[2025] UGHCCRD 6

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

#### (CRIMINAL DIVISION)

## **CRIMINAL REVISION NO. 47 OF 2024**

## ARISING FROM BUGANDA ROAD CRIMINAL CASE NO. 53 OF 2024

$\mathsf{S}$

TWINOMUJUNI ROBERT ....................................

#### Vs.

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UGANDA ....................................

## **RULING**

## **BEFORE HON. JUSTICE GADENYA PAUL WOLIMBWA**

## 1.0. Introduction

This revision application is brought under Sections $14(2)(c)$ , 17 and 33 of the Judicature Act Cap 16; Sections 48 & 50 (1) (b) & (5) of the Criminal Procedure Code Act; and Rule 2 of the Judicature 20 (Criminal Procedure) (Applications) Rules SI 13-8. The Application seeks to revise and set aside the lower court orders delivered on 26^th September 2024, where the trial magistrate declined to stay criminal proceedings in Buganda Road Criminal Case No. 242 of 2024 pending the determination of Mbarara High Court Civil Suit No. 24 of 2024.

- 25 The Applicant bases his Application majorly on three grounds; - 1. There is a real danger of the Applicant being prejudiced if concurrent proceedings are allowed to continue.

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2. If the criminal case is heard before the Civil Suit is determined, there is a high risk of conflicting decisions by the High Court of Uganda and the Chief Magistrates Court of Kampala at Buganda Road.

3. It is in the intcrest ofjusticc that the Application be allowcd

On the other hand, the Respondent opposcd the application to stay criminal proceedings in Buganda Road Criminal CaseNo.242of2024,arguingthatthesuits/proceedingsarenotbetween the samc parties and thc Applicant did not bring out the real danger hc will sufler ifthe two cases arc allowcd to proceed concurrently. ln conclusion, the Respondcnt prayed that the court declines to grant orders to stay proceedings in Buganda Road Criminal CascNo. 242 of 2024 pendingthe determination of Mbarara High Court Civil Suit No. 24 o12024.

### 2.0. Background to thc Application

On l3s June 2022, the applicant (1'winomujuni Robert) and another (Arinailwe Samson) were jointly charged with Ten (10) counts of Uttering a lralse Document contrary to Section 351 ofthe Penal code Act cap. 120 and one (l) count on conspiracy to Defraud contrary to Section 309 of the Penal Code Act Cap. 120. Arinaitwe Samson was individually charged with Ten (10) counts of Forgery contrary to Sections 342,345, and 347 ofthe Penal Code Act Cap. 120. Collectively, the charge Sheet contained 2l Charges. 'l'he particulars ofcach jointly charged count are as follows:

Count 2: Uttering A False Document C/S 351 of thc Pcnal Codc Act.

Arinaitwe Samson and 'l-winomujuni Robert, on the I 8th day of February 2021 at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulcntly uttered a False Document to wit, a forged sales agreement dated 06th June 2020 purporting to havc been signed by Nsekanabo Simon, Musimenta Winfred, Rutaro Richard Apollo, Busingye Edith, Namara Prudence, Kisembo Beatrice Rugarama and Rugarama []etty.

## Count 4: Uttering A Falsc Document C/S 351 ofthe Penal Codc Act

55 Arinaitwe Samson and 'fwinomujuni Robe(, on the lSth day of February 2021 at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulently Uttered a False Document, to wit, a forged acknowledgemcnt rcceipt of money lrom the sale of land purporting to havc been signed by Kisembo Beatrice Rugarama.

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## Count 6: Uttering A False Document C/S 351 ofthe Penal Code Act

Arinaitwe Samson and 'lwinomujuni Robert, on the l8th day of Irebruary 2021 at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulently Uttered a False Document, to wit, a forged acknowledgement receipt ofmoney from the sale of land purporting to have been

65 signed by Nshekanabo Simon.

## Count 8: Uttering A False Document C/S 351 ofthc Penal Code Act

Arinaitwe Samson and Twinomujuni Robert, on the lSth day of February 2021 at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulently Uttercd a False Document, to wit, a forged acknowledgement receipt of money from the sale of land purpo(ing to have been signed by Musimenta Winfred.

## Count l0: Uttering A False Document C/S 351 ofthe Penal Codc Act

Arinaitwe Samson and Twinomujuni Robert, on the l8th day of February 2021 at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulently Uttered a False Document to wit; a forged acknowledgement receipt ofmoney from the sale ofland purporting to have been signed by Namara Prudcnce.

## Count 12: Uttering A False Document C/S 351 ofthe Penal Code Act

Arinaitwe Samson and 'l'winomujuni Robert, on the l8th day of l'ebruary 2021 at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulently Uttered a lralse Document to wit; a forged acknowledgemcnt receipt ofmoney from the sale of land purporting to have been signed by Rugarama Betty. 80

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#### Count 14: Uttering A False Document C/S 351 ofthe Pcnal Codc Act 85

Arinaitwe Samson and Twinomujuni Robert, on the l Sth day of February 202 I at Ntungamo Police Station in the Ntungamo District, Knowingly and Fraudulently Uttered a False Document to wit; a forged acknowlcdgemcnt receipt ofmoney from the sale ofland purporting to have been signed by Rutaro Richard Apollo.

## Count l6: Uttering A False Documcnt C/S 351 ofthe Pcnal Code Act

Arinaitwe Samson and 'l'winomujuni Robert, on the lSth day ol Ircbruary 2021, at Ntungamo Police Station in the Ntungamo District, knowingly and fraudulently uttcred a false document, namely forgcd copies of Nshekanabo Simon's National ldentity Card.

## Count 18: Uttering A False Document C/S 351 ofthe Penal Codc Act

Arinaitwe Samson and 'l'winomujuni Robert, on the l8th day ol lrebruary 2021, at Ntungamo Police Station in the Ntungamo District, knowingly and fraudulently ultered a falsc document, a forged copy of Kisembo Beatrice Rugarama's National Idenlity Card.

#### qh.{ Count 20: Uttering A False Documcnt C/S 351 ofthe Pcnal Codc Act

Arinaitwe Samson and 1'winomujuni Robert, on the l8th day of lrcbruary 202'1, at Ntungamo Police Station in thc Ntungamo District, knowingly and fraudulently ultercd a false document, a lorged copy of Kiscmbo lleatricc Rugarama's National ldentity Card.

## Count 2l: Conspiracy to Dcfraud C/S 309 of the Penal Code Act

Arinaitwe Samson and 'l'winomujuni Robert conspired bctween Junc and Deccmber 2020 in Kampala and Ntungamo Districts to delraud Namara Prudence and others ol their bencficial intcrest/ share in land comprised in Rwampara Block 42 plot 38 Leasehold Rcgister Votume 3027 Folio 9 at Ruhama in Ntungamo District.

ln the lowcr court, the applicant, through his advocate, madc an application vide Criminal Misc. Application No. 53 of2024, seeking to stay criminal proceedings in Iluganda Road Criminal Case

115 No. 242 of 2024 pending the determination of Mbarara High Court Civil Suit No. 24 of 2024. The court, however, declined to stay the criminal proceedings in favour ofthe civil suit and dismissed the application. '['he applicant, being dissatisfied with thc outcome of the ruling, filed this application for revision.

#### 3.0, Represcntation

720 The firm of M/s Mwesigwa Rukutana & Co. Advocates representcd the applicant. Ms. Apoltot Joy, a Senior State Attorney in the Office ofthe Director of Public Prosecutions, represented the Rcspondent.

## 4.0. Argumcnts of thc Parties

## 4.0. 1. The Applicant's Submissions

The Applicants' counsel submitted that the criminal proceedings in Buganda Road Criminal Case No. 242 should be stayed pending the decision in Civil Suit No. 24 of202l at the High Court of Uganda at Mbarara.

130 According to Counsel for the Applicant, civil suit no. 24 of202 I and criminal case no.242 of 2024 are substantially between the samc parties. Additionally, the Civil suit and the Criminal case have the same subject mattcr.

He further argues that the Applicant stands to be highly prejudiced ifthc criminal proceedings are not stayed pending the determination of Civil Suit No. 24 of 202 I in the lligh Court of Uganda at Mbarara.

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In his view, Counsel for the Applicant argues that allowing criminal proceedings to continuc when there is a pending civil suit in Court to determine ownership rights could easily amount to an abuse ofthe court process and equally birth forth conflicting judgments.

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140 He additionally argues that dcterrnining ownership rights ofthe suit land is best resolved through a civil suit, which will directly affect the criminal case.

#### 4,0.2. The Rcspondcnt's Suhnrissions

The respondents argue that two concurrent suits are proceeding concurrently in the different courts with jurisdiction to hear them. l{owever, the subject matter in the two suits is different. Therefore, the outcome of Criminal Casc No. 242 2024 at Makindye Chief Magistrates Court and Civil Suit No.24/2021 instituted at the I{igh Court Mbarara won't be similar.

The Respondents fu(her argue that the parties in both suits arc differcnt because the state took over the matter upon charging the applicants and bccame the party to the criminal case.'fhis privilege did not extend to the Civil Suit where the statc is not a party.

l,astly, the respondent argues that the applicants did not mention the real dangers they are expected to suffer if the two cases are allowcd to proceed concurrently and how the continued prosecution of the criminal case would constitutc a miscarriage ofjusticc in terms of the applicant's ability to defend himself in court in the civil matter.

#### 155 5.0. Issues for Resolution

- l. Is this a proper application for revision? - 2. Should the criminal proceedings in Buganda Road Criminal Case No. 242 be stayed?

#### 6.0. Considcration of the Application

- Revision is a cost-effective measure through which the High Court corrects errors and irregularitics ofthe lower courts, saving litigants timc and expenses involved in prosecuting appeals. Revision may either be commenced by letter or application or the High Court calling for the inspection of the lower records to ensure compliancc with thc law or by a formal application. Rcvision can also be commenced by thc I ligh Court if, in exercising its supervisory powcrs of magistrates courts, it 160 .eJ - finds crrors worth dcserving its attention. Revision must aid digestion rather than constipate the legal system.'fhis is why the power ofrevision must be exercised sparingly and only in deserving cases to avoid a miscarriage ofjustice and unnecessary interventions by the lligh Court in the work ofthe lower courts. 165

## Issuc Onc: Is thc mattcr amcnablc to Rcvision?

770 Section 50 (5) ofthe Criminal Procedurc Code Act provides that

"Any person aggrieved by any finding, sentence or order made or imposed by ^a magislrale's courl moy pelition the High Courl to exercise its powers ofre,vision under this seclion. Still, no such petilion shall be enterlained where the petitioner could have appealed against the fnding, sentence or order and has not appealed."

1,7 ⁵ The above section permits any person aggrieved by a finding, sentcnce or order made by ^a Magistrates Court to petition the High Court to revise the mattcr complained of. Howcver, this section excludes a petitioner who had a right to appeal but chose not to appeal from petitioning for revr sron.

The Applicants, by a formal application, moved thc Chief Magistrate, Buganda Road Court, to stay the hearing of Criminal Case number 242 of 2024 because there was a civil case arising out of the same facts in the I'ligh Court, which had been filed much carlier. Although the Chief Magistrate found that the two cases arose from the facts and had the same parties, he declined to stay thc criminal matter because the two cascs were seeking different remedies. The order ofthe Chief Magistrate dismissing the application to stay the criminal case is a final order amenable to revision under section 50 ofthe Criminal Procedure Code Act.

Issue Two: Should Buganda Road Criminal Case No. 242's criminal proceedings bc stayed? The Applicants contend that the Chief Magistrate srred in law when he dismissed the application. Counscl for thc Applicant submittcd that the Chief Magistrate should have staycd the criminal case because both cases arc founded on the legality ofthe salcs agrcement for land comprised in LVR

3027 Folio 8, Rwampara Ulock 42 at Katookye, Kaz.aara, Ntungamo district under section 208 of the Magistrates Court Act. IIe relicd on the lollowing cases to support his arguments. 1.90

# Mutonvi in Usanda V Ssonko Edward Criminal Rcvision Apnlication No. l2 of 2019: Scmakula Patrick and thrce others vcrsus Uqanda Criminal Rcvision Numbcr 40 of2023l Musumba Yahava & Anor v Uganda Criminal Rcvision Cause No. 4 of 2019: and Scbulimc 195 Bakcr V Usanda Criminal Apocal No. 2l of2019

These cases postulate that the court will stay the case proceedings ifthe following factors are met.

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- l. 'fhe cases must be based on substantially thc same facts. - 2. The partics must substantially be the same. - 200 3. The remedies sought in the cases must be substantially the same - 4. The case sought to be stayed must have been filed later.

Furthermore, the Applicants contcnded that they would be prejudiced ifthe criminal case was not stayed. 'fhey also submitted that kceping the criminal proceedings at Buganda Road Court would be in the interests ofjustice.

2os On the other hand, the Respondcnt contended that criminal cases, though founded on a sales agreement, which is the basis of the civil matter, have different remedies. In a criminal trial, the DPP sceks to punish the alleged criminal conduct ofthe accused persons. ln civiltrials, the parties seek damages and court orders to restore the land.

Furthermore, the Respondent contended that no law provides for staying criminal cases in favour ofcivil matters, that the criminal and civil cases are different, that the parties are not the same, and that, lastly, the applicants have not shown that they will be prejudiced if the criminal case is not stayed.

# l. Thc Lcgality of the Application to Stay the Criminal Casc undcr Scction 208 of thc Magistrates Courts Act Cap. 19

215 6{N Before I delve into the mcrits oflhe case, it is important to consider the legality ofthe application to stay the criminal case before thc 'Irial Chief Magistrate. 'lhc Applicant moved the Trial Chief Magistrate to stay the criminal casc under Section 209 of the Magistrates Courts Act. This section, which has since been renumbered to Section 208, provides as follows:

No magistrates' court shctll proceed with lhe trial oJ any suit or proceeding in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceeding between lhe same parties or between parties under whom they, or any of them, claim, litigating ttnder the same title, where that suit or proceeding is pending in the same or any olher courl having originol or appellate jurisdiction in Uganda to grant the reliefclaimed.

225 230 Section 208 is found in part XX of the Magistrates Courts nct, under part XX -Civil Jurisdiction of Magistrates' Courts and provisions relating to exercising that jurisdict ion. Section 208 is placed under part XX ofthe Act to guide Magistrates Courts exercising civiljurisdiction. The marginal note to section 208 is aptly phrased as a stuy ofa suit. Although marginal notes play a secondary role in interpreting a statute, they are helpful when thc section is ambiguous or complex. Marginal notes arc also helpful in statutory interpretation ifthcy are similar to the wording in thc section.

IJere, they reinforce the meaning ofthe section. Additionally, while marginal notcs are not part of the Act, they may, subject to thc limitations noted abovc, be a good guide to the legislature,s intention 10 pass a specific section.

23s Section 208 ofthe Magislrates Courls Act applies to suits and procccdings. -l-hc phrase "suit or procecding" belongs to the civil family, not criminal law. I am emboldened in this interpretation

by the location of the section under Chapter XX of the Magistrates Courts Act on the civil jurisdiction of Magistrates and the marginal note, which aptly says that section 208 applies to ^a stay of a suit. I am equally guided by the reccnt dccision of the Court of Appeal in IJgg. Udg\$.

240 245 Kamoga Muhammadi. Criminal Appeal Numher 646 of 2023. where thc court found that "nr.r specific luw provides for a slay of criminal cases." Therefore, a purposeful interpretation of Section 208 limits it to civil proccedings, and Magistrates Courts can apply Section 208 when thcy are sitting and exercising civil jurisdiction. Civen this, the applicant's request to the Trial Chief Magistrate to stay the criminal case under Section 208 of the Magistrates Courts Act was improper, as the magistrate was not exercising civiljurisdiction but rather criminal jurisdiction. Similarly, the Applicants cannot take advantagc of section 208 of the Magistrates Courts Act to stay thc criminal proceedings at Buganda Road Court.

## 2. Merits of the Application

Will the Applicants Be Prejudiccd if the Cases are held Simultaneously or if the Criminal Trial is not Staycd?

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2s0 Although there is no spccific law providing for a stay olcriminal cases, the Court ofAppeal in the recent case of observed that:

> Criminal proceedings emanaling from lhe same facts as civil proceedings connot be stayed because of the latter unless serious grounds may offect a party's right to a fair hearing as provided in the Constitution.

Although the Court ofAppeal did not define what serious grounds mean undcr this limb, it guided that the court may, undcr its inherent powers, stay proceedings ifthe continued hearing ofthe case may constrain the applicant's right to a fair trial as protected in Article 28 ofthe Constitution. The Applicant must show that concurrent hearing ofthe cases will prejudice them.

260 In Jeffcrson Limited vs. Bhctcha 1979 WLR 898, thc court observed lhal "deciding whelher lo slay civil proceedings in favour of criminal proceedings is a maller ofdiscretion to be exercised by reference to the competing considerotions." The Court said, "One factor to be considered in deciding to stay or deny lhe stay wos u,hether there vas a rcal danger of causing injustice in the criminal proceedings, for example, if publicily mighl influence potential jurors in the criminal 265 proceedings or if disclosure of the defence might enable prosecution witnesses to prepare a fabrication ofevidence or might lead lo interference with witnesses."

In the English case ol I).-D r--^ir-l I)- n.rs onrl nrhar ll,rval.r.,. P--1, trl a lrolTt l.wrra. 28q7 (Comm). the defendant applicants succeeded in their application for thc stay of civil proceedings in the Commercial Court until thc parallcl criminal trial brought by the Serious Fraud Office (SFO) in the Crown Court concluded.

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The two sets of proceedings arose from the same underlying facts, namely Barclays's capital raisings during the financial crisis of2008. Part ofthe hearing had to be held in private due to the highly confidential and sensitive nature of some issues that overlapped between the civil and criminal proceedings.

- 215 'fhe Commcrcial Court trial was due to commcnce in January 201 8 and was estimatcd to last eight weeks. l'he Crown Court trial was duc to begin in January 2019 and was estimated to take about l2 to l6 weeks. The Commercial Court had dccided to list thc civil trial first before the SI. O made ^acharging decision (which occuned in June 2017). -lhe Defendant submitted that the test of whether to stay proceedings should be considcred in three stages as lollows: - 280 ^I. The court must be satisfied there is sufficient overlap between the issues raised in the civil and criminal proceedings (Re DPR Furures |989) I WLR 778). - 2. Where such overlap does exist, the court must consider whether there is a real risk of serious prejudice, which may lead to injustice in the criminal and/or civil proceedings. - 3. Proceedings should not be stayed if safeguards can be imposed that provide sulficient protection against the risk of injustice. - 285 - 4. The court has to balance justice between the parties.

The High Court found that there was a "very significant" overlap between the two sets of proceedings, noting that:

"Both trials will lrqverse in delail events and statements at a time of greot consequence for all institutiorx and individuals involved. Both trialswill emmine the reasons fitr and the purpose of statements and actions, where made or undertaken. Both trials will

examine responsibilities for what was or was not said or done and levels of information and states of mind."

As to whether there was a real risk of jury contamination or witness contamination, the court observed that these two distinct, albeit related, risks formed the basis of the applications to stay the civil 295 proceedings.

The court also acknowledged that "the Commercial Court trial (and resulting judgment) would likely attract heavy reporting, given the connection between this case and the financial crisis, the serious allegations made, and the high value of the sums claimed." Knowles J noted that, "there

300 was a "real risk" that the jury's already complex task would be made more difficult still by publicity surrounding an earlier Commercial Court trial, the outcome of that trial as contained in a judgment, and that the current application allowed consideration of how to manage that risk *before it arose.* "Knowles J also considered the possibility of witness contamination and ordered a stay.

In Akcine Bendrove Bankas Snoras (in bankruptcy) vs Vladimir Antonov Raimondas 305 Baranauskas [2013] EWHC 131 (Comm), Mrs Justice Gloster DBE summarised the relevant principles applicable to staying civil proceedings as follows:

i) The court has a discretion to stay civil proceedings until related criminal proceedings have been determined, but it "is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice";

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ii) The discretion has to be exercised by reference to the competing considerations between the parties; the court has to balance justice between the two parties; a claimant has a right to have its civil claim decided; the burden lies on a defendant to show why that right should be delayed; see Panton v Financial Institutions Services Limited [2003] UKPC 8 (PC) at [11].

iii) A defendant must point to a real, and not merely notional, risk of injustice. As the Privy Council 315 *stated in Panton (supra):*

iv) The fact that a defendant has a right to remain silent in criminal proceedings, and would, by serving a defence in civil proceedings, be giving advance notice of his defence, carries little weight

in the context of an application for a stay of civil proceedings. There is no right to invoke the 320 privilege against self-incrimination in relation to putting in a defence, as compared with the right in civil proceedings to invoke the privilege where a defendant is being interrogated, being compelled to produce documents or cross-examined; see per Waller LJ in $V \vee C$ [2002] CP Rep 8, at paragraphs 37 and 38...

v) Moreover, today, even in criminal proceedings, at least in England and Wales, a defendant is 325 expected to adumbrate a positive defence at an early stage. Thus, the disclosure of a defence in civil proceedings is unlikely to disadvantage a defendant in criminal proceedings; see ibid at paragraph 38.

vii) It is not enough, as Briggs J observed in FSA v Anderson [2010] EWHC 308 (Ch) at [19], that both the civil and criminal proceedings arise from the same facts, or that the defence of the civil 330 proceedings may involve the defendant taking procedural steps such as exchanging witness statements and providing disclosure of documents which might not be imposed upon them in the criminal proceedings.

viii) As Mr. Zacaroli submitted, a defendant thus has a choice between remaining silent in the civil proceedings or risk giving an indication of his defence which may be used by the prosecuting authorities. The harshness of such a choice did not provide a good ground for staying civil 335 proceedings in V v C (supra) or in Jefferson Limited v Bhetcha [1979] 1 WLR 898.

ix) In the event that the court were to be satisfied that there would be a real risk of serious prejudice leading to injustice if the civil proceedings continue, then the proceedings should nevertheless not be stayed if safeguards can be imposed in respect of the civil proceedings which provide sufficient

protection against the risk of injustice: see, e.g. Re DPR Futures [1989] 1 WLR 778, per Millett J 340 at 790G; A-G for Zambia v Meer Care & Desai & Ors (supra) at paragraphs 30-33.

From the above English cases that are persuasive in this Country, before a court can stay whether a criminal or civil case in favour of the other, the following conditions must be satisfied:

The Applicant must prove they will be prejudiced by the simultaneous hearing of the cases. a)

345 $b)$ The power to stay proceedings is discretionary. c) The court must exercise its discretion by rcferring to the competing considerations between the two parties. The court must balance the claimant's right to have his claim decided and the defendant's quest to delay that claim.

There must be an overlap between civil and criminal proceedings regarding issues to be

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d)

- determined. - There must be a risk ofjury or witness contamination. e) - There must be a real risk ofprejudice, which may lead to injustice ifthe casc sought to be stayed is not stopped. l) - Howevcr, even ifthe court finds actual prejudice, the procccdings should not be stayed if safeguards can bc imposed to protect against the risk of injustice. s)

# The safeguards includc-

- a) Order restricting reporting - b) Orders that the civiI or criminal trial will sit in the private. - c) Order cmbargoing the civiljudgment until the conclusion ofthe criminaljudgment.

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Although the above principles were mainly concerned with civil cases, they apply to criminal cases because they all protcct the right to a fair trial. 360

Applying the above principles and the cxceptional clause in Knr1qgeth-g3;g to the instant case, it is my finding that:

- a) There arc indeed two cases a Land case and a Criminal 'frial. - b) The two cases are premised on the contested salc of land and documentation used in the sale. 365 - c) The two cases will test the validity of the sale of the land. - d) In both cases, the courts shall rely on the same documents to detcrmine whether the land sale was valid or fraudulent. - e) The court will likely take the documents involving the disputed land as exhibits. 370 - f) However, the cases may or may not involve the same witnesses, thus ruling cases of witness contamination.

- s) Depending on thc schedules ofthe respective courts, thc applicant will have to attend the criminal trial and land case at the same timc or at different times. llowever, no conflicting schedules will cxist since the fligh Court takes precedence over magistrates Courts. - h) The parties in both cases are different. In the criminal casc, the DPP is the complainant, although she may rely on the Respondents to testify as a potential witncss. In the land case, the Applicant and Rcspondent are the parties. - i) l'he remedies sought in both cascs are different. In civil, the court has becn asked for damagcs and cancellation of title. In criminal cases, the DPP seeks penal sanctions. - .i) 'fhe courts may reach different conclusions about whether the sale ofland was valid. This is not unexpected, as thc standard ofproofin a civil matter is lower than in a criminal case. 1lowever, this possibility does not extend to the allcged forgcry of identity cards and other documents or thc utterance of false documents. - 38s k) Lastly, the DPP has a constitutional imperative to fight crime on behalfofthe public. The DPP's mandate can only be limited in deserving circumstances.

'l'hc qucstions that mcrit considcration lrom thc above findings aro

- l. Does the simultaneous hearing of the criminal case with thc land case prejudice the Applicants, or will the Applicants' right to lair trial be intcrfered with if the two cases are allowed to proceed? - 2. Ifthe criminal trial is not stopped, will the Applicants' rights to defcnd themselves in the civil trial be constrained? - 3. Is therc a strong possibility that the criminal and civil courts will make conflicting decisions? - 395 4. Will the disposal of the civil matter dispose of the criminal case? - 5. Will the simultaneous hearing of the cases lead to a miscarriage ofjustice?

# Considcration 4: Will thc Disposal of thc Civil Casc Dispose of the Land Casc?

The Applicant argucd that the civil land case will dispose ofthc criminal matter once the sale of the land is found to be valid. This may wcll be, but that is only if the court considers whether the sale was fraudulent. l]owever, in this case, lhe Applicants are charged with other offences, including forgery of identity cards, forgery ol acknowledgemcnts notcs and uttering false

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documents. While the civil court will refer to them, it will not thoroughly investigate them since its jurisdiction is limited to examining whether the land was sold fraudulently. And even if the land is found to have been sold lawfully, this may not fully answer whether the national identity cards and acknowledgements for receipt of the moncy were forged. These are matters that the criminal court will be in the best position to investigate rather than a civil court.

Consideration l, 2, & 5: Docs the simultaneous hearing of the criminal case with thc land casc prcjudicc thc Applicants, or will thc Applicants' right to fair trial bc intcrfered with if the two cases are allowcd to procecd? Will the Applicants suffer Prejudice by concurrent adjudication of thc cascs, and Will thc simultaneous hearing of the cascs lcad to a miscarriage of justicc?

To be prejudiced significs a detrimental impact on a party's position in a case. As the Court of Appeal said in the Kangga-eefq, a party is deemed prcjudiced ifconcurrent proceedings severely constrain their right to a fair trial and cause injustice. Articlc 28(l) of the Constitution provides €\*d that:

In delermining civil obligations or any criminal charge, a person shall be enlitled to a fair, speedy and public hearing before an independent and imparlial court or lribunal established by law.

420 At the heart of the right to a fair trial is the right to present evidence in support of one's case, adcquate time to prepare and present one's defcnce or case, be afforded adequatc facilities to examine witnesses and obtain thc attendance ofother witncsscs, and the right to be treated fairly in a court of law.

425 It is the Applicant's case that thcy will be prejudiced in the civil case if the criminal case is not stayed. Although the Applicants did not detail how the concurrent hearing of the cases would prejudice them, I can gather from their arguments made in the application that the prejudice is premised on the possibility of having two conflicting decisions and the inconvenience of going through a criminal trial given that the civiltrial may dispose ofthe matters in controversy between the parties. The Rcspondent did not spccifically respond to this point but argued thal nothing can

430 stop the two cases from going on simultaneously.

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'l'he applicants will find attending and preparing for two cases challenging, especially ifthe courts do not schedule them appropriatcly. Engaging counsel in both cases will require time and money. Additionally, the Applicants will need to mobilise witnesses for each case. 'l'hese activities will subject thc applicants to stress, inconvcnience, and significant sxpenscs.

- 435 However, these challenges can be alleviated by effective scheduling and case management by counsel and the rcspective courts. I am fortified in this belief because our courts are organised. They will give the parties adequate time, space, and flexibility to present their cases within reasonable time limits. In any casc, prima facie inconvenience ofa party to present their case does not amount to prejudice. - 440 4iN The situation would have been different ill had found witness tampering or contamination threats. I saw no such threats. 'l'herefore, while the applicants may experience some inconvenience in altcnding two courts, the concurrcnt hearing of the cases will not prejudice them or deny them their right to a fair trial.

### Consideration 3: Possibility of Conflicting Decisions

- The Applicant submitted that if the criminal trial is not staycd, there is a real possibility ol the courts coming up with conflicting decisions. 'l'his may be partly correct as far as the alleged fraudulent sale of the land is concemcd. However, this is incorrect regarding whether the Applicants allegedly forged national idcntity cards and acknowledgement letters. This finding belongs to criminal law rather than civil law, where the applicants face charges regarding their 445 - forgery. Besides, given that the burden of proof differs in civil and criminal cases, the possibility ofcourts coming to different decisions is not remote. Courts should rcach the same conclusions on the same facts, but because civil cases have a lower standard of proofthan criminal cases, a civil court can come to a favourable decision evcn when a criminal court has come to an adverse dccision. 450

#### 455

## 7.0. Obitcr on High Court Dccisions Beforc the Kamoga Casc

Before I takc leave of this matter, I wish to note that the High Court, in several decisions before the Kamopa case, had stayed criminal cases in the Magistrates Court under scction 209 (now 208) 460

ofthe Magistrates Courts Act. The courts had interpreted section 209 (now 208) ofthe Magistrates Courts Act as giving them powers to stay criminal proceedings provided certain conditions were met. Howcver, as the Court of Appeal decided in the Kamopa case and having reconsidered section 209 (now 208) ofthe MCA, the law docs nor cover the stay of criminal trials.

Secondly, the Director of Public Prosecutions has a Constitutional duty to prosecute cases and fight crime on behalfofthe public under Article 120 olthe Constitution. Protecting public rights

465 to safety takes precedence over private rights. Under Article 120(5), thc DPP can only be constrained if it is established that the DPP is not acting in the public interest or the administration ofjustice or is abusing the legal process, which the applicants have not discharged in this case.

### 8.0. Decision

470 Given the above findings, the Applicants have not madc a case to merit an order staying Buganda Road Criminal Case Number 53 of 2024. The Application is accordingly dismissed. It is so ordered.

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Gadenya Paul Wolimbwa JUDGE 25th February 2025

Ms. Joan'l'umuhikirize, SSA, holding for Ms Apolot Joy Christine, SSA Applicants absent. Mr. Kagwa Court Clerk

Ruling read in open court.

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Gadenya Paul Wolimbwa JUDGE 25th February 2025

490