[1991] UGHC 61

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THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL REVISION ORDER NO. 66/91 (ORIGINAL CR. CASE NO. MCPA 35/88 )

UGANDA t::: t: j:: i:i:::::::::::::i::: PROSECUTOR VERSUS

JUMA ABOSI & ANOTHER t:::::: ^s:::::::: ACCUSED I BEFORE: The Hon. Justice Okello:

## REVISION ORDER:

The accused were jointly charged with and both convicted on their own pleas of guilty in two counts of giving false information to a person employed in the Public Service contrary to section\*1O9(c) of the Penal Gode Act. Accused ¹ was alone charged in count's 4 and ⁵ with and was convicted also on his own plea of guilty of unlawful possession of Government Stores contrary to section 300(2) of the Penal Code Act, and of receiving or refiningstolen property contrary to section 298(1) of the Panel Code Act respectively. They were each sentenced in counts ¹ and ² to six months imprisonment in each count with additional fine of Shs.1000/= \ each in each count or in default to ¹² months impresonment. 'The Prison \ sentences were ordered to run consecutively\*

Accused ¹ was further sentenced to eighteen months imprisonment in each of of the remaining counts 4 and 5» The sentences in counts 4 and 5 were oriented to run consurrently© The sentences against A1 for all counts 1,2,4 and p, put together accuimnulate to 48 months. Under section 169(3) MCA\* ⁷⁰ this is regarded a single sentence for purpose of confirmation and thus attracts confirmation under section ¹⁶⁷ of the I/TCA'7O>

The file was sent to this court for purpose of confirmation of sentence under section ¹⁶⁷ of the MSA170. It was placed before me. On ; perusal I. was satisfied that the convictions were proper as the pleas were clearly unequivocal. ^They were also supported by the narrated facts• I was however of the view that the default sentence in counts ¹ and ² is illegal for contravening section 192(d) of the MCA'⁷⁰ as amended by Act & of 1985- Secondly I was of the view that the trial Magistrate took into account extraneous matters'in passing sentence and I was of the view that this occasioned injustice to the accuseds.

When the file was sent to the'DPP for- his views^Nalwemahyidde-Kabali a state Attorney who wrote for the DPP in his letter ref.6/4/2, of 11/4/91 agreed with ray views that the default sentence was illegal and that the trial Magistrate erred in talcing into consideration extraneous matters in passing sentence. He did not wish to be heard in the event of a Revisional order being made. ^t

Section 192(d) of the MCA'⁷⁰ as amended by Act 4 of 1985 prescribes the maximum default sentence for a fine of not exceeding Shs.2000/= to only ⁷ days imprisonment. In the instant case each accused was fined Shs.1000/= in each sf ¹ counts ¹ and ² and in default of payment of the fine they were ordered to serve 12 months imprisonment in each count. Clearly that default sentence is illegal. It contravenes the above section. It is accordihgly set aside.

Section 131(2) of the l-ICAl⁷⁰ empowers a Magistrate to make inquiries to inform himself about the accused, his, antecedents, previous convictions before passing sentence. This is to enable him to assess appropriate senterr nee to impose on the accused. Of these, the . agistrates is prohibited from taking into accounts any offence of fchich the accused has not been convicted in assessing sentence unless this is specifically requested by the accused and such request shall have been recorded in writing in the proceedings.

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In the instant case the trial Magistrate gave as his reasons for the sentences $(1)$ that A1 must have misused the army great coat found in his possession for commission of other crimes. Yet there is no proof such crimes.

$3 -$

- (2) that A1 must have also used the syringes found in his possession for commission of numerous crimes. There is also no proof of such crimes either the - (3) that the mm nation had lost millions of citizens in nands of gunmen due to false accusations by least educated and businessmen. that the two accused fall in this category they being of Muslim illiterate class. There was no evidence before the Magistrate that the nation had lost millions of citizens due to false accusations by the least educated and businessmen. As there was: no evidence to support the above facts, the trial Magistrate was not a^t all justified to take: them into account in assessing sentences. There can be no doubt that the Trial Magistrate was influenced by these wrongly considered factors in passing the sentences on the accused. Clearly the accuseds were prejudiced thereby. The sentences must therefore be set aside and in their places the following are substituted. - COUNT $1:-$ Sentence of Imprisonment is reduced from 6 month to 3 month for each accused. The sentence of a fine of $100/$ = is set aside. - COUNT $2:-$ Sentence of imprisonment is reduced from 6 months to 3 months for each accuseds. Sentence of the fine of $1000/$ = is set aside.

COUNT 34- A1. Sentence is reduced from 18 months to 6 months imprisonment.

$\mathcal{L}^{\text{max}}$

$\frac{1}{2}$

COUNT 5:- Sentence of imprisonment is reduced from ¹⁸ months to 6 months.

## ORDER;\*.

All the sentences are to run concurrently. The effect is that the accuseds should be released forthwith as they must have now served nearly the full illegal sentence.

The amount of money paid by the accused as fine in counts ¹ and ² should be refunded to them forthwith.

>31?Ocelli JUDGE.

7/5/91.