[1996] UGHC 80

#### THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

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### REVISION CR. CASE NO. 15 OF 95

with the new

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### ARISING OUT OF CR. CASE NO. MKA 72/95.

UGANDA: 111111111111111111111111111111111111

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HERBERT KARAMBUZI::::::::::::::::::::::::::::::::::::

# CRIMINAL REVISION

This file was passed over to me from the criminal registry with a view $\cdots \cdots$ to criminal revision. This file originated from Kabale and I did not see any loose forwarding the file this way from the chief nagistrate Kabale. The issistant Registrar crime did not see it fit to favour me with comments when forwarding the same to my chambers either this was in my considered opinion highly improper since there must be reason for sending files with a view to have the result there in revised. All the same the court record was studied and tried to fish out the irregularities in it.

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The accused was charged with Abduction contrary to section 121 of the penal code. The particulars being that Herbert Karambuzi alias Ngabirano on the 28th day of January 1993 at Nyakahita village in Kabale District wilfully took Allan Kyesigire who being an unmarried girl under the age of 18 years out of the custody or protection and against the will of her guardian Mrs. Jacqualine Tugume then having lawful care or charge of her. The prosecution called the evidence of the complainant Jacqualine Tugume $\verb!that!$ which was to the effect/the victim was her house girl and one day when she went away and returned home found her missing. Later she recoived information that the accused had taken the girl away to Kampala. She want there and talked to the accused who admitted having abducted the girl but then contended that the girl had disappeared from him. After that piece of evidence had been led the prosecution purporting to have talked to the complainant and relying on section 156 of the ma

magistrate's court Act 1970 proceeded to discharge the accused person. I am of the view that the complainant having given his testimony.

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count and thus had the prosecution's case closed the course open to the was to find out whether on the evidence available the accused had a case to answer or not by either putting the accused on his defence or acquit him of the charge respectively.

Section 156 of the Magistrate's Court Act 1970 provides that a magistrate court may promote reconciliation and encourage and facilitate the settlement amicable way, of proceedings for assault or for any other offence of a personal private nature not amounting to felony and not aggravated in degree in terms of payment of compensation or other terms approved by such court and may there upon order proceedings to be stayed."

"on perusal of the case papers I find it grossly irregular that the prosecutor should talk to a witness who has already testified and claim the parties have reconciled. He should have closed his case and the court ought to have relied on S 125 of the MCA and not section 156 to decide whether or not the accused should have been acquitted or proceeded to have been put on his defence accordingly.

> In this case the course of action is putting off the case under S 156 MCA was improper order the state does not wish to be heard."

Indeed the legal position in the instant case is very clear as I stated earlier S 156 of the MCA was inapplicable in the circumstances. If the $12$ complainant was not calling any more witnesses the prosecutions was deemed to have been closed. The course therefore open the court was to proceed under S 125 MCA 1970, find out whether the accused had a case to answer or not and proceeding accordingly.

From that explanation above the decision by the trial magistrate in which he purpoted to dispose of the case by discharging the accused on the pretext that there was reconciliation under section 156 MCA 1970 is hereby revised by setting the same aside. And it is therefore hereby ordered that the trial magistrate proceeds under S 125 of MCA 1970 and The D. P. P. did not wish to be heard in thus finally dispose of this case. $\mathcal{L}$ the event of a revisional order.

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I. MUKANZA JUDGE $1.7.1996.$

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