[2024] UGHCCRD 44

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**(CRIMINAL DIVISION)**

**CRIMINAL APPEAL NUMBER 071 OF 2023)**

**[Arising from Natete/Rubaga Court Criminal Case Number 297 of 2020]**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**NANDAWULA RUTH :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**JUDGEMENT**

**BY JUSTICE GADENYA PAUL WOLIMBWA**

**Introduction**

This is an appeal against the decision of His Worship Adams Byarugaba, a Principal Magistrate Grade I sitting at Natete/Rubaga, delivered on July 13, 2023. In this appeal, the Director of Public Prosecutions seeks to reverse the court's decision to acquit the accused person.

Nandawula Ruth, hereinafter called the Respondent, was charged with three counts- criminal trespass contrary to section 302(a) of the Penal Code Act; housebreaking contrary to section295(1) and 295(2) of the Penal Code Act; and Malicious Damage to Property contrary to section 335(1) of the Penal Code Act. The prosecution alleged that the respondent and others still at large in 2015 in Kuvumbi Zone, Natete, Rubaga in Kampala district, entered into the land in possession of Mukiibi Ronnie, hereinafter called the complainant, with the intent to intimidate, insult, or annoy him. The prosecution also alleged that the Respondent and others at large unlawfully broke into the dwelling house of the complainant to commit the felony of housebreaking. Lastly, the prosecution alleged that the Respondent unlawfully damaged the doors and locks belonging to the complainant around the same time.

**Summary of the Prosecution’s Evidence**

From the evidence on the record, the Respondent married Ssemwogere Simon Kogero, the complainant's father, in 1993. The Respondent was then a student at Nabbingo Girls Secondary School. In the early stages of their marriage, Ssemwogerere brought the complainant, who was then four years old and a sister to live with them. The Respondent cared for the complainant until senior five when he left home to live elsewhere. The family lived in a three-bedroom house. The couple lived in Japan for some time. The Respondent’s husband still lives in Japan but occasionally travels to Uganda.

The prosecution called evidence that the complainant bought three houses/ premises between 2014 and 2015. He bought the first house in 2014 from Tito Sseviri at UGX 20M on 3rd May 2014. He bought the second house on 15th February 2015 from Ddegeya Charles for UGX 30M. He bought the third house from Willy Mulindwa on 18th April 2015 for UGX 10M. All these houses are within the compound where his father and the Respondent lived as a family. Upon purchasing the properties, he locked them and entrusted the keys to Mr Sewungu, the area LCI Chairperson, for safe custody and left the area. Very little is known about where the complainant went or lived after purchasing the houses.

In 2016, the complainant returned to take possession of the house. Unfortunately, he found that the Respondent had renovated and rented them without his consent. He then consulted his father, who advised him to talk to his stepmother- the respondent, as it would be difficult to evict the tenants. Efforts to get back the houses failed – forcing the complainant to report the matter to the police. The prosecution called five other witnesses to support its case. The witnesses testified that the houses in question belonged to the complainant.

Furthermore, the complainant testified that:

*the accused broke my padlocks. Yes, I had locked them. I didn’t find the padlocks, and I found the tenants in three houses. The houses had been painted, and doors and windows changed from wooden to metallic. I don’t know where they put the old doors and windows. I don’t see the accused removing any of the items. I was told by one of the tenants that the accused removed it. She did not give me her name.*

DC Mivule (PW2) testified that the compound has four houses, one of which the appellant lives in, and tenants occupy the other. The Appellant told him that she had renovated the property because she thought her husband and father had purchased it for the complainant. In cross-examination, he told the court that the houses were not damaged because they were renovated. He also testified that they suspected that it was the accused who broke into the homes. Ddegeya Charles PW4 testified that he sold a house to the appellant on February 13, 2015, in Kivumbi Zone at UGX 30M. He presented a sales agreement, which was admitted in evidence as exhibit PEX No. 1. The house was about 5 meters from Kagoles' house. It was incomplete, not plastered, and had metal doors and windows. It had four rooms.

Mulindwa Steven PW5 testified that he is the LCI Chairperson of the village where the parties reside. He confirmed that Ddegeya sold the complainant a house in 2015. He also testified that Willy Mulindwa sold a house to the complainant in April 2015. He signed the agreement as a witness to the agreement. The agreement was exhibited as PEXNo.1. PW5 further testified that Sseviri Tito, in May 2014, sold his house to the complainant. He was also present and witnessed the sale. A copy of the agreement was admitted as evidence in PEXNo3.

PW5 testified that after purchasing the houses, the complainant locked them and entrusted him with a key to the house Ddegeya had sold him. After some time, he saw some people renovating the house Ddegeya had sold to the complainant. He called the complainant, who told him the respondent was renovating the house. In cross-examination, PW5 insisted that the respondent told him that she was renovating the house.

**Summary of the Defence Testimony**

The Respondent, on the other hand, testified that the houses were bought by her husband using the money he had from Japan, where he works. She told the court that every time the husband would buy a property, she would renovate and refurbish it to make it tenantable. She testified that during the marriage, the relationship between her and her husband deteriorated to the extent that he stopped caring for the family and educating their two children. Out of desperation and in search of money to take care of the family, she took out a loan, renovated the houses that were so dilapidated, and rented them out. It is from these houses that she is getting funds to look after the home and pay fees for the children. She denied trespassing or breaking into the houses. She also denied maliciously damaging the property of the complainant. The Respondent called her son and sister to back up her case.

Najjuko Jane (DW2) testified that she is the appellant's young sister. She said that the houses in question belong to the appellant's husband and confirmed that the appellant renovated them because they were dilapidated. Christopher Ssemwogere, DW3, a son to the appellant and stepbrother to the complainant, testified that his mother renovated the houses that were in a dilapidated state to rent them out so that she could raise money to meet their needs after their father stopped paying fees for them. The houses are in the same compound as their home. The mother got a loan to pay for the renovations, and he maintained that although the houses were in the name of the complainant, they belonged to their father. In cross-examination, he maintained that his mother never destroyed the houses but added value.

**Decision of the Trial Court**

The Trial Magistrate, drawing inspiration from the **National Objectives and Directive Principles of State Policy in the Constitution**, particularly regarding the rights of women and the need for affirmative action in their support, found that the complainant, who was about 22 years old and unemployed at the time of purchasing the houses, was too young to buy the properties in question. The Magistrate suggested that the complainant's father and the Respondent's husband may have bought the houses through the complainant and used him and the Police authorities to evict the Respondent from the properties due to their marital issues. Furthermore, the Trial Magistrate blamed the complainant's father for not informing the family about purchasing the three houses for the complainant. This lack of information made the Respondent assume that the houses were matrimonial property when she renovated and rented them out. Consequently, the Trial Magistrate held that the Respondent was entitled to make a legitimate claim concerning the houses and acquitted her of all the charges.

The Director of Public Prosecutions, aggrieved by the court's judgment, filed a memorandum of appeal with one ground of appeal.

**Ground of Appeal**

The learned trial magistrate erred in law and fact in importing and using conjectures and fanciful theories, not evidence on the record, as his reasons to acquit the respondent.

**Representation**

Ms Apolot Joy Francis represented the Office of the Director of Public Prosecutions, while Mr Herbert Kidiya represented the Respondent.

**Duty of the First Appellate Court**

The first appellate court has a duty to re-evaluate the evidence before the trial court and reach its own conclusions, bearing in mind that it never had the benefit of listening to and watching the demeanour of the witnesses. See: **Pandya vs R [1957] EA 336**

**Submissions of the Parties**

**The Appellant’s submissions.**

The Appellant faulted the Trial Magistrate for ignoring the evidence on the record and instead importing his facts to acquit the Respondent.

She submitted that whereas the trial magistrate held that the complainant’s father was using the complainant and the police to evict the Respondent from the houses, none of the prosecution witnesses or the defence testified that the complainant’s father purchased the house in question or that the complainant was not working at the time of acquiring the houses. She also submitted that none of the witnesses testified that the complainant was a planned kid and that he was acting in connivance with his father to evict the Respondent from the premises. She also faulted the Trial Magistrate for holding that the Respondent was using the rent from the houses to pay fees for her children when none of the witnesses gave evidence to this effect.

Additionally, the Appellant faulted the Trial Magistrate for holding that the complainant's father and the Respondent's husband purchased the property without proof. She submitted that because of this erroneous holding, the Trial Magistrate wrongly found that the Respondent had a bonafide claim of right to the property, which he, unfortunately, used to acquit her of all the counts. She submitted that had the Trial Magistrate thoroughly considered the evidence on the record, he would not have acquitted the Respondent of the charges as there was overwhelming evidence to show that she committed the offences and did not have a defence to absolve her. In conclusion, counsel for the Appellant urged the court to disregard the decision of the Trial Magistrate and convict the respondent of the three counts.

**Submissions of the Respondent**

The Respondent submitted as follows:

Counsel for the Respondent supported the Trial Court's decision in the following aspects. He submitted that section 11 of the Magistrates Courts Act enjoins the courts to apply the law and equity in adjudicating cases and that where there is a conflict between equity and the law, the rules of equity shall prevail. He submitted that given that the case between the parties involved a conflict between a stepmother and son, it was important for the court to apply principles of equity in resolving the matter. He submitted that the respondent testified that she would renovate the rentals whenever the husband bought rentals. When the husband returned from Japan in 2019, he asked her to chase the tenants out of the houses, and when she refused, she was charged with criminal trespass.

He submitted that the Respondent never trespassed on the properties because she honestly believed that the houses belonged to her husband and repaired them, fully believing that she was dealing with family property. He submitted that it was for this reason that the Respondent sought permission from the area LCI Chairman to repair one of the houses that had become a source of insecurity. Given that the Respondent had a bonafide claim of right, she never entered the premises to intimidate, annoy, or insult the complainant.

He referred me to the case of **Korokoni and three others vs Uganda Criminal Appeal number 013 of 2015**, where Justice Jesse Byaruhanga held that mere entry on the land does not amount to criminal trespass unless it is established that the accused person entered therein with the intention of intimidating, insulting, or annoying the complainant. In this case, the Respondent never intended to intimidate, insult, or annoy the complainant. He submitted that in the circumstances, the Trial Magistrate was correct in acquitting the Respondent of the offence of criminal trespass because the Respondent did not enter the property with the intention of either annoying, intimidating or insulting the complainant.

Regarding the complainant's inability to purchase the houses in question, counsel submitted that the Trial Magistrate was correct when he held that the complainant was too young and unemployed to buy them. He observed that there was a strong possibility that the respondent’s husband had sent the money from Japan, out of which the houses had been purchased. He submitted that if the houses were for the complainant, he would have protested when the Respondent renovated them in 2018. In conclusion, counsel for the Respondent asked me to dismiss the appeal and confirm the acquittal of the Respondent.

**Consideration of the Appeal**

The Appellant's main contention is that the Trial Magistrate used extraneous matters to hold that the respondent had a bonafide claim of right to the property and could not be criminally liable for criminal trespass, housebreaking and malicious damage to property. Counsel for the Appellant equally criticised the Trial Magistrate for holding that the complainant was too young and unemployed to purchase houses for several tens of millions. She asserted that the magistrate invented these facts as no witness testified. The court would have convicted the respondent if the Trial Magistrate had not imported evidence on record. I will consider the complaints of the Appellant in evaluating the evidence presented concerning the offences, beginning with the offence of malicious damage to property.

The offence of Malicious Damage to property contrary to section 335(1) of the Penal Code Act is committed when the prosecution proves the following ingredients beyond reasonable doubt:

1. There must be a property that belongs to the complainant. 2. The property must have been damaged. The damage may be a permanent or temporary reduction of some tangible property's functionality, utility, or value. 3. The property must have been damaged through wilful and unlawful actions. The damage must have been intentional. 4. The accused person is responsible for damaging the property.

See **Muwanga Angella and Nsubuga Gerald vs Uganda HCCA 12 of 2019**, where Justice Joseph Murangira reiterated the above ingredients of the offence of malicious damage to property. I will consider each of the ingredients.

The complainant testified that he owns three houses, and the respondent alleged they were damaged by removing locks, replacing doors and windows, renovating, and painting. The complainant presented sales agreements marked as PE1-3 to confirm that he owns the houses. PW2- PW6 also confirmed that the houses belong to the complainant. Although the respondent asserted that the houses belonged to her husband, she did not offer any evidence to support her claims. I was therefore satisfied that the three houses, for this trial, belong to the complainant and constitute property within the meaning of section 315 of the Penal Code Act.

Damage to property can be either permanent or temporary and can include a reduction in the property's value, utility, or functionality. The prosecution's case was that the respondent damaged the complainant's property by, among other things, removing padlocks from the house that previously belonged to Ddegeya. She was also accused of removing and replacing doors and windows, renovating and painting the house, and renting out the houses. The defence denied damaging the property in question.

On the contrary, the respondent asserted that she renovated and enhanced the property's value, some of which were dilapidated and comparable to animal dens. The defence exhibited photographs of the houses before and after the renovations and improvements. The pictures showed that the properties in question are much better and of enhanced value than before the respondent renovated them. Damage to property occurs when the accused person's actions reduce the property's value, utility, or functionality. On the other hand, improvements to the property do not constitute damage to the property despite the property changing in form. Therefore, as the prosecution asserted, it is not true that the respondent damaged the property.

To prove a charge of malicious property damage, the prosecution needs to show that the property was intentionally damaged and that the accused person's actions were unlawful or that the damage was caused without lawful excuse. The prosecution argued that the respondent unlawfully and intentionally damaged three houses by renovating them without the owner's consent. However, the defence claimed that the respondent did not willfully damage the property.

After reviewing the evidence, I found that the respondent did not damage the property. Instead, she improved the houses through renovation and is currently renting them out to support herself and her children. While it was unlawful for her to enter the property without consent, her actions did not amount to willful property damage, as no actual damage was done to the houses.

The prosecution’s case is that the Respondent damaged the property. However, as I have established, the respondent never damaged the property. In conclusion, the trial Magistrate never erred in law when he acquitted the respondent of the charge of malicious damage to property contrary to section 315 (1) of the Penal Code Act.

**The Offense of housebreaking**

Housebreaking is an offence contrary to section 295(1)(a) of the Penal Code Act.

The offence of housebreaking is committed when the prosecution proves the following ingredients beyond a reasonable doubt. The ingredients are:

1. Breaking into any part of the building or tent or vessel used as a human dwelling 2. The breaking may be may be actual or constructive. 3. The breaking must happen during the day between 6.30 am and 6.30 pm. 4. The accused person must have entered the building. 5. The accused person must have committed a felony in the building.

The prosecution's case was that the respondent unlawfully entered the complainant's house to commit the offence of housebreaking. The complainant testified that the respondent had broken into his three houses by removing locks, windows, and doors. He also testified that the respondent had put tenants in the houses. The respondent did not deny entering the houses. She testified that although the houses were in the complainant's name, she believed they belonged to her husband, the complainant's father. She told the court that she found him living in a small three-bedroom house when she married the complainant's father. With time, her husband bought additional houses, which she renovated and rented out. So, there is no doubt that the respondent entered the premises to renovate and rent them out.

The prosecution claimed that the respondent unlawfully entered the complainant's house to commit housebreaking. The complainant testified that the respondent broke into his three houses by removing locks, windows, and doors and also put tenants in the houses. The respondent did not deny entering the houses but believed they belonged to her husband. She stated that she renovated and rented the houses her husband had initially acquired.

Section 1 of the Penal Code Act defines a felony as:

*An offence declared by the law to be a felony or, if not declared to be a misdemeanour, is punishable by proof of previous conviction, with death or imprisonment for three years or more.*

Section 295 of the Penal Code Act classifies the offence of housebreaking as a felony.

The prosecution claimed that the respondent entered the complainant's property to commit the crime of housebreaking in violation of sections 295(1) and 295(2) of the Penal Code Act. On the other hand, the respondent testified that she entered the houses to repair and renovate them. She believed the properties belonged to her husband, and some were so run-down that they posed a potential danger to the public. She also testified that she had sought permission from the LCI Chairperson to renovate one of the dilapidated houses. The defence presented a picture of one of the houses starting to collapse.

To succeed in a charge of housebreaking, the prosecution must prove that the accused intentionally committed the offence to cause a specific effect or achieve a particular result. In this case, they had to prove that the respondent deliberately entered the premises with the sole intention of committing housebreaking. However, the evidence showed that the respondent entered the premises to renovate and refurbish them, which is not a crime.

The prosecution's testimony aligned more closely with the defence's testimony, which stated that the respondent entered the premises to renovate and rent them to support herself and her children, as her husband had stopped providing financial support. The burden of proof was on the prosecution to show that the respondent entered the premises intending to commit a felony, but they failed to provide convincing evidence to meet this burden. There was no evidence to suggest that the respondent intended to commit the offence of housebreaking. Therefore, I am not convinced that the respondent entered the premises with the intent to commit the offence of housebreaking as outlined in sections 295(1) and 295(2) of the Penal Code Act. As a result, the Trial Magistrate was correct in acquitting the Respondent of the charge of housebreaking.

**The offence of criminal trespass contrary to section 302(a) of the Penal Code Act**

Criminal trespass is committed when a person enters into or upon property in possession of another with intent to commit an offence or intimidate, insult, or annoy anyone. The offence of criminal trespass protects the right of lawful possession as opposed to the title. In **Uganda vs Kinyera and three others [2018] UGHCCRD 297**, Justice Mubiru held that the offence of criminal trespass is committed when the following ingredients are established:

1. Intentional entry into the property in possession of another. 2. The entry was without authorisation. 3. The entry was for an unlawful purpose [– the intention must be to commit an offence or intimidate or annoy someone. [ the intention to commit an offence or to intimidate or annoy someone is deductible from the circumstances of the case] 4. The accused entered the land.

Justice Mubiru said that:

*To be possession at the time of entry, it does not imply that the person in possession must be present at the actual time of entry…it is worth noting that the party lawfully entitled to possession has a right to private defence of the property, embedded in defence of bonafide claim of right under section 7 of the Penal Code Act…. Possession within this section refers to effective physical or manual control or occupation, evidenced by some outward act, something called defacto possession or detention, as distinct from a legal right to possession.*

The prosecution argued that the respondent entered the complainant's premises with the intention of intimidating, insulting or annoying him. The prosecution also accused the respondent of breaking into the complainant’s houses without any colour of right. The prosecution further asserted that the premises in question are not properties of Ssemwogere, the husband to the respondent and father to the complainant.

The defence argued that the respondent renovated and rented the premises, believing in good faith that they belonged to her husband, the complainant's father. Alternatively, the defence claimed that even though the premises are registered in the complainant's name, the complainant is acting on behalf of Ssemwogere or holding the property in trust for the father, who could not purchase them due to being young and unemployed. The defence claimed that the complainant did not object or raise any concerns when the respondent was repairing the houses because he knew they belonged to Ssemwogerere. Lastly, the defence asserted that Ssemwogerere is using the complainant and the legal system to evict the respondent, who he is having marital issues with.

The properties in question undeniably belong to the complainant, despite the defence's argument that the complainant was too young to purchase them. The defence, which had the responsibility of proving that the complainant could not buy the buildings, failed to provide any evidence to support their claim. Regrettably, the Trial Magistrate based his decision on irrelevant evidence to challenge the complainant's ownership of the houses. Conversely, the prosecution presented evidence that the complainant bought these properties when he was approximately twenty-two years old. Since there was no evidence to refute the prosecution's claim, it is considered that the complainant is indeed the owner of the houses. According to Section 91 of the Evidence Act, oral evidence cannot disprove a written agreement. For your reference, the section states:

*When the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a*[*document*](https://ulii.org/akn/ug/act/ord/1909/11/eng%402000-12-31#defn-term-document)*, and in all cases in which any matter is required by law to be reduced to the form of a*[*document*](https://ulii.org/akn/ug/act/ord/1909/11/eng%402000-12-31#defn-term-document)*, no*[*evidence*](https://ulii.org/akn/ug/act/ord/1909/11/eng%402000-12-31#defn-term-evidence)*, except as mentioned in*[*section 79*](#part_III__sec_79)*, shall be given in proof of the terms of that contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.*

Therefore, having failed to discharge the evidential burden, the defence is precluded from asserting that the properties in question do not belong to the complainant.

This now leads me to whether the Respondent can claim a bonafide claim of right that the premises belong to her husband. Section 7 of the Penal Code Act provides the defence to a bonafide claim of right. The section provides that:

*A*[*person*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-person)*is not criminally responsible in respect of an*[*offence*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-offence)*relating to*[*property*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-property)*if the act done or omitted to be done by the*[*person*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-person)*with respect to the*[*property*](https://ulii.org/akn/ug/act/ord/1950/12/eng%402014-05-09#defn-term-property)*was done in the exercise of an honest claim of right and without intention to defraud.*

In **Olanya Mario and Oloya Samuel vs. Uganda HC Cr. Appeal Number 0020 of 2017 (High Court- Gulu)**, Justice Mubiru observed that:

1. *According to section 7 of The Penal Code Act, a person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud. The existence of an honest claim of right ordinarily excludes the criminal intention. A person has a claim of right if he or she is honestly asserting what he or she believes to be a lawful claim, even though it may be unfounded in law or in fact, (see R v. Bernhard (1938) 26 Cr App R 137; [1938] 2 All ER 140; [1938] 2 KB 264] at page 145).*

*11*

1. *[31] Anything “bona fide” connotes “good faith”. Thus, for a claim of right to qualify a bona fide claim of right, it must be made in good faith, without fraud or deceit. It must be sincere and genuine (see Black’s Law Dictionary 8th ed). In Lubega Bernado v. Uganda [1985] HCB 9, on a charge of attempted theft, the appellant raised the defence of bonafide claim of right. The court held that a person who takes property which he believes to be his own does not take it fraudulently however unfounded his claim. Similarly, in Oyat v. Uganda [1967] EA 827 that, in a criminal proceeding, the defence of claim of right is available to an accused person, however ill founded, where the accused firmly believed that he had a claim of right over the property. A similar holding can be found in Nkwine Jackson v. Uganda, H. C. Criminal Appeal No. 59 of 1992, [1995] III KALR 113. The belief, therefore, need not be reasonable, provided it must be sincere and genuine.*

The respondent claims that she believes the houses belong to her husband, who saved proceeds in Japan while they stayed together for some years. She also informed the court that in the past, her husband would purchase the properties, and she would then renovate them. To support her belief, the respondent testified that in 2019, when her husband returned, he asked her to evict the tenants from the houses and brought buyers to look at the property because he wanted to sell them. When she refused, he reported the matter to the authorities and initiated criminal proceedings against her using the complainant. The respondent also testified that if the houses were for the complainant, why didn’t he protest when she renovated and rented them out?

On the other hand, the prosecution argued that the houses belonged to the complainant and that the trial magistrate invented the defence of a bona fide claim of right by bringing in extraneous facts. With due respect to the prosecution, this is not correct. It may well be that the trial magistrate questioned the complainant's capacity to buy the properties. Nonetheless, the respondent testified that she believed that the houses belonged to her husband, bought from savings made in Japan and that he intended to sell them in 2019. Therefore, the trial magistrate correctly stated that the respondent raised a bona fide claim of right to the property.

It is important to understand that a legitimate claim of right is based on an honest belief that a property or thing belongs to the claimant. The claim must be made in good faith, with no intention of defrauding anyone. According to the case of Oyat, it doesn't matter if the belief turns out to be incorrect as long as it was made in good faith. A legitimate claim of right assumes that there is no fraudulent intent on the part of the claimant.

In the case of **Nsibika Peter Wejuli vs. Uganda UGHC148(10 August 2010)**, Justice Stephen Musota, as he then was, emphasised that for a bonafide claim of right to be accepted, the court must be convinced that there was a genuine possibility (not just a fanciful one) that the appellant could claim the trees he cut as his own, even if he was mistaken. The key takeaway from this ruling is that a claim of a bona fide claim right must be well-founded and reasonable to avoid opening the door to all sorts of unfounded claims.

In this case, the respondent is the wife of the complainant's father, despite their marital troubles. The husband left her to care for the home, the children, and the properties in question. These properties are located in the same compound where the family resides. The respondent has always taken care of these properties, believing they belonged to her husband, the complainant's father. The complainant never objected when she renovated the properties, even when he was present. As the respondent testified, problems only arose after she refused to evict the tenants when her husband wanted to sell the properties. The cases were reported against the respondent only after she objected to the sale of the properties and after her marriage deteriorated. Given these circumstances, the respondent honestly believed that the properties belonged to her husband, and she felt it was her duty as a reasonable wife to care for and renovate them. The respondent's belief was based on her husband's consistent claim of ownership of the properties and the houses in the same compound, which were very close to where the family lived. Therefore, it is evident that the respondent had a valid claim of right to the properties.

Given that a legitimate defence of a bonafide claim of right has been established, there is no need to delve into the elements of criminal trespass, as the respondent did not have any unlawful intent to annoy, intimidate, or insult the complainant while dealing with the properties. She genuinely believed that the properties belonged to her husband and father, the complainant, albeit mistakenly. In conclusion, the trial magistrate was right to acquit the respondent of the offence of criminal trespass contrary to section 302(a) of the Penal Code Act.

**Decision**

In conclusion, the Appeal is dismissed for lack of merit.


Gadenya Paul Wolimbwa

**JUDGE**

12th June 2024

I request the Assistant Registrar to deliver for me this judgment on 14th June 2024.


Gadenya Paul Wolimbwa

**JUDGE**

12th June 2024