Court name
High Court of Uganda
Case number
Civil Appeal-1995/6789
Judgment date
31 March 1995

Waiswa & 3 Ors v Uganda (Civil Appeal-1995/6789) [1995] UGHC 19 (31 March 1995);

Cite this case
[1995] UGHC 19
 
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA 

CRIMINAL APPEAL NO. 6,7.8.9/95
FROM KAMULI CRIMINAL CASE NO.MJ. 45

1.       WAISWA RICHARD
2.       FULUMYA SAMUEL ALIAS FULUTU
3.       SOSANI KAKEDE
4.       BAKAALI ZEDEKIYA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS
 

VERSUS

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;:::::::::::::::::::RESPONDENT

BEFORE: THE HONOURABLE JUSTICE C.M. KATO


JUDGMENT

This judgment is an appeal against conviction and sentence imposed upon the 4 appellants my Magistrate Grade I sitting at Kamuli court. The first and second appellants (A1 and A2) were charged with the offence of assault occasioning actual bodily harm c/s 288 of the Penal Code Act in count 1, they were in addition charge with the other 2 appellants (A3 and A4) for similar offence in the second count. They pleaded not guilty and they were tried by the learned Grade I Magistrate who found the first 2 appellants guilty on both counts and she convicted them accordingly, she however cautioned them for the 1st count but sentenced them along with the 2 appellants to 2 months imprisonment in count 2 they all appealed against both sentence and conviction.
They gave 4 grounds in support of their appeal which are as follows:-
1. That the learned trial Magistrate erred in law and fact when she held that (if at all they were assaulted), the appellants had assaulted the complainants.
2. The learned trial magistrate erred when she failed to believe the defence story given the contradictory evidence of the prosecution witnesses.
3. The learned trial magistrate erred to find and hold that an offence of assault occasioning actual bodily harm and has been proved.
4. alternatively and without prejudice to the foregoing, given the facts of the case as a whole, and the fact that the appellants were first offender and on cautioning them on the first count, the custodial sentence of 2 months imprisonment imposed on the appellants for the same type of offence is not only excessive but is justifiable in the circumstance.
On the 1st ground of appeal Mr. Tuyiringire who appeared for all the appellants argued that the learned trial magistrate was wrong in holding that the appellants ever assaulted the complainants. It was his contention that the appellants did not assault anybody and it there was any assault that assault was carried out by Isabirye and Mutasa who went to affect arrest on PW1 and PW3 who had resisted the arrest. It was also his view the PW2 had exonerated A4 who should not have been convicted at all in count 2.
On his part Mr. Okwanga who appeared for the respondent maintained that the appellants had in fact assaulted the 2 complainants and their evidence was supported by that of Clinical Officer (PW7) who examined the 2 complainants. He also argued that the complainants had common intention and therefore the finding of the trial Magistrate on common intention should be upheld.
Upon considering the evidence on record I find it difficult to agree with Mr.