[1992] UGHC 49

IM THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL REVISION NO. DR. MFP 11/92 ORIGINAL CRIMINAL CASE NO. MFP 451/91 UGANDA ==VERSUS== BAMWINE DEO.

The accused in the above case was charged of threatening violence Contrary to Section 76 (a) of the Penal Code. The case was handled by the learned Grade I Magistrate Mr. Kisawuzi. He recorded evidence from four witnesses and adjourned the case for further hearing\* At that time the accused applied for release on bail from the trial Magistrate but the application was turned down on the pretext that the accused was likely to interfere with the prosecution witnesses.

On the new hearing date the trial Magistrate Mr. Kisawuzi did r»of turn up to continue with the trial and consequently the Court file landed before one Mr. Nyamutale Magistrate Grade III who proceeded to release the accused on bail. On learning of this Mr. Kisawuzi cancelled the accused's bail and referred the file before this Court with a view to ^a possible revision order.

Under Section 74 (2) of the Magistrates Courts (Amendment) Art, Act ⁴ ef I985 a Chief Magistrate may in any case other than the casern mentioned in Section ⁷⁴ (I) (a) (b) & (c) direct that any person te whom ba: ¹ has been refused by a lower Court within the area of his jurisdiction be released on bail oi' that the amount required on bail bond he reduced.

' hen contacted about the matter the Resident S.eaior State Attorney replying on behalf of the Director of Public prosecutions in his letter reference No. Misc/2 dated 31st August, ¹⁹⁹² stated that he did not wish to be heard in the event of a revision order.

As evidenced from above provision of the law once bail had been refused by the Magistrate Grade ^I Court it is only the Chief Magistrate who had the requisite jurisdiction and or power to grant

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bail to the accused person and not the Magistrate Grade III. The release of the accused person on bail by Mr. Nyamutale Magistrate Crade III therefore was to say the least illegal. The order of the Magistrate Grade III releasing the accused on bail is set aside and I order that the file be placed before the Chief Magistrate who is competent to handle the bail application.

However before I sign off there is one matter which can not escape the comment of this Court. S. 233 (I) of the Magistrates Courts Act 1970 spells out supervisory powers of a Chief Magistrate. Under that Section a Chief Magistrate may call for and examine the record of any proceedings before a Magistrates Court inferior to him within the local limits of his jurisdiction for the purpose of satisfying himself as to the correctness, legal or proprietary of any finding, sentence, decision, judgment or order recorded or passed, and as to the regularity of any proceedings of such Magistrate.

It is further provided in the same Section that if a Chief Magistrate is of the opinion that any finding, sentence, decision, judgment or order is illegal or improper or that any proceedings are irregular he shall forward the record with such remarks therein as he thinks fit to the High Court.

In the instant case the Magistrate Grade I discovered that there were irregularities in the handling of the bail application by the Magistrate Grade III because of that irregularity he cancelled the accused's bail and forwarded the record to this Court. With due respect he did not have the supervisory powers to have acted as he powers did. Such powers are only conferred on a Chief Magistrate which he usurped. What he would have done in the circumstances was only to refer the record to the Chief Magistrate with some comments for necessary action. Thereafter the Chief Magistrate would have referred the record to this Court for necessary action. $...$ /3

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From what has transoir^d above the Chief Magistrate is enjoined to see to it that this ruling is brought to the attention of the Magistrates concerned so that such mistakes are not repeated in future.

( I. MUKANZ'A ) JUDGE. 23/9/92.