- Criminal law
- Case summary
- Court considered whether the application for revision should succeed. Court held that the application would succeed despite the odds. Court was satisfied from its findings that the respondent was not in court nor was he represented and no efforts could be shown by the applicant to have been take to secure the attendance of the respondent. That notwithstanding, the application had been brought to court way beyond its time limit. For that matter the application would not succeed however court relied on the provisions of the judicature statute that provided for instances where high court is provided with no procedure it can adopt a procedure justifiable to fit the circumstances. For that matter court found the trial court to have erred while awarding the sentence for law provided imprisonment only and not fine in alternative. The file was ordered to be taken back for the correct sentence to be awarded. Accordingly court granted the application for revision.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MBARARA
MATSIKO SAMMY ……………………………………………………………RESPONDENT
BEFORE: THE HON. JUSTICE P. K. MUGAMBA
This is an application brought by the State. It seeks for a revision of the sentences passed by the Chief Magistrate, Rukungiri, whereby the Chief Magistrate imposed sentences of a fine instead of the mandatory custodial sentences provided for under S.257 of the Penal Code Act.
At the hearing of the application Mr. Waninda, State Attorney, appeared for the Director of Public Prosecutions. The respondent was neither in court nor was he represented. The learned State Attorney casually stated that the respondent has absconded without indicating what efforts had been made to look for him. S.341 (2) of the Criminal Procedure Code Act provides that no order shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence. The application would not succeed in the absence of this vital requirement, just as is the case here.
Secondly, S.34 1 (8) of the Criminal Procedure Code Act provides:
‘Where an application is made by the Director of Public Prosecutions under the provisions of subsection (1) of this section to make an order to the prejudice of an accused person, such application shall be lodged with the Registrar within thirty days of the imposition of such sentence unless, for good cause shown, the High Court extends the time.’
The sentence in issue was imposed on 16th May 2002. This application was lodged with the Registrar on 30th July 2002, clearly beyond the time limit provided for such application. No good cause was shown for extension of time.
I find the application is not properly before this court.
Nevertheless this court would invoke S.4 1 (2) of the Judicature Statute which provides:
‘Where in any case no procedure is laid down for the High Court by any written law or by practice, the court may, in its discretion adopt a procedure justifiable by the circumstances of the case.’
I find S.257 of the Penal Code provides that on conviction a term of imprisonment for not less than three years and not more than fourteen years is the only punishment provided for. Any sentence must be within the parameters. I can’t close my eyes to the fact that by imposing sentences of a fine the Chief magistrate erred. I would therefore order that this file be sent back to the Chief Magistrate in order that he may impose sentences of imprisonment as contained under S.257 of the Penal Code Act. The earlier sentences are to be set aside.
13th August 2002
Mr. Murumba for the State
Ms Tushemereirwe court clerk
Court: Ruling delivered.