[1996] UGHC 82

#### THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

### REVISION OR. CASE NO, 14/95

## (ARISING OUT OF KABALE I4KA ¹ 60 OF 1993)

**UGANDAu mmmi mmimm mmi: ^t mmmmmmmmmmmm iPROSECOTOR**

# VERSUS

JOSEPHART KAMANZIl **1t ^M MM M11MMmm mmi : M MMM11:** tACCUSED BEFORE**^I** THE HONOURABLE MR, JUSTICE I, MUKANZA.

#### REVISION OlWER/CCTTFIRI. IATION

The accused Josephart Kamangi was charged of neglicting to provide for a child contrary to section 155 of the Penal Cods. This was before a Magistrate. Grade II at Kabale. The particulars of the charge being that the accused since 1989 at Nyabikoni in Kabale District being aparent r . . . ' . . to ⁷ children of tender years triable to provide for themselves and. being able to do so refused or neglected to provide food, clothes,beddings and other necessaries for the said children, so as thereby to injure the health of the said children.

When the case came for hearing the accused was recorded as being present but the oomplainant/proseoutor was away. The trial magistrate exercising his powers dismissed the case under section ¹¹ 70) of the magistrate's courts Act 1970 and added that the matter was a private prosecution and more of a family natter.

However under section ¹¹ 7(1) of Magistrates Courts Act 1970 where at the hearing date the accused appears in obedience to the summons provided the prosecutor/complainant had notice of the time and place appointed for the hearing of the charge and does not appear the court shall dismiss the charge unless for some reason it shall think it proper to adjourn the hearing the case until some other date, upon such teims A as it shall think fit, in which event it may pending such adjourned hearing, either admit the accused on bail or remand him to prison or take such security for his appearance as the court shall think fit.

According to the record, there is nothing to show that the complainant was aware of the hearing date and did not turn up. Also there is nothing

in the court file to show that the matter being a family affair the complainant the said prosecutor did not like to prosecute the accused person. and the same $\mathcal{L}_{\mathcal{A}}$

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I am of the view that the prosecutor/complainant was deprived of the opportunity to present her case more so where a number of children of tender years were involved as per the affidavit depend to by the complainant in support of the charge preferred against the accused when the Director of Public Prosecutions was contacted about the matter in the event of a possible revisional order. By his letter reference NO. $DPP/02/1$ dated 7.11.95 the DPP had this to say - $\mathcal{L}(\mathbf{x}, \mathbf{x}) = \mathcal{L}(\mathbf{x}, \mathbf{x})$

"In this case the magistrate did not give the complainant a chance to prosecute her case and as the learned judge had pointed out deprived her of the opportunity to present her case that is of vital importance to the upkeep of her children. In the event of a revisional order being made the state does not wish to be heard."

Well exercising the powers conferred upon me under section $167(1)$ of the Magistrate Court Act 1976 and from what has transpired above the order by the Magistrate Grade II Court, dismissing the charge under section 117(1) of the Magistrates Courts Act (MCA) 1970 is revised by having the same set aside. It is hereby ordered that the record be remitted back with instructions that the accused and prosecutor/ complainant be summoned to court and the hearing of this case commences.

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**TO ALL SALES**

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an Let CON WENT with a light

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