
Kanyike’s wife in March 2005. In addition, he questioned whether Kanyike had the

capacity to possess such a huge sum of money. After considering the evidence on

record the learned trial Magistrate was satisfied that the appellant was guilty of the

offence of theft contrary to sections 254(1) and 261 of the Penal Code Act (Cap. 120).

The appellant appealed the judgment of the lower court on the grounds that the trial

Magistrate failed to evaluate the evidence on record, failed to consider discrepancies

and contradictions in the State witnesses’ evidence, and relied on a confession which

was retracted, to the effect of reaching a wrong conclusion.

The issue on appeal was whether the State proved beyond reasonable doubt that the

appellant committed a theft against George William Kanyike. In order to be able to

assess the State’s evidence properly, it is vital to understand what amounts to theft

under our law. According to section 254(1) of the Penal Code Act (Cap. 120) a “person

who fraudulently and without claim of right takes anything capable of being stolen, or

fraudulently converts to the use of any person other than the general or special owner

thereof anything capable of being stolen, is said to steal that thing.” However, section

254(2)(e) of the Penal Code Act (Cap. 120) further distinguishes that in the case of

taking money, a person is deemed to have fraudulently taken it where he or she does so

with “an intent to use it at the will of the person who takes or converts it, although he or

she may intend afterwards to repay the amount to the owner.”

Thus in order to justify the conviction of the appellant in the lower court, the State must

show that the evidence they presented to that court proved the following things beyond

reasonable doubt:

(a) That in March 2005 Kanyike, at his home, had a sum of shillings 5,000,000/= that

36
was capable of being stolen;

(b) That the appellant participated in fraudulently taking the above sum of money; and

(c) That the appellant had no claim of right to the said sum of money.

The Appellant Court found that the learned trial magistrate erred in convicting the

appellant of the offence of theft contrary to sections 254(1) & 261 of the PCA and

quashed the conviction of the appellant, this was the State did not prove beyond

reasonable doubt that in March 2005 Kanyike had a sum of 5,000,000shs capable of

being stolen. For that reason, it follows that the State also failed to prove that the

appellant participated in fraudulently taking the alleged sum of money without a claim

of right on it as Kanyike had not provided documentation to show that a loan of such a

high amount had been given to him, the State failed to provide evidence that Kanyike

would have the capacity to have a sum of 5,000,000shs. He did not provide bank

statements. The State instead attempted to substantiate the claim that Kanyike had a

sum of 5m at his home by using the confession of Ssebavuma. The confession was to

the effect that in March 2005 Ssebavuma and the appellant went to Kanyike’s home and

took a sum of 5m. Ssebavuma later retracted the above confession alleging that it had

been extracted from him through torture.

The other ingredient of the offence of theft is;

2. Claim of Right

A person has a claim of right where he honestly asserts what he believes to be a lawful

claim even though it is unfounded in law or fact. An honest claim of right may exist even

where the accused takes by force against the will of the owner or where he demands

37
money with menaces. On the strict construction of the definition under section 254, a

claim of right may be interpreted as a defence to taking and not a defence to conversion.

However, claim of right is a defence that relates generally to offences against property

and it has been suggested that it can apply to conversion.

According to section 7 of the Penal Code Act, a person is not criminally responsible in

respect of an offence relating to property if the act done or omitted to be done by the

person with respect to the property was done in the exercise of an honest claim of right

and without intention to defraud. Although this defence is usually raised in cases of

theft, the section covers all offences relating to property. It should be noted that the

section does not require reasonableness. All that is necessary is that the claim of right

must be an honest one. Bonafide claim of right is closely related to the defence of

mistake of fact only that in this case, the accused is only mistaken in his belief that he

is entitled to claim some property. It is a defence in a charge relating to an offence

relating to property. The accused has to show that he was acting with respect to any

property in exercise of an honest claim of right and without intention to defraud e.g. a

person seizes the complainant’s property in order to enforce payment of the debt. The

defence will also stand even where the right asserted by the accused is mistaken. In

Ngavana v R, (1972) E.A 559, the appellant was charged with the theft of the heifer and

claimed that it belonged to him. The appellant’s animal had gone missing for some six

months and the appellant took the animal from the complainant’s land claiming that it

was his missing animal and called evidence to this effect. The magistrate held that the

animal was the complainant’s property and that therefore the appellant could not have a

claim of right to it. On appeal, it was held that where the accused reasonably claims

38
property as his, even if he is mistaken, he must be acquitted.

In Francisco Sewava v. Uganda MB 60/66, the appellant was acquitted on appeal when

he had been convicted of stealing doors and roofing materials that he claimed as his

and which claim he had put forward at his trial. It was held that however unfounded the

claim might be, the appellant should not have been convicted.

In Kamori Johnson v Uganda (1995) V KALR 57, it was held that the defence of claim of

right is not available where the appellant claimed that the property belonged to some

other person and not him.

3. Another ingredient of the offence of theft is taking also known as asportation.

This means carrying away or any removal of anything from the place which it occupied.

Taking is the actus reus in the offence of theft and includes detachment of anything as

well as obtaining possession. It must always be proved that the accused took the

property in question. In the case of Lerunyani v R 1968 EA 107, a passer-by saw the

accused sitting outside a cattle boma. On inquiring about buying a cow in the boma, the

accused told the passer-by that the cow was owned by him (the accused) and the

accused agreed to sell it to a passer-by for Shs. 40/= and five goats. The passer-by gave

the accused Shs. 40/=. The true owner of the cow then appeared and stopped the

transaction from going further. In the magistrate’s court, the accused was convicted of

stealing cattle and he appealed. It was held that there was no ‘taking’ of the cow within

the meaning of section 268 (1) and (5) (now 263) of the Penal Code and there was no

‘conversion’ of the cow. Accordingly, the offence of theft had not been proved.

To constitute taking, it is not necessary for the thief to take the thing completely into his

39
physical possession. According to S.254(6) a person is deemed to have taken the thing

if he moves it or causes it to move and the process is complete even with a slightest

movement even if the item is abandoned thereafter. For example if A intending to steal

a book from B’s briefcase begins to takeout the book whereupon B suddenly shouts at

him and he drops it back into the briefcase. A’s conduct amounts to taking and not

merely attempt to take. The test to be applied to determine whether asportation has

taken place is whether each and every atom of the thing has left the place into which it

was before it was removed.

In Kifuko v. R ULR 273, the accused who was working in a post office took a parcel from

the foreign parcels rack and put them in the locals’ parcels rack. The issue was whether

he was guilty of theft. His defence was that he did not take the parcel into his

possession and was not guilty of theft. It was held that once it is proved that an

accused removed an article from one place and placed in another place with the

intention of depriving the owner permanently from it, he is guilty of theft. The issue is

whether the item has left the place in which it was in before. If the answer is yes, the

accused will be said to have taken the property.

Taking may also be constructive, for example where a person gives apparent consent to

taking but his consent is annulled or destroyed or voided by a trick, intimidation or

mistake.

In Mapunda v R 1971 EA 413, the appellant was convicted of unlawfully hunting an

elephant and stealing its tusks which were the property of the government. After

shooting the elephant, the appellant obtained a licence and returned the tusks. He

40
obtained the tusks from the villagers who had found them and took them to the

appropriate officer to obtain a certificate of ownership. For the appellant, it was argued

that the offence was not one of theft but of cheating or an attempt at stealing. It was

held that the appellant stole the tusks when he took possession of them. His

subsequent actions in attempting to obtain a certificate of ownership were merely

evidence of his intention permanently to deprive the owner of them. It was further

states that the offence of stealing is the deprivation of possession not ownership- the

theft is committed when he wrongly removes the goods with the necessary intent- that

is, in this case, permanently to deprive the owner of it. That a thief obtains no title to the

articles stolen. A short example might illustrate this a thief steals a car and then

subsequently attempts to have the vehicle registration book altered in his name. The

theft here is committed when he takes the car, and the subsequent attempt of

registration would be evidence of his intention permanently to take rather than borrow

the car and the offence would be committed when he unlawfully took the car.

Monday 16th May 2022

4. Another ingredient in the offence of theft is the thing must be capable of being

stolen;

Section 253 contains a list of things capable of being stolen and they are of two

categories; inanimate things and animals. Every inanimate thing, which is the property

41
of any person and which is movable, is capable of being stolen. An inanimate thing

which is the property of any person and which is capable of being made movable is

capable of being stolen as soon as it becomes movable, although it is made movable in

order to steal it. There must be an owner who must be named in the charge sheet.

However, if the owner cannot be traced, the presumption is that most inanimate things

have owners and the charge sheet will state that it is the property of a person unknown.

Valueless things such as rubbish cannot also be stolen. In Kyewawuna v Uganda 1974

EA 293, the accused was working in the Bank of Uganda. The government had just

changed a new currency for old ones. He stole some of the old currency and he was

charged with theft. It was held that while the old currencies were owned by the Central

Bank, they were useless to the bank. They were of no value to the bank.

A human corpse is incapable of ownership but the coffin, burial clothes and jewellery

are things capable of being stolen since they are a property of a person who provided

them.

Intangible things without body or not of material nature, for example, electricity cannot

be stolen. There are, however, offences created under the respective legislations for

illegal use of such services.

The property must be movable to be capable of being stolen. Land and buildings cannot

be stolen because they are immovable. However, a window or any other fixture

detached from the house is capable of being stolen.

5. Conversion

Conversion was defined by Atkin J. as he then was, in the case of Lancashire and

Yorkshire Railway Co.v. Mac Nicol (1919) 88 KB 601 at 605 as dealing with goods in a

42
manner inconsistent with the right of the true owner provided that it is also established

that there is an intention on the part of the accused in so doing to deny the owner’s right

or to assert a right which is inconsistent with the owner’s right.

It is intended to cover a situation where a person lawfully in possession of a thing

belonging to someone else wrongfully appropriates it to some other person. It differs

from taking in that there is no need for removal of thing. It is important to note that for

conversion to amount to stealing, it must be done with one of the fraudulent intents as

specified under section 254 (2).

For example, where a person was lent property and then determined in his own mind to

sell it for his own benefit contrary to the terms of bailment, he had determined that in

relation to the property he would no longer be a borrower but an owner, and an owner

wishing to sell; when he proceed to carry the intention into effect by offering the

property for sale, he had already converted the property to his own use whether the

attempted sale takes place of not.

Situation of Husband and Wife

Generally in the case of spouses, they are incapable of stealing each other’s property.

However, according to S.260, a person who procures one spouse to take the property of

another spouse may be charged with theft. For example a boyfriend who procures a

wife to steal from her husband is guilty of theft even though the wife is protected by

immunity which attaches to marriages.

43
Theft by finding

Where a thing capable of being stolen is lost by the owner, the finder of the thing is

guilty of theft if he coverts it and at the time of the conversion the finder knows who the

owner is or he believes on reasonable grounds the owner can be found. That is to say,

the conversion or taking will not be deemed fraudulent if at the time the person taking

or converting the thing does not know who the owner is and believes on reasonable

grounds that the owner cannot be traced.

Conversion not amounting to theft

Under section 284, it is an offence for any person to, unlawfully and without colour of

right, but not so as to be guilty of stealing, take or convert to his or her own use or to the

use of any other person, any draught or riding animal or any vehicle or cycle, however

propelled, or any vessel. This offence is designed to prevent persons from the

temporarily use of the property without the consent of the owner or relevant authority.

This offence is a misdemeanor whose punishment is 6 months imprisonment or a fine

of 1000 or both the imprisonment and fine.

In R v. Burns (1958) EA 142, a police officer took a government vehicle which was

stationed at the police station to Nairobi without authority and spent a day in Nairobi

with the vehicle. It was held that this amounted to conversion not amounting to theft.

Colour of right is an honest belief on the part of the accused that they had a right to

possess certain property despite that there was no true basis for the belief in fact or law.

It is a defence to certain property related offences.

44
Doctrine of Recent Possession

The doctrine of recent possession is cardinal evidence especially in proof of offence

against property like theft and robbery.

In the case of Mbaziira siragi & Another versus Uganda [2007] HCB Vol. 1 HCB 9 the

Supreme Court held inter alia that:

“The doctrine of recent possession of stolen goods is an application of the ordinary rule

relating to circumstantial evidence. The fact that a person is in possession of goods

soon after they are stolen raises a presumption of the fact that, that person was the

thief or that that person received the goods knowing them to be stolen, unless there is a

credible explanation of innocent possession. The starting point for the application of

the doctrine of recent possession is proof of two basic facts beyond reasonable doubt,

namely that the goods in question were found in possession of the accused and they

had been recently stolen. In re-evaluating the evidence adduced against each appellant

(accused) Court must consider it from two perspectives; namely whether the evidence

proves that the found items (or any of the items) were stolen during the robbery in

question, and whether any of the appellants was in possession of any of the found

items.”

This doctrine is a type or form of circumstantial evidence and is to the effect that if an

accused is found in possession of recently stolen property for which he is not able to

give reasonable explanation, the presumption arises that he knew or had reason to

believe that the goods were stolen or he is the thief. This presumption may be rebutted

by credible explanation of innocent possession of the property. This doctrine entitles a

45
court of law to draw an inference of guilt where the accused is found in possession of

recently stolen property in unexplained circumstances. An inference of guilty is

preferred or presumed on a person who is found in possession of property recently

stolen.

The doctrine of RP was well stated in the case of Kasaija v Uganda SC Criminal Appeal

No.12/1991 as “The doctrine of recent possession, a species of circumstantial

evidence, is that if an accused is in recent possession of stolen property, for which he

has been unable to give reasonable explanation, the presumption arises that he is either

the thief or the receiver of the stolen goods, according to the circumstances. Hence

once the appellant has been proved to have been found in recent possession of stolen

property, it is for the accused to give reasonable explanation. He will discharge this

onus on the balance of probabilities, whether the explanation could reasonably be fine,

if he does so then an innocent possibility exists which negatives the presumption to be

drawn from the other circumstantial evidence.”

Also in the case of Bogere Moses and Another versus Uganda, SCCA No. 1 of 1997, the

Supreme Court had this to say:-

“It ought to be realized that where evidence of recent possession of stolen property is

proved beyond reasonable doubt, it raises a very strong presumption of participation in

the stealing, so that if there is no innocent explanation of the possession, the evidence

is even stronger and more dependable that eye witnesses evidence of identification in a

nocturnal event. This is especially so because invariably the former is independently

verifiable, while the later solely depends on the credibility of the eye witness.”

46
In Izongoza Willam v Uganda Criminal Appeal No.6 of 1998 (Supreme Court Case), one
th
James Wakholi was riding his bicycle from the market on the evening of 20 Dec 1993

on Wampewo Avenue in Kampala, he was attacked and grievously wounded by an

unknown assailant or assailants who robbed him of his bicycle. He was left lying on the

road and unconscious. Later a witness found him lying on the road and bleeding

profusely from the head. He was rushed to hospital. The following day in the hours of 8-

9am, Wakholi’s stolen bicycle was found in Kisenyi one of suburbs of Kampala and

Izongoza who claimed that the bicycle was his and was offering it for sale was

apprehended and later charged with robbery. He was tried and convicted by the High

Court and sentenced to death on circumstantial evidence in the form of recent

possession of stolen property. His conviction and sentence were on appeals confirmed

by the Court of Appeal and the Supreme Court. The SC held that in the case of

circumstantial evidence surrounding a robbery or theft, if the prosecution adduces

adequate evidence to show that the accused was found in possession of goods

recently stolen or taken as a result of robbery, the accused must offer some credible

explanation of how he or she came to possess the goods, otherwise the evidence of

recent possession would justify his or her conviction.

Thursday 19th May 2022

Receiving stolen property

Under Section 314 of the Penal Code Act, it is provided any person who receives or

retains any chattel, money, valuable security or other property, knowing or having reason

to believe the same to have been feloniously (relating to or involved in a crime) stolen,

taken, extorted, obtained or disposed of, commits a felony and is liable to imprisonment

47
for fourteen years.

Ingredients

Possession

A person commits an offence of receiving stolen property if to his or her knowledge that

the property had been stolen and he receives it with a guilty knowledge. In order to

prove receiving, it is sufficient to show that the accused person has either alone or

jointly with some other person had the thing in his possession or has aided in

concealing it of disposing of it. Even mere assisting in disposing of the thing without

having control over it is receiving. i.e the prosecution must prove that the accused had

knowledge that the property was stolen and he receives it.

Section 2 (v) provides a very wide definition of the word possession. It includes not only

having in one’s own personal possession, but also having anything in the actual

possession or custody of any other person, or having anything in any place (whether

belonging to or occupied by oneself or not) for the use or benefit of oneself or of any

other person. Further, under this section, if there are two or more persons and any one

or more of them with the knowledge and consent of the rest has or have anything in his

or her or their custody or possession, it is deemed and taken to be in the custody and

possession of each and all of them. However, it was held in the case of Kara v R (1971)

EA 191 that this broad definition does not apply to the offence of stolen property. In this

case, the appellant was charged with receiving a tape recorder knowing it to have been

stolen. The appellant when shown the parcel containing the tape recorder admitted that

someone had left it there. He did not admit knowing that it contained a tape recorder.

48
Possession, in the context of this offence seems to be physical possession. In the case

of Kateba v R (1967) EA 215, the appellant offered to sell a radio in circumstances

which apparently made one of the persons present, Hamisi, suspicious. Hamisi offered

to buy the radio and took it away. Subsequently, Hamisi sought out the appellant and

took him to his house where he collected the radio and then took it and the appellant to

the police station, where the appellant was arrested and charged with possession of

property suspected of having been stolen. He was convicted and appealed. It was held

that the appellant having parted with possession of the radio when it was taken from

him by Hamisi was not ‘in possession’ of it when arrested.

Mere manual possession of a stolen article without having control over it does not

amount to possession of it.ie in Hobson v Impett, 41 Criminal Appeal R 138.

Possession may be sole or joint possession. In Said Kigozi v R 1958 EA 1, the appellant

was convicted by a magistrate of receiving a bicycle knowing it to have been stolen.

Evidence was led to show that the bicycle had been taken to the appellant for repairs

and had been found in the appellant’s house in a dismantled condition. Further evidence

showed that the appellant had removed the small part which bears the number. The

magistrate drew an inference of a guilty knowledge from the manner in which the

appellant dealt with the bicycle. It was argued on appeal that the appellant did not have

possession of the bicycle of the nature that must be proved to establish a charge of

receiving. It was held that although mere manual possession of a stolen article without

having control of it does not amount to possession in law, in this case evidence showed

that the appellant had at least joint possession and had at least joint control over the

49
article.

However, circumstantial evidence that property must have been stolen can be sufficient.

For example, if a person takes a brand new car to the garage, he repaints it from blue to

white or someone hides it. In Idi s/o Waziri v. R (1961) EA 146, the accused was found

in his possession of some property but there was no evidence to prove conclusively that

the property had been stolen. However, the circumstances under which he received the

goods showed that the goods were stolen. In this case, he hid a bag of coffee in a

maize field. He attempted to sell it below the true value of the coffee and he tried to sell

it secretly. When questioned about the coffee, he denied it. The court observed that on a

charge of theft or receiving goods that are stolen, there need not be direct evidence that

the goods were stolen goods. That an accused having been found to have been in

possession of the goods, the circumstances of that possession must be examined for

the purpose of ascertaining if it can be inferred, on the basis of the normal burden of

proof, that the accused received the goods knowing them to have been stolen. This

necessarily involves proof of circumstances showing that the accused received the

goods knowing they were in fact stolen and the circumstances of possession may be

sufficient to prove that the property was stolen and that the possessor knew that the

property was stolen and knew it when he received it.

In Mwangi Njoroge v. R (1963) EA 624, the appellant was convicted of receiving stolen

property contrary to s.322 (1) of the Penal Code. The evidence showed that when the

appellant’s house was searched a large number of M. & B. tablets were found in tins

50
placed under the legs of his bed. When charged, the appellant made a cautioned

statement (this is a statement made by a suspect to a crime containing a warning that

what he says may be taken down and used as evidence; if he makes an a confession

to the offence in this statement then this becomes an admission) to the effect that the

tablets were not stolen but that they had belonged to someone else and that he had

bought them. In convicting the appellant the magistrate relied on Idi s/o Waziri v R,

(above) and held that having regard to the circumstances of the appellant’s purchase

and possession of the tablets, they had been stolen and that the appellant knew that

they had been stolen. On appeal, it was held that where there is no direct proof of theft

or of receiving goods knowing them to have been stolen, the ordinary rule of

circumstantial evidence must be applied, namely, that the circumstances must be such

as to convince any reasonable person that no other conclusion was reasonably possible

since it was possible that the tablets had been concealed because the appellant had

committed the minor offence of contravening s.26 of the Pharmacy and Poisons

Ordinance, the magistrate was wrong in convicting the appellant of receiving stolen

property.

Receiving dishonestly

The receiving must be dishonest, i.e. the receiver must be knowing that the goods have

been stolen and must intend to appropriate them to his own use or to the use of some

person other than the true owner. For example, receiving stolen goods with a view of

handing them over to the police or to the true owner is not an offence R v. Matthews

(1950) 1 All E.R 137.

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Property received

It must be proved that the property received had been previously stolen or obtained by

means of an act constituting a felony or misdemeanour. It is not sufficient to show that

the goods had previously been stolen. They must continue to be stolen goods at the

time when the accused person received them. In David Kasule v Uganda, (1966) EA 338,

the appellant was convicted of receiving stolen property. There was evidence that about

sixteen car armatures (rotating coils) were missing from the store of a car company

and that the appellant attempted to sell an armature to a police officer when the police

officer visited his shop in the course of investigations. The appellant tried to run away

when the police officer disclosed his identity and volunteered the information that the

armature was a gift from one S. which was denied by S. The magistrate stated in his

judgment that it had not been proved that the armature was one of the armatures stolen

from the store nor could the company’s manager positively identify it. One of the

grounds of appeal was that the charge receiving was not substantiated for want of

proof that the armature was unlawfully obtained or disposed of. It was held that a

person charged of receiving stolen property who does not plead guilty cannot be

convicted unless the prosecution established that the property, the subject matter of

the charge, had in fact been stolen or feloniously or unlawfully taken, extorted, obtained,

converted or disposed of.

Goods will cease to be stolen goods as soon as they are recaptured by the true owner

or by the police on his behalf. A person who receives them thereafter is not guilty of

receiving stolen goods.

In Ratilal & Anor v. Republic, (1971) EA 575, a Ford Cortina car was stolen and was seen

52
at one time or another in the possession of the 2 accused persons. The first accused

had the car re-sprayed. On the same day the second accused made plans to buy

another blue Ford Cortina and from this car the registration number, the filler cap, the

Road Funds Licence, the alloy tag and other descriptive numbers were ultimately

transferred to the stolen Ford in an attempt to conceal its identity. The accused were

charged jointly with stealing the vehicle or in the alternative of handling stolen goods

contrary to s.322 (2) of the Penal Code (of Kenya).

The trial magistrate acquitted both accused of stealing but convicted both of handling

the stolen vehicle. On appeal to the high court, the convictions were upheld. On further

appeal, it was held that on a charge of handling stolen goods the prosecution must

prove that the handling was otherwise than in the course of stealing; that the accused

received the goods knowing or having to believe that the goods were stolen, or that the

accused dishonestly undertook or assisted in the retention, removal or disposal or

realisation of the goods by or for the benefit of another person.

Guilty Knowledge

It must be shown that the accused at the time of receiving the goods knew they were

stolen or obtained by means constituting a felony or misdemeanour. Guilty knowledge

may be proved by direct or circumstantial evidence or confession.

What is required of the accused is to give a reasonable explanation of how he came into

contact with the property in question. He does not need to prove affirmatively that the

property in question actually belongs to him or her. In the case of Tenywa v Uganda

(1967)EA 102, the appellant was stopped and questioned by a detective sergeant as to

his possession of a bicycle. The appellant stated that he had bought the bicycle from an

53
Asian in Kamuli but he could not produce an invoice covering the purchase and when

taken to the said Asian, the Asian denied having sold the appellant the bicycle. The

appellant was taken to Central Police Station and the police, after investigations,

received a report that the number of the bicycle frame had been forged. The appellant

was duly prosecuted and convicted of possession of property suspected of having been

stolen. In his defence, the appellant maintained that he had had the bicycle for the past

two years and that the receipt which had been given to him when he bought the bicycle

was lost.

On appeal, it was held that the trial magistrate was wrong in law in holding that the onus

of establishing that the bicycle was the appellant’s was on the appellant. That what the

law requires on a charge of possession of property suspected of having been stolen is

that the appellant should give an account as to how he had come by the bicycle to the

satisfaction of the trial magistrate. Generally therefore in absence of proof by the

prosecution that the article is the property of someone else, a reasonable explanation of

how the accused person had come by the property would be sufficient ground upon

which to discharge him. On the evidence as a whole, the appellant had given a

reasonable explanation as to how he had come to be in possession of the bicycle.

In Onyango v Uganda (1967) EA 386, the appellant was convicted of being found in

possession of a radio which was reasonably suspected of having been stolen. The case

against the appellant was that he offered the radio for sale to one Ibwatt for Shs. 450/=.

The appellant told Ibwatt that he had bought the radio and had a receipt for it and the

appellant’s companion confirmed that the radio belonged to the appellant. Ibwatt then

left the appellant and reported the offer of the sale to Detective Obuku on the ground

54
that he had come to a conclusion that the radio was stolen. Obuku went back with

Ibwatt to the appellant and asked the appellant to produce the receipt given to him

when he bought the radio. The appellant stated that the receipt was at his home and

Obuku went with the appellant to his house to search for the receipt. The appellant was

unable to find the receipt and he was arrested on the ground that he had stolen the

radio. He was convicted and on appeal, it was held that mere failure to produce a receipt

could not in itself afford a reasonable ground for suspicion that the radio was stolen.

That the explanation offered by the appellant that he had bought the radio from Kisumu

was sufficiently reasonable to have warranted its acceptance as satisfactory.

Conversion of stolen property

A steals a sum of money and offers it to B who knowingly receives it. B is guilty of

receiving stolen property. In D’Andrea v Woods (1953) 1 WLR 1307, two girls stole

savings stamps and converted them into cash, part of which they handed to the

accused who admitted that when he received the money, he knew it was part of the

proceeds of stolen stamps. He was convicted of receiving money knowing it to be

stolen.

It is important to note that where it is difficult for the prosecution to prove theft, the

charge should be framed in the alternative, first of theft then of receiving stolen property

because a person cannot be convicted of both theft and receiving stolen property. He

may be convicted of either of them.

Tuesday 25th May 2022

55
ROBBERY

Section 285 defines robbery as an offence committed when a person steals anything

and at or immediately before or after the time of stealing uses or threatens to use

actual violence to any person or property in order to obtain or retain the thing stolen or

to prevent or overcome resistance to its being stolen or retained.

There are 2 main ingredients for this offence which include;

i) Use of violence immediately before or at the time of stealing

Where force is employed so as to steal, it will constitute the offence of robbery only

where it is employed at the very time of stealing or immediately before that event, but

not sometime after the event. In Njuguna v R 1965 EA 583, the accused having

burglarised a house and stolen therefrom was discovered without a chase at a distance

five hundred yards where he then resisted the complainant with violence. It was held

that the offence was not robbery but burglary and theft because the element of using

violence immediately after the act was lacking.

The Penal Code does not state what degree of violence is required but it must be

substantial in view of the seriousness of the offence. The offence is not committed if

the complainant is not present so that there is no violence to him/her or to his/her

person.

Where several persons go to steal and one of them, unknown to the others, uses

violence, those others are guilty not of robbery but of stealing, unless it can be shown

that they were party to the use of violence.

56
There is a difference between simple robbery and aggravated robbery; this case below

is an illustration of simple robbery.

Mbazira Siragi & Baguma Henry vs Uganda, SC Criminal Appeal No. 7/2004, the 1st

and 2nd appellants in this appeal, were convicted by the High Court (Mugamba J.) at

Mbarara, on two counts for simple robbery. They were both sentenced on each count to

15 years imprisonment to run concurrently. Their appeals to the Court of Appeal against

conviction and sentence were dismissed, hence this second appeal.

The prosecution case may be described in two segments. The first comprises the

evidence adduced to prove the robberies. The second comprises evidence on discovery

of stolen items and a gun and bullets the robbers had during the robberies, which

evidence was adduced to prove that the appellants were among the robbers.

Facts of the case: In the night of 23rd September 2000, at about 10 p.m., three men

armed with a gun, attacked Erineo Turinawe, PW1, and his wife Winnie, PW6, at their

house in which they also operated a bar. They beat the victims, tied them by the arms

and forced them to lie down, while they stole diverse goods, including 17 bottles of beer,

a jerry can of waragi, a radio cassette, 30 music tapes, a handbag, a pair of trousers and

a jacket, which they packed in sacks. They demanded money as they continued to beat

their victims until PW6 surrendered an unascertained amount from the day’s bar sales.

The robbers then ordered PW1 to cause the neighbour, Katarina Kikabahenda, PW2, to

open her house cum shop. When Katarina opened, the robbers attacked her also. One of

them repeatedly hit her with the butt of a gun demanding for money while the other two

stole her shop items including 10kgs of sugar, a box of soap, 3 packets of Hedex

57
tablets, Pepsi packages, and a 4 inch mattress. In addition, she surrendered to the

robbers shs.75,000/-. The victims reported the robberies to the LC1 Chairman and to

Ishunguriro Police Post. None of them recognised their assailants. It is also noteworthy

that even subsequently the victims never identified any of the appellants as one of the

robbers.

On 25th September 2000, PW1 found one Kwizera Fred, PW3 playing one of his stolen

music tapes. Kwizera told him he had borrowed it from Mbazira. Upon confirming from

a mark on it that it was his, he sought assistance from the Local Defence Unit (LDU) at

Ishunguriro detach. Four of the LDU personnel returned with him to Kwizera’s home.

They asked Kwizera for the tape and he said that Mbazira had taken it. They went with

Kwizera to Mbazira’s home. When asked for the tape Mbazira denied any knowledge of

it. They searched his house but did not find the tape. Mbazira was arrested and taken to

the LDU detach. Kwizera was not arrested. Between 26th and 29th September 2000,

Saad Gumisiriza, PW4, of the said detach, with other LDU personnel continued the

investigations to trace the stolen goods. In the course of the investigations, they

discovered around the home of Mbazira, a radio cassette, half a jerry can of waragi, a

gun and bullets. They also discovered a 4” foam mattress from the home of Baguma

Henry alias Karuna; and 1kg of sugar, a box of dry cells and a tin of sleeping baby cream

from the home of Mbabazi. They arrested Mbazira and Baguma the two appellants and

the said Mbabazi, who was later acquitted by the trial court. They also arrested two

other persons who apparently were never charged. The gun and bullets were passed on

to the police and later produced in court but the rest of the discovered items were given

to the respective claimants and were never produced in evidence.

58
The appellants, together with Mbabazi, were indicted on two counts for aggravated

robbery. As the three eye witnesses did not identify the accused as their assailants, the

prosecution relied on the evidence that the discovered items were some of the stolen

goods and that they were found in the possession of the accused soon after the

robberies. The trial court accepted the evidence, applied the doctrine of recent

possession of stolen goods, and held that the appellants committed the robberies.

Mbabazi was acquitted on the ground that the items taken from his home were not

particularly identified as items stolen during the robberies. Further, the court was not

satisfied that the robbers used or threatened to use the gun produced in evidence.

Accordingly, it convicted the appellants of the lesser offence of simple robbery on both

counts. The Court of Appeal upheld the convictions on strength of the same doctrine of

recent possession of stolen goods.

“The doctrine of recent possession of stolen goods is an application of the ordinary rule

relating to circumstantial evidence. The fact that a person is in possession of goods

soon after they are stolen raises a presumption of the fact that, that person was the

thief or that that person received the goods knowing them to be stolen, unless there is a

credible explanation of innocent possession. The starting point for the application of

the doctrine of recent possession is proof of two basic facts beyond reasonable doubt,

namely that the goods in question were found in possession of the accused and they

had been recently stolen. In re-evaluating the evidence adduced against each appellant

(accused) Court must consider it from two perspectives; namely whether the evidence

proves that the found items (or any of the items) were stolen during the robbery in

59
question, and whether any of the appellants was in possession of any of the found

items.”

This doctrine is a type or form of circumstantial evidence and is to the effect that if an

accused is found in possession of recently stolen property for which he is not able to

give reasonable explanation, the presumption arises that he knew or had reason to

believe that the goods were stolen or he is the thief. This presumption may be rebutted

by credible explanation of innocent possession of the property. This doctrine entitles a

court of law to draw an inference of guilt where the accused is found in possession of

recently stolen property in unexplained circumstances. An inference of guilty is

preferred or presumed on a person who is found in possession of property recently

stolen.

(ii) The use of force must seek to put any person in fear

There must be more than a slight physical contact.

a) The force can be against any person need not be the person whose property is stolen.

b) The force needs to be continuous.

The Punishment for robbery is spelt out in S.286 (1) (a) where a person who commits

the felony of robbery is liable on conviction by a magistrate’s court to imprisonment for

10 years. This is for Simple robbery. Under S.286 (1) (b) a person who commits the

felony of robbery is liable to imprisonment for life if convicted by the High Court.

Aggravated Robbery

60
Under Section 286 (2) of the Penal Code Act, where at the time of, or immediately

before, or immediately after the time of the robbery, an offender uses or threatens to

use or is in possession of a deadly weapon or causes death or grievous harm to any

person, such offender and any other person jointly concerned in committing such

robbery commit aggravated robbery and, on conviction by the High Court, are liable to

suffer death. (This is from the Penal Code Amendment Act).

Section 286(3) defines a “deadly weapon” includes any instrument made or adapted for

shooting, stabbing or cutting and any imitation of such an instrument. Also a deadly

weapon is any substance which when used for offensive purposes is capable of

causing death or grievous harm or is capable of inducing fear in a person that it is likely

to cause death or grievous bodily harm and any substance intended to render the victim

of the offence unconscious.

In Uganda v. Mujuni William HCT-05-CR-SC-0193-2003), facts are that on the night of

8th May 2002, the accused Mujuni while armed with a panga and knife robbed Kamukazi

Jane of cash 150,000, a pair of shoes, one mosquito net, 2 suit cases of clothes, a

watch, 3 kgs of ghee and at or immediately before or immediately after the time of the

said robbery used personal violence to the said Kamukazi Jane. The Complainant had

identified the accused when on entering her house; one of the assailants instructed her

to light a candle which enabled her to identify one of the assailants.

It was held that in a case of Robbery contrary to section 285 and 286(2) of the Penal

Code, the prosecution is required to prove the following ingredients: -

1) That there was theft of some property.

61
2) That there was use or a threat to use a deadly weapon at the time the theft was

committed.

3) That the accused was a participant in the robbery.

On the second ingredient as to the use or a threat to use a deadly weapon, the court

held that although a panga and knife are by definition of S. 286(2) deadly weapons, their

use or threatened was not sufficiently established by the prosecution since none of the

witnesses were able to describe as to how the panga and knife were used or threatened

but they only testified that the assailants were armed with the panga and knife. The

evidence that the door was banged open and the complainant was assaulted during the

robbery establishes that there was use of violence which reduces the offence from that

of robbery c/s 285 & 286(2) to that of robbery c/s 285 and 286(1)(b).

In Uganda v. Adupa Nelson & Ors Criminal High Court Session Case No. 36 of 2003.

The Court held that in an offence of aggravated robbery contrary to sections 285 and

286 (2) of the Penal Code Act the prosecution must prove beyond reasonable doubt

each and every one of the following ingredients:- that there was theft of some property

capable of being stolen, that there was use or threat to use violence during the theft,

that there was use of or threat to use a deadly weapon immediately before, during or

immediately after the theft or that death was caused or grievous harm to any person

during the execution of the theft, and that the accused persons or any of them

participated in the theft.

Thursday 25th May 2022

Demanding Property with Menaces

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Under section 293 of the Penal Code, any person who, with intent to steal any valuable

thing, demands it from any person with menaces or force, commits a felony and is liable

to imprisonment for five years.

In Kagori v. R (1967) EA 427, the appellant was convicted of demanding money with

menaces with intent to steal, contrary to s. 302 Penal Code (S.293 of the Uganda Penal

Code). The facts as found were that the appellant went to a restaurant, introducing

himself as a representative of the Domestic and Hotel Workers Union. He alleged the

staff was underpaid and was allowed to inspect some records of the restaurant. The

next day he alleged to the complainant, a director of the restaurant, that underpayments

of the staff totalled Shs.1,700/- during the previous year and if the restaurant settled for

half that sum, he, the appellant would destroy the letter and its carbon copy containing

the allegations of underpayments. The appellant was asked to return, ostensibly to

receive payment.

By arrangement with the police the complainant paid over some marked currency notes

to the appellant and their conversation was recorded. The magistrate found that the

appellant received the money as hush money to refrain from complaining that the staff

were underpaid. It was held that the evidence to support a charge such as that laid

against the appellant must show that: (i) the accused demanded a valuable thing (ii) he

demanded it by menaces or force; and (iii) he demanded it with intent to steal. It was

further held that whether there is a demand is a question of fact; the language used may

even be in form of a request. In this case, the court found that the ingredients of the

offence of which that appellant convicted were proved.

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HOUSEBREAKING, BURGLARY AND RELATED OFFENCES

Housebreaking is contained in Sections 294 and 295 of the Penal code.

Section 294 defines housebreaking as breaking of any part of the building or opening by

unlocking, pulling, pushing, lifting or any other means any door, window, shutter, cellar

flap or other thing, intended to close or cover an opening in a building, or an opening

giving passage from one part of a building to another.

Ingredients:

Time

The two offences, burglary and housebreaking have the same ingredients except one is

committed in the day time and the other committed at night. Night means time between

6:30 PM and 6:30 AM under S.2(q).

In cases of breaking in order to enter, both the breaking and the entry must be done at

night. If the breaking is in the day and entry is at night and vice versa, the offence is not

burglary.

Breaking

This is an essential ingredient of both burglary and housebreaking. If a man leaves the

door of his dwelling house open and a thief enters through the same open door, the

offence is neither housebreaking nor burglary because the element of breaking is

lacking. Breaking may be actual or constructive. There is actual breaking when a person

breaks any part whether external or internal of a building or opens by unlocking, pulling,

pushing or any other means. Whenever any door, window shutter or any other thing

intended to close or an opening in a building or an opening giving passage from part of

the building to another.

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There is breaking and entry under the following circumstances.

-Opening a door with a key;

-Lifts a larch;

-Pushing or opening a closed window;

-A person who is lawfully in the house such as a servant or a guest; opens the closed

door of the bedroom; S.294 (1).

-No breaking if the door or window partly open, though not open; enough to admit but

one pushes it further;

-Constructive breaking occurs when entrance into a dwelling house is obtained by

means of threat or artifice; S. 294(3).

-Entry through a chimney or a place permanently left for a particular purpose but not

intended to be used as ordinary means of entrance; S.294(3).

-A pretence for instance sanitary inspector (R v Boyle (1954) 2 QB 292).

Entering

The accused must enter, or have entered, a building in order to be guilty of burglary or

housebreaking. The offence is not committed where there is no entry, even where the

breaking has been established. In Masenu Butiti v R, the District Court of Mwanza

convicted the appellant of housebreaking contrary. The evidence established that the

appellant broke a garage door but ran away before any entry was made into the garage.

On revision, it was held that the essential ingredients of housebreaking are:- (a) a

breaking and entering, (b) into a building, (c) the commission of a felony therein. That

here there was no entry, so that the conviction was wrong.

Whether there has been an entry is a question of fact. However, there must be an

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"effective" entry. In R v Brown (1985) Crim LR 21, a witness, having heard the sound of

breaking glass, saw the accused partially inside a shop front display. The top half of his

body was inside the shop window as though he were rummaging (searching, reaching,

diving) inside it. The witness assumed that his feet were on the ground outside,

although his view was obscured. The accused was convicted of burglary. He appealed

on the ground that he had not "entered" the building, since his body was not entirely

within it. The Court of Appeal held, dismissing the appeal that the word "enter" did not

require that the whole of the accused’s body be within a building. The statement of

Edmund-Davies LJ in R v Collins (1973) QB 100 that entry must be "substantial and

effective" did not support the accused’s contention. "Substantial" did not materially

assist in the matter, but a jury should be directed that, in order to convict, they must be

satisfied that the entry was "effective". There had clearly been an entry in the present

case.

In R v Ryan (1996) Crim LR 320, the victim, an elderly householder, found the accused

stuck in a downstairs window of the house at about 2.30am. The accused's head and

right arm were inside the window which had fallen on his neck and trapped him. The

rest of his body was outside the window. He was convicted of burglary and appealed on

the grounds that there was no entry because he could not have stolen anything from

within the building on account of being stuck. The Court of Appeal dismissed the appeal.

That R v Brown made it clear that the accused could enter even if only part of his body

was within the premises. The accused's inability to steal anything because he was

trapped was totally irrelevant.

Entering happens as soon as any part of the accused’s body or any part of any

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instrument used by him is within the building that is under S. 294(2) For example if in

the process of opening a window, the accused’s hand or fingers enters the room, this is

sufficient entry. The same applies to any instrument used by him or her. For example, if

one uses a knife to cut open a window or door and the knife is admitted into the room or

if one uses a key to open a door and part of the key projects into the building.

Intent

The intent must be to commit a felony, not necessarily stealing. This may be murder,

arson or rape. It is sufficient if there is merely a breaking and entering with intent to

commit a felony. It is follows that if the accused sets up an honest right to enter, it will

be for the prosecution to prove that the belief was not held. For example, if A honestly

believes that Y’s house is on fire, break opens the front door in order to put out the fire

and discovers that there is no fire, and is tempted to steal and does in fact steal in the

dwelling house, he is not guilty of burglary unless if after committing the felony breaks

through another part of the building.

Monday 30th May 2022

Criminal Trespass

Criminal trespass is provided for under section 302 of the Penal Code Act. It is

committed when a person enters into or upon property in the possession of another

with intent to commit an offence or to intimidate, insult or annoy any person; or having

lawfully entered into or upon such property remains there with intent thereby to

intimidate, insult or annoy any person or with intent to commit any offence.

Entering on another’s property is not trespass per se unless one does so with intent to

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commit a crime or to intimidate, insult or annoy any person.

In Crordino v. R (1945) 6 KLR 144, the accused entered into the house of the

complainant and removed furniture of the complainant. He was the director of a road

construction company. He entered in order to dispossess the tenant. It was held that

before a person could be convicted of criminal trespass, it must be proved that he

entered the house or remained in the house with the intention of annoying, insulting,

intimidating or committing a crime. The accused was not found guilty.

Obtaining by False Pretence

False Pretence

This is defined under S.304 as any representation made by words, writing or conduct, of

a matter of fact, either past or present, which representation is false in fact, and which

the person making it knows to be false or does not believe to be true. Under S.305

creates the offence of obtaining by false pretence; any person who by any false

pretence, and with intent to defraud, obtains from any other person anything capable of

being stolen, or induces any other person to deliver to any person anything capable of

being stolen, commits an offence and is liable to imprisonment for five years.

False pretence is the making of a representation that certain state of affairs exists

which is infact false. The representation must be made either by conduct or by spoken

words. For example, if a person goes to a restaurant and orders for food and he eats it

while he has no money in his pocket. That amounts to false pretence, the pretence

being the ordering for food with no money.

Ingredients

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The subject matter

Only things capable of being stolen can be obtained by false pretences. Things such as

land or intangible things such as a job cannot be obtained by false pretences.

Obtaining

For false pretence to amount to a crime, the accused must have obtained some

property by pretence and this must be done with intent to defraud. To defraud means to

deceive a person to act to his injury- to deceive so that one loses property. E.g., R v.

Rootes Kenya Ltd Dobbs (1958) EA 13, it was held that before a person can be

convicted of obtaining goods by false pretences, it is not necessary to prove that the

false pretence in fact operated on the mind of the victim provided that the person who

handed over the property, had the authority of the person to whom the false pretence

was made. For example, a housemaid handing over property of her employer which

employer was deceived by a conman and he called the housemaid at home to hand over

the property. It must, however, be proved that the property was obtained by false

pretences.

Blasius v. R (1973) EA 510 where the accused obtained some money from the

complainant pretending to have some fish to sell. He went and he did not come back

until he was arrested by the police.

Other examples include where a person obtains a loan of money by false pretence even

though he intends to repay it because ownership in the particular money lent has

passed to him. Or obtaining a railway receipt by false pretence even though at the end

of the journey the receipt will be returned to the owner.

The offence is still committed where the accused obtains something not for his benefit,

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but for the benefit of some other person. In Mukindia v R (1966) EA 425, the appellant

was convicted on five counts of obtaining money by false pretence. The gist of the

offences charged was that the appellant who managed his father’s timber business

obtained from the complainant cheques for varying amounts by representing claims

supported by invoices which purported to show that the appellant had delivered

quantities of timber to two agents of the complainant, whereas in fact the quantities

delivered were considerably less than those shown in the invoices. The cheques were

paid into the appellant’s father’s bank account and in the course of the trial, the charges

were amended to make it clear that the appellant had received the sums represented by

the cheques for his father. On appeal, it was argued for the appellant that section 313 of

the Penal Code (now section S.305 PCA) does not make it an offence for a person to

obtain by false pretence anything on behalf of another. It was held that the word

“obtains” in section 331 (now S.305) of the Penal Code includes obtaining for another,

provided that that is what is alleged in the charge and that the charges as amended

made it clear that the appellant was charged with obtaining various amounts ‘for’ his

father, and such an offence was contemplated by section 313 of the Penal Code.

Inducing delivery

There is a distinction between obtaining and inducing delivery. Obtaining means

obtaining for oneself and inducing delivery covers the situation where for example A

induces B to deliver to A himself or to C. inducing delivery refers to inducing delivery of

ownership if possession is given to him and ownership is meant for some other person.

It is stealing if the accused fraudulently converts the property to his own use.

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