Court name
High Court of Uganda
Judgment date
27 October 1995

Kagube Mohamed v Uganda (Criminal Appeal-1995/21) [1995] UGHC 10 (27 October 1995);

Cite this case
[1995] UGHC 10
Short summary:

Criminal law, Evidence Law


 KAGUBE MOHAMED:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

The appellant Mohamed Kagube was charged along with two Other people who did not appeal with the offence of theft of cattle c/s 255 of the Penal Code Act. He pleaded guilty and he was convicted and sentenced to 2 years imprisonment. He appealed against both the sentence and conviction. He gave 7 grounds of appeal which were as follows:-
1.       That the conviction was based on an involuntary plea.
2.       That the plea as improper.
3.       That the facts as stated by the prosecutor were partly false, and also did not indicate the appellant’s participation in the crime.
4.       That the trial magistrate misdirected himself on the question of mitigation and thus occasioned a miscarriage of justice.
5.       That the sentence was illegal in as far as it was omnibus.
6.       That the sentence was excessive in the circumstances of the case.
7.       That the trial magistrate erred in law and fact in passing a Sentence which did not provide for an option for a fine.
Arguing the first ground of appeal the learned counsel Mr. Olugwe who appeared for the appellant maintained that the appellant’s plea was not voluntary as that plea was based on duress. In his affidavit in support of this appeal the appellant stated in paragraphs 3 and 5 of the affidavit that he had been forced by one Kalyango to admit
having committed the offence on the undertaking that if he did so he would only be fined but he would not ho sentenced to prison. I found this ground of appeal to be unhelpful to the appellant because on reaching the court there was no duress from anybody as he was standing in the dock alone and there is no record in court that he pointed out anywhere that Kalyango the LDU had forced him to admit the crime. I find ground no.1 of this appeal to have no merit and I reject it as such.
On ground no. 2 the learned counsel for the appellant maintained that the plea was improper and it did not amount to a plea of guilty. In the plea the accused simply said “I admit I did so.” Here I must point out that it was quite irregular for the trial court to have takes the plea of the appellant for both main count and the alternative count after the appellant had pleaded guilty to the main count. There was no need to ask him to plead to the alternative count which automatically became redundant the moment the appellant pleaded guilty to the main count. It was irregular for the trial court to simply record: “I admit I did so,” without complying with the provisions of section 122(2) of MCA and the rules laid down in Adan v. Republic (1973) EA 445.
Another irregularity is that after the plea of the accused had been taken the court ought to have recorded his plea as a plea of guilty but not to wait until the facts had been narrated and then record a plea of guilty; in the same breath it must be pointed out that this proceeding was not in accordance with the rules which were established
in the case of Adan v. Republic (1973) EA 445. I find that the second ground of appeal was validly raised.
In the third ground of appeal the learned counsel for the appellant argued that the facts as stated by the prosecutor did not reveal that the appellant was one of the people who had participated in the theft of the bull. I have looked at the proceedings of the lower court and these proceedings do not show any where that the accused was one of the who stole the bull or that he was found with it. The salient part of the facts as narrated in the lower court reads as follows:- “The group took cover in the neighbourhood. While taking cover they saw Wante and Majembere coming and untying the bull. While, about to take it away they were arrested. Upon arrest they said they would lead detectives to