[1991] UGHC 75

, A^Aaccl.

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

. CRIMINAL REVISION ORDER NO.29/90

PROSECUTOR :::::::::: :^r:::: t::: ^t u: st: UGANDA

## VERSUS

KASIMIRO KIDEGA :::::::::::::::::s:::::::::::::::::^t ACCUSED BEFORE: The Hon. Mr, Justice ^G \$ ^M Qkello:

The accused in this case was charged with assault occasioning actual bodily harm contrary to section ²²⁸ of the Penal Code Act\* After trial, he was convicted of common Assault contrary to section 227 of the Penal **C^de** Act because the Trial Magistrate held that there was no medical evidence to-prove ''harm", He was then sentenced to a fine of Shst'500/» or to 4 months imprisonment in default of payment of that fine.

The relevant file was placed before me for a possible revisional Order, When I perused the record of the proceedings I noted that a child of tender age (Aged 14 years) gave evidence on oath but there was n» record showing that the trial Magistrate conducted a voire dire to determine whether the child, understood the nature of an oath **to justify** the reception of her evidence on oath. It is essential that a voire dire must be conducted to determine whether a child of tender age intend\* ing to give evidence understands the nature of an oath before hif/her evidence can properly be received on oath\* ^A proceeding of such a conduct of voire dire must hiso be recorded, Csee . Sakjjift **wYa'** Repubjig-

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^A child of tender age, has not been defined but a child of the apparent age of ¹⁴ years is regarded as a child of tender aget' **See** Kibongeny Arap Kalil —v- Republic (1959) EA 92 at 95 •

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It is my view that the reception of the evidence of this child on oath without a prior conduct of a voire dire to determine whether the child understood the nature of an oath was improper.

The trial Magistrate convicted the accused of a lesser offence of Assault contrary to section 227 of the Penal CodekAct because there was no medical evidence to prove "bodily harm". I am of the view that/the trial Magistrate misdirected himself in law in holding that "bodily harm" can only be proved by medical evidence^. "Harm" is defined under section ⁴ of the Penal Code Act to mean any bodily hurt, disease of disorder whether permanent or temporary. In my view .this is a matter of fact which,can be proved by any cogent evidence. Medical evidence is indeed the...best: evidence in this regard but it is by no mean the only one. I^-for instance a complainant testifies on oath that he was beaten and injured and that evidence is believed,; it is sufficient to establish tbodily harm". In the /^t instant case the complainant (PW1) testified that he was speared by the accused on his right arm and he became unconsious. It is in my view pla^n that the word "speared" bore the meaning that the skin of the complainant on the right arm was pierced with the spear. This is a bodily hurt within the meaning of section .4 of the Penal Code Act.

The record of the proceeding further'revealed that the accused was » sentenced to' a fine of Shs.500/= or to 4 months imprisonment in default of payment of the fine. • • • >

I am of- the view that the default sentence of ⁴ months imprisonment for a^fin^^of ^JBhs.\$fo/= is illegal because it contravenes section 192(d) of the MCA170 as amended by Act of 1985, Under this section the maximum default sentence for a-fine of Shs.500/= is ⁷ days imprisonment.

I note that the same Magistrate persistently continues to make order for sentence which gives to an acailsed person a choice of either serving a term of imprisonment or.to pay an amount'of fine\* Several Revision Orders have been made by this court stating that such \$n order of sentence is not proper as it is not provided for under our law\* ^A proper order is to impose an amount of fine with a term of imprisonment in defautl of payment of that fine. See section 189 (2) MCA170. . -

As the record shows that;', the accused'has already been committed to prison on 16.6.1991\* there is no need to consider a revision order bjrt the Magistrate concerned is advised to take note of the .remark regarding, her order of sentence\* - ¹

The relevant file is to be returned to the relevant court for retention\*

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22.7,91

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