[2025] UGHC 46

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

## CRIMINAL CONFIRMATION CASE NO.002 OF 2024

(Arising from Criminal Case no. 0767 of 2022 OF the Chief Magistrates Court of Kiboga at Kiboga Court)

UGANDA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

SSENOGA GEORG E :::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE KAREMANI JAMSON. K

#### **RULING**

## **Introduction**

The accused person was charged with the offence of Stealing a Vehicle contrary to Sections 261 and 265 of Penal Code Act before the Chief Magistrate of Kiboga Court.

He pleaded not guilty, defended himself and was later convicted. He was sentenced to compensate the complainant with shs. $4.000.000$ and before being released he was to pay shs.1.000.000= and thereafter pay shs.3.000.000= in six months' instalments. In default he was to serve four years' imprisonment.

### **Background**

It was alleged that on the 26^th day of November 2022 at Kyayimba Village, in Kiboga District, the accused person stole a motor cycle Bajaj Boxer Reg. UFG 098 Q valued at shs.4.000.000= the property of Ssekiwala Jimmy.

He was tried, convicted and sentenced as elaborated above.

The Chief Magistrate Kiboga forwarded the file for revision of sentence by this court. She did not substantiate as to what was wrong with the sentence.

Wam

$\mathbf{1}$

However, since the file is now before me I will go ahead to study the same and find out if there is any irregularity to warrant revision of the sentence passed.

## The Issue for determination

Whether the sentence imposed is illegal or irregular

Whether the sentence passed is illegal or irregular.

According to **Section 17 (1) of the Judicature Act**, the High Court exercises general powers of supervision over magistrates courts. As such the High Court may call for and examine the record of any criminal proceedings before any magistrate's court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the magistrate's court. Also see **Section** 48 of Criminal Procedure Code Act and Section 220 of the Magistrates Court Act.

In the instant case it is the proceedings, orders and a sentence passed by Chief Magistrate herself.

The purpose of the above provisions for revision is to enable High Court correct the irregularities or illegalities by the lower courts that may occasion a miscarriage of justice.

It is therefore my considered position that even where a Chief Magistrate who holds supervisory powers over the lower courts is of the view that his or her own proceedings or order or sentence is improper, irregular or illegal, she can forward the same for revision by the High court. This was the case in this matter.

I will now proceed to examine the proceedings in this matter to satisfy myself if they are correct and legal.

I have examined the proceedings and I find no illegality or irregularity in them.

However, the sentencing process was improperly done.

The sentence reads as follows;

Tillam -

"to compensate the complainant with shs.4.000.000= Before being released he was to pay shs.1.000.000= and thereafter pay shs.3.000.000= in six months' instalment and that in default he was to serve four years' imprisonment."

From the reading of the above sentence it is not clear as to what the learned Chief magistrate meant by the above sentence. The sentence of a fine appear to be mixed up with the order for payment of fine. It is further mixed up with the order to pay the compensation in instalments. The default sentence was excessive.

I would like to observe that after courts have passed sentences and orders, other authorities like police, prisons and bailiffs enforce those orders.

Once these sentences or orders are not clear they may not serve the purpose they are meant for. The orders and sentences of court are supposed to be as clear as possible since the ones who pass them will not be there to explain them to the enforcers.

I therefore find that the sentence and the order for compensation in the instant case is improper and irregular. It hence calls for the intervention of this court by way of revision.

# **Default sentence**

A default sentence is an imprisonment sentence that comes into effect after the convict has been unable to pay the court fine by the due date.

In the instant case the convict was sentenced to compensation of shs. $4.000.000$ = or serve four years' imprisonment in default.

I have also looked at the above default sentence of four years and I find that it is illegal.

According to Section 179 (a) of Magistrates Court Act, where no sum is expressed to which a fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive.

The above connotes that where the Act does not provide for a minimum and maximum amounts for the fine sentence, court has the discretion to impose any amount of fine as long as it is not excessive.

7 Mam

However, under Section 179 (d) of Magistrates Court Act where the period ordered by court in respect of the non-payment of any sum of money adjudged to be paid by a conviction or in respect of the default of a sufficient distress to satisfy any such sum shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any case the maximum fixed by the following scale.

According to the scale laid down in Section 179(d) cited above, where the court passes a sentence of a fine that exceeds six currency points which according to the **Schedule 1 of the Magistrates Court Act** is equivalent to shillings one hundred and twenty thousand (shs. $120,000=$ ), the maximum default imprisonment sentence is only one year.

It therefore follows that under the above cited provisions of the law, while sentencing an accused if the law does not expressly provide for the minimum and maximum fine amounts and at the same time it does not provide the minimum and maximum default imprisonment periods, the court has the discretion to impose any amount of fine but the default sentence period cannot exceed one year.

My own comprehension of the intention of the legislature behind this provision is that once the court has developed the idea to impose a fine sentence it has already deemed fit not to imprison the accused. Therefore, the default imprisonment sentence which has not been the initial intention should not be excessive. The law therefore sets a maximum of one-year imprisonment as the default sentence to payment of any amount of fine.

In the instant case the default sentence of four years is therefore illegal and it is accordingly revised.

#### The fine being used to cover compensation.

In as far as the order for compensation payment by the convict to the complainant is concerned, it is legal since it is provided under the law.

**Section 196 of the Magistrates Court Act** provides for compensation in criminal matters in addition to other penalties.

mam.

Under Section 198 (1) (b) the Magistrates Court Act the fine imposed in matter may be applied in payment of any person of compensation for any loss or injury caused by the offence when substantial compensation in the opinion of the court is recoverable by civil suit.

Therefore, the application of the fine to compensate the complainant in this matter was properly done under the law.

However, the compensation order was mixed with the order for a fine. A Compensation order is supposed to be separated from the fine even if the fine is to be paid in lieu compensation. The same order of compensation is revised accordingly.

All in all, the sentencing proceedings of the trial Chief magistrate are set aside and the accused is sentenced as follows:

- 1. The convict is sentenced to a fine of $shs.4.000.000=$ and in default to serve a term of imprisonment for one year. - 2. The fine if paid shall be paid as compensation to the complainant for the motorcycle lost. - 3. The convict is allowed to pay the fine in instalments of shs.1000.000= before release $\frac{1}{2}$ and shs.3.000.000= within six months from the date of release.

I so order. $rMam$

KAREMANI JAMSON. K

**JUDGE**

11.02.2025