[1990] UGHC 41

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## THE REPUBLIC CF UGANDA

## IN THE HIGH COURT CF UGkNDA \*\T KAMPALA CRIMINAL REVISION TTC. 7/90

UGANDA PROSECUTOR

VERSUS

GEOFFREY KILAMA :::::::::::::::::: RESPONDENT BEFORE: THE HON. MR. JUSTICE G. M. OKELLO

## CRIMINAL REVISION ORDER

This file was placed before me for inspection- I did peruse the record of the proceedinrs in the file and I found that the accused was charged with theft contrary to section *252 of the* Penal Code Act.

The particulars of the offence alleged that Kilama Geoffrey on the 6th day of May 1987 at Cemetary ^oad in Oulu District stole cash of shs. 100,200/= old Currency, the property of Ivan Kamara.

The accused denied the charge and the trial Magistrate rightly recorded a plea of not Guilty. Later however, the record went as follows

''Court:- The accused is explained the definition of theft as is stipulated in section 2^5 of the Penal Code Act AND HIS PLEA IS FOR plea of <ruilt".

^A plea of puilty was recorded and the accused was remanded to next day.

The following day when the accused was produced,- the facts of the case were -narrated, after which the court record arrain went as follows:\*

"Court:- The facts are correct. The accused is convicted of the offence of theft c/s 252 of the Penal Code Act".

The accused was found to have no record of any previous conviction and he was sentenced t^o ^a fine of shs. 1000/= or to 12(twelve) months imprisonment in default of payment of that fine.

The fine was paid after the accused had served four months of the default sentence. At the time of payment, the trial Magistrate reduced the fine from shs. 1000/= to shs. 750/- only.

I was of the view that the purported change of plea of the accused from NOT Guilty to that of Guilty when the words used by the accused were not recorded, was not proper and that the plea was not a plea of Guilty. ' I was also not happy with the default sentence of 12 months imprisonment for ^a fine of shs. 1000/= as it was clearly illegal. For those grounds I resolved to make a Revision order in the case and I accordingly directed the Assistant Keristrar (crime) to forward the relevant case file to the DPP for his views.

The views of the DPP was written for him by Mr. E. B. Mwangusys Principal State attorney in ^a letter dated 5/^/9O. In that letter, the learned Principal State Attorney expressed the view that the purported change of plea was bad and that the conviction based on it was illegal. He was also of the view that the default sentence was illegal and that both should be set aside. He thought that ordering a retrial would not serve any useful purpose since the accused had already served four months of the illegal default sentence.

The learned Principal State Attorney further argued that the trial Magistrate had no .iurisdiction to reduce the sentence four months after he had announced it in open court, as he had already become functus officio. The learned Principal State "ttorney did not wish t^o be heard in the event of a Revision Order being made.

Under section ¹²² (2) of the MCA\*70 if an accused person admits the truth of a charge, his admission shall be recorded as nearly as possible in the words used by him.

../3.

In the instant case, the words used by the ccused when his plea was purported to have been changed were not recorded.' This is a violation of the above section of the MCA'70'\* This provision is mandatory and must be complied with.

In order for a plea of Guilty to be properly entered, the words used by the accused in answer tn the charge must admit all the ingredients of the offence charged.

In the instant case, the words used by the accused in answer to the charge when he was alleged to have altered his plea from not guilty to a plea of Guilty were not recorded. In those circumstances it is impossible to tell whether the accused truly admitted all the ingredients of' the offence charred. The accused explained that the money shs. 1.00,200/= was handed to him by the compainant to exchange with the new currency for the complainant. That he inturn passed the money to his mother for safe custody. That before he exchanged the money with the new currency, it was stolen from the custody of his mother\*

In my view the above explanation did not amount to theft\* If the trial Magistrate took the trouble to properly understand the definition of theft as stipulated in section 2^5 of the- Penal ^ode Act, he would certainly have realised that there was no admission of taking away of that money by the accused without any claim of ri^ht or admission of any fraudulent conversion of the money by the iccused, and that clearly there was no admission of the charge. The plea of guilty was therefore wrongly entered and the resultant conviction illegal.

Secondly, the record shows that the facts of the case were not put to- the accused to admit or deny the truth or correctness thereof before his conviction. It was held in Adan V. The Republic (1973) EA that -aft-..r an accused nersnn deads guilty. the facts constituting the offence

should be narrated to the court which in turn should put the same t⁰ the accused to admit or deny the truth or carrectness thereof before- he is convicted. This rule of practice has now assumed the force of law. It must be complied with.

On these two grounds the conviction of the accused based on the purported plea of ^nty can not stand. It must be and is hereby set aside.

As regards the sentence, the record shows that the trial Magistrate sentenced the accused to a fine of shs. 1000/= or to 12 months imprisonment in default of payment of that fine.

The default sentence is clearly illegal because section 192 of the MCA'70 as amended by Act ⁴ of 1985 puts the maximum period of default sentence for a fine not exceeding shs. 2000/= to 7 days only.

In the instant case the fine of shs. 1000/= is not exceedin'? shs. 00/^ Therefore the maximum default sentence for that amount of fine is ⁷ days imprisonment only. The default sentence of twelve months imprisonment for ^a .fine of shs. 1000/= is hence illegal and can not stand.

It must be and is hereby set aside.

The record further shows that the trial Magistrate after four months from the date he announced the sentence in open court, purported to reduce it from shs. 1000/= to shs. 750/=.

It is settled law that once ^a Magistrate or Judge announces his sentence, he ceases to have ivrisdiction in the matter. He can not increase or reduce the sentence however compelling the reason may be because he will have already become functus officio in the matter.

In the instant case, the Magistrate who four months after pronouncing his sentence .purported t^o reduce, the fine from shs. 1000/= to shs. 750/= acted without Jurisdiction and-that action is clearly illegal.

In the whole, the conviction and sentence in this case are set aside for the reasons riven.

Order: They fine of shs. 750/= paid by the accused must be refunded to him forthwith.

JUDGE. 14/5/90