[2023] UGHCCRD 194

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **CRIMINAL DIVISION CRIMINAL REVISION NO.38 OF 2022** ARISING FROM BUGANDA ROAD CRIMINAL CASE NO.199 OF 2022 OLOO JARED AKUMU------------------------------APPLICANT **VERSUS**

**UGANDA-----------------------------RESPONDENT**

# **BEFORE HON: JUSTICE ISAAC MUWATA**

### **RULING**

Pursuant to section 17 of the Judicature Act and Section 48 and 50 of the Criminal Procedure Code Act, the applicant applied for revision on the following grounds;

That the lower court acted without jurisdiction when it $\overline{1}$ ) conducted the impugned trial by which the accused/applicant was convicted and accordingly sentence.

$2)$ That the lower court acted illegally, irregularly and improperly when it conducted a trial relying on a grossly defective charge sheet thereby occasioning a miscarriage of justice.

That the lower court acted illegally, irregularly and improperly $3)$ when it reached a decision that unjustifiably and disproportionately violates the right to freedom of speech and the accountability principle enshrined in Article 29(1) of the Constitution and para XXVI of the National Objectives respectively and thereby occasioned a miscarriage of justice.

That the lower court acted illegally, irregularly and improperly $4)$ when it passed a disproportionate harsh and excessive sentence.

The applicant also prayed that the impugned judgement, conviction and sentence of the lower court be set aside and the applicant be set free.

### **Representation**

$\mathbf{1}$

At the hearing of the application, Counsel Isaac Semakadde represented the applicant while learned Senior State Attorney Timothy Amerit was for the respondent.

Counsel for the applicant made oral submissions, while the respondent, did not file a response. The case was adjourned several times to ensure that the respondent was heard, but this was not done. Nonetheless, I will proceed to determine the application.

I have considered the submissions made by the applicant, I shall not reproduce them but I shall refer to the gist of his submissions. I shall also restrict myself to the matters before the trial magistrate, this being a revision application.

### **Consideration**

The object of the revision jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court's revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well. See: Joseph Nduvi Mbuvi vs Republic [2019] eKLR

The principles which will guide a court when examining the issues pertaining to section 48 and 50 of the Criminal Procedure Code include where the decision is grossly erroneous, where there is no compliance with the provisions of the law, where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record, where the material evidence on the parties is not considered, and where the judicial discretion is exercised arbitrarily or

perversely if the lower court ignores facts and tries the accused of lesser offence. See: Prosecutor vs Stephen Lesinko [2018] eKLR

The foregoing provisions convey jurisdiction to this court to exercise revisionary powers in respect of orders of the subordinate courts. This court is therefore possessed of the requisite jurisdiction to hear and determine this application.

The applicant herein contends that the trial proceeded on a grossly defective charge sheet. He pointed out the defects as follows

1. That in count one, the prosecution omitted particulars of the GEO location of the applicant, the computer, data or program used in sending the alleged offending communication in contravention of section 30(3) of the Computer Misuse Act which was still operative at the time and the decision In Dr. Stella Nyanzi Vs Uganda. Criminal **Appeal No.79 of 2019**

$\mathbf{2}$ . Secondly, that in count one, the prosecution omitted particulars of the specific threat allegedly made by the applicant with the intent to place the complainant namely PW2 in reasonable fear of her safety.

Thirdly that the count omitted particulars of the perceived act, $3.$ means of mode allegedly used by the applicant to harass the DPP.

#### Lastly, that the count omitted particulars of the repetition, the $4.$ numerous occasions when the said threat and mode of harassment were allegedly "repeatedly "made.

The applicant also contended that the prosecution was in rush to charge the applicant without first ascertaining the location of his premises which court found to be an essential ingredient of the offence. He cited on the case Matovu Brian V Uganda Criminal Application No.30 of 2022

I will first deal with the issue of jurisdiction as raised by the applicant. Jurisdiction has been defined as the authority which a court has to decide matters that are before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by

## statute and cannot be assumed. See: Uganda V Kassiano Wadri and 31others Criminal Revision No.0002 of 2018

The jurisdiction of a court to try an offence under the Computer Misuse Act is found in section 30(2) (3) (a), (b) of the Act which is to the effect that where an offence under this Act, is committed by any person in any place outside Uganda, he or she may be dealt with as if the offence had been committed within Uganda. For purposes of this section, it shall also apply if the accused was in Uganda at the material time or the computer, program or data was in Uganda at the material time.

In the case of Dr. Stella Nyanzi Vs Uganda. Criminal Appeal No.79 of **2019,** the court while emphasizing the provisions of section 30(3) of the Computer Misuse Act categorically stated that proof of identity and residency of the offending computer, program, or data and the offender in relation to the committal of an offence as brought under the computer Misuse Act is crucial before a court can purport to try a case brought under the Act. The court went on to add that section 30 clearly directs in very clear provisions as to how a court seizes jurisdiction and failure to determine the same from the onset may have serious consequences.

I shall adopt wholly the above position in relating the above with what is on the lower court record to ascertain whether the court was vested with jurisdiction. The main prosecution witness who testified on behalf of the prosecution was ASP Ndyamuhaki Dickson Bill a Cyber Crime Investigator and Forensic Analyst attached to CID Headquarters.

It was his evidence that he received a request to investigate email communication between the applicant and the complainant the DPP. The request was to analyze earlier email communication, extract the email reader for purposes of establishing the IP address used and to extract any information that would be of evidential value.

In his evidence and with regard to the first email sent on the 15th /09/2021, he stated that he established the source IP address as 209.85.215.196 and the host name was mail PG-FI96.google.com. He then came to a conclusion that the IP address belongs to google email servers and that the email was received from the accused's Gmail. He also stated

that the IP address showed that the email was received from google servers

With regard to the email received on the 02/11/2021, PW1 told court that he established its source IP address as 209.85.214.19 belonging to google mail servers.

What is clear from the lower court record and the evidence of PW1 is that the report was not able to establish or specifically prove the exact location of the accused at the time the offensive communication was sent. This is because when you send an email, the IP address that you get from the mail headers is not your own, but of a Google server.

Even if someone manages to find an IP address that is not of a Google server, all that they actually have with them is the IP address of an Internet Service Provider (ISP), and nothing more. Any location that might be linked to that IP address would correspond to where the ISP is. The report ought to have clearly established the digital footprint of the applicant and the exact location of the accused or the program or computer from which the The evidence of PW1 merely offensive communication was sent. established an IP address and the source being google server but it doesn't clearly explain if at the material time the device, program or data were in Uganda.

It is therefore my considered view that the tendered in by PW1 was not conclusive to determine if the offence had been committed in Uganda. It only captured the source IP address and the host name, other than that there were no scientific criteria for testing the accuracy of his conclusion to enable court form its independent opinion. The expert witness ought to have provided more information regarding the computer, program or data and whether at the material time it was in Uganda.

The forensic report did not pinpoint the location of the applicant and the device the applicant used to offend the complainant. The report also failed to show whether the device allegedly used in committing the offence was in Uganda. The alleged offensive communication was not targeted at her phone or computer but rather her official email which is connected to the digital infrastructure identified by PW1 as google server. The location of

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this digital infrastructure and google server were not disclosed by PW1 in his forensic report. The prosecution had all the resources to find such information and avail but they didn't. I therefore find that there was no proof of identity and residency of the offending computer, program, or data and the offender in relation to the committal of an offence as brought under the Computer Misuse Act.

With regard to the charges being defective, the principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defense. See: Sigilani v. Republic [2004] 2 KLR 480

The test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the applicant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defense.

I have looked at the impugned count one wherein the applicant was charged with cyber stalking contrary to section 26 of the Computer Misuse Act. I shall reproduce the particulars;

The particulars were that the applicant on the 15th day of September 2021 and on the 2nd day of November 2021 from unknown place willfully, maliciously and repeatedly used his known address akumu4036@gmail.com to harass Jane Frances Abodo, the Director of Public Prosecutions by sending threatening emails and attachments to her official email address of jane.abodo@dpp.go.ug which she received and viewed from a computer within Kampala District with intention of placing her under reasonable fear of her safety.

The applicant alleges in the first email sent on the 15th September 2021, no threat was extracted or particularized as required. It is indeed true that

the particular threat was not known to the applicant until PW2 gave her testimony, secondly section 26 of the Computer Misuse Act requires the particular threat to be made repeatedly. As rightly defined by counsel for the applicant, repeatedly maybe defined as over and over again, time and again, frequently.

I have looked at the alleged two emails that were allegedly sent to PW2, the emails contain different contents, it cannot be said that the alleged threat was made repeatedly. For a statement to be said to having been made repeatedly, it must occur on two or more occasions. The lower court ought to have considered what repeatedly meant within in the meaning of section 26 of the computer Misuse Act. I therefore concur with counsel for the applicant that the alleged threats and acts of harassment were not particularized, the key ingredients such as repeatedly were not clearly defined.

The question now to answer is whether this defective charge sheet occasioned a miscarriage of justice. Counsel for the applicant submitted that the charge sheet in its current form caused a great embarrassment to the defense as they were not able to prepare adequately their defense.

To come to a conclusion on whether or not a defective charge occasioned a miscarriage of justice, you have to look at the trial process in its totality rather than the defects separately. The aim is to establish whether the trial process can be said to have been fair to the accused person. If the charge sheet has a defect but all the other procedures are followed and the other substantive rights of the accused person are evidently respected in the trial process it will be easier for a court to fairly cure the defect in the charge sheet. It is therefore a question of whether there has been failure of justice.

In this particular case, the particulars of the threats and harassments were not clearly brought out in the charge sheet. Some of the words used in the particulars were ambiguous to enable the applicant understand the nature of harassment towards the complainant. The prosecution ought to have been very clear from the onset with the nature of the threats. It is not enough to state that someone has been harassed, the particulars must be clear on the specific nature of the harassment.

$r - 7$ $\boldsymbol{\mathcal{H}}$

Taking this into consideration with the fact that the learned trial magistrate failed to clearly establish the territorial jurisdiction of this matter within the meaning of section 30 of the Computer Misuse Act, I find that a miscarriage of justice was occasioned when the applicant was convicted on a defective charge sheet, tried before a court not seized with jurisdiction contrary to section 30 of the computer Misuse Act.

Accordingly, the conviction of the applicant is quashed, the sentence is set aside and he should be immediately set free unless being held on other

lawful charges I so orde 7/09/2023

JUDGE