[2023] UGHCCRD 151

## 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

#### **(CRIMINAL DIVISION)**

## **CRIMINAL REVISION NO. 31 OF 2022**

### **ARISING FROM BUGANDA ROAD CRIMINAL CASE NO. 261 OF 2022**

**UWEERA AGNES ……………………………………………………….……… APPLICANT**

#### **Vs.**

## **UGANDA ……………………………………………...……………………… RESPONDENT**

### **RULING**

#### **BEFORE HON. JUSTICE GADENYA PAUL WOLIMBWA**

#### **1.0. Introduction**

proceedings.

This revision application is brought under sections 48 & 50 (1) (b) & (5) of the Criminal Procedure 20 Code Act and section 33 of the Judicature Act, seeking to set aside the lower court orders delivered on 12th July 2022 in which, the trial magistrate declined to stay criminal proceedings in Criminal Case No. 261 of 2022 pending determination of Civil Suit No. 489 of 2021 by the Commercial Division of the High Court. The Applicant argued that she stands to be prejudiced if the criminal trial is not stayed until the civil trial. On the other hand, the Respondent opposed the application 25 to stay the criminal trial because the two cases differ regarding the parties and remedies they seek. Generally, courts will not stay proceedings in a criminal case unless the applicant can simultaneously demonstrate a real risk of injustice or prejudice from the continuation of both

## **2.0. Background to the Application**

30 The applicant was charged with Receiving Stolen Property contrary to section 314(1) of the Penal

Code Act. The prosecution alleged that the applicant herein (Uweera Agnes), between 30th January 2018 and 7th January 2018, in Kampala District, retained **UGX. 249,082,200/= (Uganda Shillings Two Hundred Forty-Nine Million, Eighty-Two Thousand, Two Hundred)** being the property of Pegasus Technologies Limited on Account No. 903001433133 held in Stanbic Bank-Uganda, 35 knowing or having reason to believe the same to have been feloniously obtained.

At the hearing, the applicant, through her advocate, made an oral application to the trial court for the stay of criminal proceedings in Criminal Case No. 261 of 2022 at Buganda Road, pending the determination of Civil Suit No. 489 of 2020, at the High Court, Commercial Division. According

40 to the applicant, it would be proper to stay the criminal matter since it has a direct inference on the civil case. However, the court declined to stay the criminal proceedings in favour of the civil suit and dismissed the application. The applicant, dissatisfied with the outcome of the ruling, filed this application for revision.

### **3.0. Representation**

45 The firm of M/s Praxlex Advocates represented the applicant. Ms. Apollot Joy, a State Attorney in the Office of the Director of Public Prosecutions, represented the Respondent.

## **4.0. Arguments of the Parties**

Both parties filed written submissions.

#### 50

## **5.0. Issues for Determination**

1. Should the trial magistrates' orders delivered on 12th July 2022 vide an oral application made in Criminal Case No. 261 of 2022 be revised and set aside?

## **6.0. Determination of Issues**

**6.0.1. The Law**

## **a) The Law on Revision**

Revision is a tool that entails a re-examination or careful review, for correction or improvement,

60 of a decision of a Magistrate's court by the High Court to satisfy itself as to the correctness, legality

or propriety of any finding, order or any other decision, and the regularity of any proceedings of a Magistrate's court.

The law on revision, particularly Section 48 of the Criminal Procedure Code Act, provides that; *"The High Court may call for and examine the record of any criminal proceedings before any*

65 *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.''*

Furthermore, Section 50 of the same Act provides for powers of the High Court on Revision. It provides that:

70 *"1. In the case of any proceedings in a magistrate's court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court may.*

*a) in case of a conviction, exercise any powers conferred on it as a court of appeal* 75 *by sections 34 and 41 and may enhance the sentence*

> *(b) in the case of any other order other than an order of acquittal, alter or reverse the order.''*

In accordance with the cited law, it is evident that this court is vested with the power and duty to consider an application for revision to ensure justice has been administered properly and errors 80 that could have led to improper justice are corrected.

## **b). The Law on Stay of Criminal Proceedings Pending Conclusion of Civil Proceedings**

The laws of general application to civil and criminal matters (for example, the Judicature Act) 85 have no provision for staying criminal proceedings in preference of a civil case. The same goes for the laws governing criminal and civil matters in Uganda. Be that as it may, section 209 of the Magistrates Court Act, however, provides that "*No magistrate's court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under*

90 *whom they or any of them claim, litigating under the same title, where that suit or proceeding is*

*pending in the same or any other court having original or appellate jurisdiction in Uganda to grant the relief claimed."*

I will refer to local and international cases that have considered whether of staying either criminal 95 in favour of civil proceedings to clarify principles that a court should follow when faced with the challenge of whether to stay one type of proceeding in favour of the other.

In **Uganda v Ssonko Edward, Criminal Revision Application No. 12 of 2019**, it was observed that section 209 of the Magistrates Court Act simply means that for a case to be stayed, the court must be satisfied that all the following three elements exist.

- 100 1. Presence of two concurrent suits or proceedings, one of which is previous or filed earlier than the other before any court vested with jurisdiction; - 2. The suit or proceedings should be between the same parties under whom they claim or litigate, and, - 3. The subject matter of the suit or proceedings is directly or substantially the same. - 105

In a criminal trespass suit, for example, a stay of Criminal Proceedings may be necessary if ownership rights are contested in the Civil Suit. In **Sebulime Baker Vs Uganda Criminal Appeal No. 21 OF 2018,** Justice Flavia Senoga Anglin held that; *"There is no universal principle that*

*proceedings in a criminal case must necessarily be stayed when a similar or identical matter is*

- 110 *pending before a civil court. However, in the present case, the criminal proceedings arise out of complaints for offences allegedly committed during the pendency of the civil suit, involving the same facts and allegations. The issue of ownership of the disputed land is pending decision before the Land Division and the Court of Appeal. The dispute involved in the criminal proceedings is purely of a civil nature, and if allowed to continue while the civil matters are pending, it will create* 115 *complications instead of facilitating the matter."* - She continued:

*"Any decision given by the trial Magistrate Court on the issue of criminal trespass over land where the appellant is the one in occupation and there is an injunction to maintain the status quo, issued*

120 *by the High Court, would have a direct bearing on the result of the criminal trial. And if the same issue is pending before different courts, there is an inherent danger of conflicting judgments. To*

*avoid such a situation, it is better to stay proceedings of the lower court until the decision of the Land Division and the Court of Appeal are given."*

125 The gist of the above case is that allowing criminal proceedings to continue when there is a pending Civil Suit in Court to determine ownership rights could easily amount to an abuse of the court process and birth forth conflicting judgments. This reasoning is based on the logic that allowing the Civil Court to give her decision on the ownership rights to the suit land will save time, avoid a multiplicity of suits, and prevent the emergence of two potentially conflicting decisions. Under 130 such circumstances, the court is justified in staying Criminal Proceedings in favour of Civil Proceedings even if the criteria for stay as provided in section 209 of the Magistrates Court Act is

not fully met. In **Debenho Pte Ltd and Another vs Envy Global Pte Ltd and another [2022], SGH7** ( This is

- a Singapore case with a persuasive force in Uganda), the defendant was accused of perpetrating 135 an audacious high profile, US\$ 1.1 billion nickel trading scam. He was charged with several counts of cheating under section 420 of the Penal Code(1871 ( the Criminal Proceedings). Two investors in the nickel trading scheme commenced a parallel civil suit against the defendant for fraudulent misrepresentation, claiming various remedies about nickel trading contracts worth more than S\$20 million. - 140 The defendant sought to stay the civil proceedings pending the final determination of the Criminal proceedings. If the Civil Proceedings were not stayed, the defendant argued, he would suffer a real danger of prejudice in the criminal proceedings in at least two ways-

First, the defendant would be required in the civil proceedings to give evidence on matters which were material to his defence in the criminal proceedings but for which he would otherwise have

145 been able to avail himself of his right of silence and the privilege against self-incrimination as an accused person.

Second, the defendant would effectively be compelled to reveal, via the Civil Proceedings, his defence to the criminal charges made against him in the criminal proceedings, and that would give the prosecution a significant advantage that they would not otherwise have.

- 150 Ang. J held that whether to stay civil proceedings pending the determination of parallel criminal proceedings is a matter of judicial discretion, which will be exercised after weighing various competing considerations. The burden is on the defendant to show that there is a real danger that the continuance of the civil action against him will result in injustice in the criminal proceedings. This must be balanced against the plaintiff's prima facie entitlement to hear his civil claim in the - 155 ordinary course.

In determining whether the defendant would suffer a real danger of injustice or prejudice as a result of the concurrent civil and criminal proceedings, the court referred to the factors set out in an English case of **Jefferson Ltd vs Bhetcha (1979)WLR898**, which held that the following factors ought to be taken into account in determining whether concurrent trials will prejudice the 160 defendant:

- a) the possibility that the civil action might obtain such possibility as to influence jurors and deprive the defendant of a fair trial; - b) the proximity in time of the trial of the criminal proceedings to the trial of the civil action. - c) where the disclosure of the defence in a civil action by an accused enables the fabrication - 165 of evidence by the prosecution witnesses or interference with the defence witnesses, resulting in a miscarriage of justice in the criminal proceedings; - d) the burden on the defendant of preparing for both sets of proceedings concurrently; - e) whether the defendant has already disclosed his defence to the allegations and - f) the conduct of the defendant, such as his own prior invocation of the civil action when it 170 had suited him.

Although this case may have involved a stay of civil proceedings in favour of criminal proceedings, it applies to a stay of criminal proceedings with equal force.

From the above statutory and legal precedents, the court will exercise its discretion to stay criminal proceedings in favour of civil proceedings if the following conditions are met-

- 175 a) Exceptional circumstances must exist to stay proceedings; - b) Presence of two concurrent suits or proceedings, one of which is previous or filed earlier than the other before any court vested with jurisdiction; - c) The suit or proceedings are between the same parties; - d) The subject matter of the suit or proceedings is directly or substantially the same; and

180 e) That there is a real danger of the Applicant being prejudiced if concurrent proceedings are allowed to continue. However, whether to order or deny a stay must be balanced against the DPP's prima facie entitlement to hearing its Criminal case in the ordinary case.

However, it should be emphasised that the applicant bears the burden of showing a real and not merely notional risk of injustice or prejudice from the continuation of both proceedings 185 concurrently before the stay can be ordered.

### **6.0.2. The Application**

**Issue:** Should the Trial Magistrates Orders Deliver on 12th July 2022 vide an Oral Application 190 made in Criminal Case No. 261 of 2022 be revised and set aside?

In determining this issue, the court shall deal with each element captured in section 209 of the Magistrates Court Act, i.e. 1). Presence of two concurrent suits or proceedings, one of which is previous or filed earlier than the other before any court vested with jurisdiction; 2). The suit or 195 proceedings should be between the same parties under whom they claim or litigate; 3). The subject matter of the suit or proceedings is directly or substantially the same.4) There is a real danger of the Applicant being prejudiced if concurrent proceedings are allowed to continue. If all these four elements exist, then by all means, the trial magistrate erred, and their decision shall be set aside.

# 200 **Element 1: Presence of Two Concurrent Suits or Proceedings, One of which is Previous or filed earlier than the other, before any Court vested with Jurisdiction**

In his submissions, counsel for the applicant does not dispute the presence of two concurrent suits. He instead argues that the criminal case should stay pending the hearing and determination of the 205 civil suit because it has a direct inference on the civil matter. The respondents do not dispute the presence of two concurrent suits in different courts with jurisdiction to hear them. They instead argue that the criminal case should not stay pending the determination of the civil suit because criminal cases are public, and administrative policy gives priority to the public interest when it comes to law enforcement.

The record shows that on 9th February 2022, Criminal Case No. 261 of 2022 was instituted at Buganda Road Chief Magistrates Court. In contrast, Civil Suit No. 489 of 2020 was instituted on 29th July 2020 at the High Court, Commercial Division. Undeniably, there are two parallel suits, filled at two different times, one earlier than the other, in two different courts with jurisdiction to

- 215 hear them, and are now running concurrently. Section 209 of the Magistrates Court Act does not point out whether the two suits alluded to should be criminal or civil; neither does it point out whether one suit should be criminal and the other civil. It emphasises two suits/proceedings running concurrently, which is the case in this matter. Accordingly, element one is considered proven. - 220

# **Element 2: The Subject Matter of the Suit or Proceedings are directly or substantially the same.**

The applicant averred that Criminal Case No. 261 of 2022 and Civil Suit No. 489 of 2020 have identical issues. On the other hand, the respondent argued that the two cases differed in terms of 225 remedies sought; consequently, the trial magistrate was correct in declining to stay the criminal case in favour of the civil suit.

In truth, two concurrent suits have been instituted in courts vested with jurisdiction to hear them. One suit is civil, and the other is criminal. By this fact, the said cases differ not only in terms of 230 remedies sought but also in terms of issues/subject matter/offences, standard of proof, Parties who Institute proceedings, and Survival/succession of the suit in case of death. However, the discussion herein shall only be limited to whether the subject matters of the said suits/proceedings are directly or substantially the same about offences and remedies sought.

## 235 **1. Offences**

In the Criminal Suit, the applicant was charged with receiving stolen property under section 314(1) of the Penal Code Act. In the Civil Suit, the applicant herein was sued as director/administrator of the 2nd defendant (Ridge Infrastructure Limited) for breach of contract and Fraud. The ingredients 240 of receiving stolen property differ significantly from those relating to breach of contract and fraud. To prove the offence of receiving stolen property, the prosecution must prove three essential ingredients, i.e. 1). Theft; 2). Ownership of the stolen property; and 3). Participation of the accused in receiving the stolen property. Whereas the ingredients of breach of contract include: 1). 245 Presence of a valid contract; 2). The plaintiff performed their part of the contract; 3). The defendant

failed to perform their part of the contract; and 4). The Plaintiff sustained damages caused by the defendant's breach.

Regarding Fraud, the ingredients to be proved include: 1). There must be a false representation/statement of facts; 2). The representation must be made with the knowledge that it 250 is an incorrect or reckless disregard for its truth or falsehood; 3). The representation must have been made by the party to the contract, with his knowledge, or by his agent; 4). The representation must have been made with an intention to deceive the other party; 5). The representation must have induced the other party to act upon it; and 5). The party misled must have suffered some loss.

- 255 Had the Criminal suit against the applicant been hinged on Criminal Trespass contrary to section 302 of the Penal Code Act and the Civil Suit on Trespass to Land where ownership rights are contested, the interest of justice would have strongly persuaded the court to stay proceedings in the Criminal matter in favour of the Civil case even if the criteria for stay as provided in section 209 of the Magistrates Court Act is not fully met. This is so because the subject matter in the two 260 cases is substantially the same, though disguised. Criminal Trespass and Trespass to Land in Civil matters share the common ingredient of "unlawful entry into the land." The next thing to be determined would be the land's rightful owner. If ownership is being contested, a Civil Court is better placed to deal with the matter to its logical conclusion. By allowing the Civil Court to give her decision on the ownership rights to the suit, the court would have saved time, avoided 265 multiplicity of suits, prevented abuse of the court process, and avoided potential conflicting

# judgments to the benefit of the parties involved and an enhanced image of the institution.

### **2. Remedies.**

Criminal remedies or sanctions can take various forms depending on the offence, including imprisonment (a maximum of 14 years for receiving stolen property), community service, fines,

compensation, and cautions, inter-alia. The primary purpose of criminal remedies is to punish the offender if found guilty. This is why the Continuance of a criminal case after the death of an 275 accused person is considered meaningless. And since the prosecution can only withdraw a matter of a living person, yet a dead person cannot be discharged, in such circumstances, the case abates when an accused dies.

In Criminal Case No. 261 of 2022, the applicant allegedly received stolen property in the sum of **UGX. 249,082,200/= (Uganda Shillings Two Hundred Forty-Nine Million, Eighty-Two**

- 280 **Thousand, Two Hundred**). If convicted, section 314 (1) of the Penal Code Act provides 14 years as the maximum term of imprisonment for the offence of receiving stolen property. Under section 197 (1) of the Magistrate's Court Act, a trial magistrate is not mandated but empowered with discretion to compensate victims. - 285 Given that the trial magistrate is not bound by the prayers of the Director of Public Prosecutions, even if the prosecution prays for compensation, this discretionary power may or may not be used to order the applicant herein to compensate the victim a tune of **UGX. 249,082,200/= (Uganda Shillings Two Hundred Forty-Nine Million, Eighty-Two Thousand, Two Hundred)** if convicted. It would, therefore, be an error for any court to speculate on how a trial magistrate 290 would exercise their discretionary powers on compensation and rely on a speculative thought of payment upon conviction to pronounce itself on the matter of staying proceedings.

On the other hand, civil remedies can take various forms, such as declarations, compensation, damages, injunctions, and costs, to mention but a few. The fundamental purpose of remedies in 295 noncriminal cases is not to punish the breaching party but, if possible, to put the non-breaching party in the position they would have been in had there been no breach. Or, as is said, the purpose is to make the non-breaching party whole. For this reason, if a defendant dies in a civil matter, the suit shall not abate in most cases. Upon application, the deceased's legal representatives (administrators or executors) are made a party to the lawsuit, which proceeds (*see Order 24 Rules*

300 *1, 3, & 4 of the Civil Procedure Rules).*

Unlike the Criminal Case, in Civil Suit No. 489 of 2021, the court cannot grant reliefs not prayed for. It is bound only to give the relief asked for. See **Crane Bank Ltd & Anor V Belex Tours & Travel Ltd (Civil Appeal No. 6 of 2013 consolidated with Civil Appeal No. 1 of 2014) UGSC (8th** 305 **July 2015)** where the Supreme Court held that "*a party cannot be granted relief which it has not claimed in the plaint or claim.*" So, suppose the applicant is found liable in the Civil Suit. In that case, the court is bound to grant civil remedies through declarations, refunds/Refunds, costs, and general damages, which were prayed for.

310 Regarding refunds, the plaintiff in the Civil Suit prayed for a sum of **UGX. 2,303,169,441 (Uganda Shillings Two Billion Three Hundred Three Million, One Hundred Sixty-Nine Thousand, Four Hundred and Forty-One)** against the 24 defendants jointly and severally. Under joint and several liability, when someone is partly responsible for causing harm, they can be responsible for fully compensating the victim even if others share the blame. A Plaintiff may

315 recover all the sums of money decreed from any of the defendants regardless of their share of the liability, and civil jail can only come in as a last resort at the point of a failed execution.

Element two is not proved because, unfortunately for the applicant herein, the subject matter in the two existing suits is not substantially the same. The elements to establish the offences in the 320 respective suits are different. The remedies and the rationale for seeking them in separate suits are other. In the criminal case, upon conviction, the default remedy is up to 14 years of Imprisonment for receiving stolen property. Compensation as a remedy is subject to the discretion of the trial magistrate, which may or may not be used by them. In the civil case, upon determination of liability, the default remedies as prayed for include declarations, refunds/Refunds, costs, and 325 general damages against all 24 defendants jointly and severally. It is worth noting that the remedies sought in the criminal case are punitive for the benefit of society.

In contrast, those sought in the Civil Suit are restorative for the benefit of an individual. And that's why in criminal matters, when an accused dies, the case abates, but, more often than not, in civil matters, the suit shall not abate. Upon application, the deceased's legal representatives 330 (administrators or executors) are made a party to the suit, and it proceeds.

## **Element 3: The Suit or Proceedings should be between the same Parties under whom they claim or litigate.**

335 Criminal proceedings are usually instituted and carried out by the State (through the office of the Director of Public Prosecutions) on behalf of a complainant (the reporting person). Under Article 120 (3), the functions of the Director of Public Prosecutions are the following-

*"(a) To direct the police to investigate any information of a criminal nature and to report to him or her expeditiously;*

340 *(b) To institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial;*

*(c) To take over and continue any criminal proceedings instituted by any other person or authority;*

*(d) To discontinue at any stage before judgment is delivered, any criminal proceedings to which this article relates, instituted by himself or herself or any other person or authority, except that the*

345 *Director of Public Prosecutions shall not discontinue any proceedings commenced by another person or authority except with the consent of the court."*

From the preceding, it is clear that the state, acting through the Director of Public Prosecutions, is the prosecutor of all criminal matters regardless of whether they instituted them. This is so because a crime is considered wrong against the individual victim but also against society. Because of this

- 350 consideration, the state, representing the people in their collective capacity, participates in a criminal trial as a party against the accused person. The Compliant may be used as a witness in such proceedings. Conversely, the institution of proceedings in civil matters is different. Proceedings in Civil matters are commenced when a person files a case before the court as either a plaintiff, applicant or petitioner. In civil matters, one can individually sue anyone they think they - 355 have a claim against. Individuals need not seek permission from the Attorney General to institute civil proceedings separately.

Regarding the instant case, the record reveals that Pegasus Technologies Limited filed Civil Suit No. 489 of 2021 at the Commercial Court against two companies, i.e. Women Initiative for Rural Development Organization and Ridge Infrastructure Limited (the 1 st and 2nd defendants, 360 respectively), whose directors/administrators were enjoined and a claim made collectively against

all 24 defendantsjointly and severally for a sum of **UGX—249,082,200/= (Uganda Shillings Two Hundred Forty-Nine Million, Eighty-Two Thousand, Two Hundred**. The applicant herein, director of the 2nd defendant, was enjoined as the 13th Defendant. On the other hand, in criminal Case No. 261 of 2022, the Office of the Director of Public Prosecutions instituted and prosecuted 365 the proceedings. The applicant is the only accused person.

Pegasus Technologies Limited's only role is one of a complainant who may be used as a prosecution witness. He is not and cannot be both prosecutor and witness, unlike in Civil Suit No. 489 of 2021, where the institutor of proceedings is both an institutor and witness. Even if Criminal 370 Suit No. 261 of 2022 were instituted through private prosecutions, the complaint would still be prosecuted on behalf of the state and not as an individual. The court, therefore, agrees with the respondent herein that much as one of the respondents in Civil Suit No. 489 of 2021 is an accused person in Criminal No. 261 of 2022, the parties in both suits are not the same. As a prosecutor in criminal cases, the state has not, and cannot, turned itself into a plaintiff in Civil Matters. Also, 375 the complainant has not and will not become the prosecutor of the criminal case. He is only a witness and rightfully remains so.

Again, had the Criminal suit against the applicant been hinged on Criminal Trespass contrary to section 302 of the Penal Code Act and the Civil Suit on Trespass to Land where ownership rights 380 are contested, the interest of justice would have strongly persuaded the court to stay proceedings in the Criminal matter in favour of the Civil case even if the criteria for stay provided under section 209 of the Magistrates Court Act is not fully met with. Element three is accordingly considered not proved.

# 385 **Element 4: Is there a real danger of prejudice against the applicant if criminal proceedings are allowed to proceed?**

The gist of the applicant's case is founded on the following factors, namely that:

- a) The plaintiff, the complainant in the criminal case, has criminalised a civil case arising from a contract between the complainant and Ridge Infrastructure Limited, where the 390 applicant is a Director. - b) It is improper for the prosecution to file criminal charges against the applicant, knowing

she is one of the defendants in the civil suit.

- c) The complainant is misusing criminal law to compel the applicant to agree to the complainant's claims. - 395 d) That the prosecution's actions in the criminal trial amount to an abuse of the court process contrary to Article 120(5) of the Constitution. For ease of reference, Article 120(5) of the Constitution provides that:

**In exercising his or her powers under this article, the Director of Public Prosecutions shall regard the public interest, the interest of the administration of justice and the** 400 **need to prevent abuse of the legal process**. The applicant buttressed her arguments by citing the decision of Justice Mubiru in Simba Properties Investment Company Limited vs Vantage Mezza Nine Fund Partnership HCMA No.414 of 2022, where he relied on the Indian case of Gopal Chandra Chakravarti and Another vs Suresh Chandra Sanyal and Another AIR 1929 Cal 563 and held that :

405 **The criminal justice system cannot be used for collateral purposes. Accordingly, criminal proceedings will be stayed where private prosecution has all the hallmarks of a party in the civil court continuing the battle in the criminal court or where the sole aim of litigation is to recover damages.**

In conclusion, the applicant invited the court to stay the criminal proceedings in Criminal Case 410 No. 261 of 2021 to prevent abuse of the court process.

The case for the Respondent, on the other hand, was founded on the following factors, namely that:

- a) The Applicant is charged with an offence provided for in the Penal Code Act, and the 415 charges aim to prove that the Applicant received stolen property contrary to section 314(1) of the Penal Code Act. - b) That the complainant in the Criminal proceedings is the DPP and not Pegasus Technologies Limited. - c) That the Criminal proceedings in Criminal Case Number 261 of 2020 are public in nature, 420 and public policy demands that it be tried in preference to a civil trial. See Uganda vs Ssonko Edward (2019)UGHCCRD 42.

The Respondent asked the court to dismiss the application for revision so that the criminal

proceedings could be pursued to a logical conclusion.

425 Criminal Proceedings can only be stayed if the Applicant can prove that there is a real danger of prejudice against her if criminal proceedings are allowed to proceed, and in determining whether the applicant will be prejudiced, the court must have regard to the following factors, which may not be exhaustive but are instructive-

a) the possibility that the criminal action might deprive the defendant of a fair trial in the civil 430 trial;

b) the proximity in time of the trial of the criminal proceedings to the trial of the civil action.

c) where the disclosure of the defence in criminal proceedings by an accused may give the defense an unfair advantage, resulting in a miscarriage of justice in the civil proceedings;

d) the burden on the defendant of preparing for both sets of proceedings concurrently;

- 435 e) whether the defendant has already disclosed his defence to the allegations and - f) the conduct of the defendant, such as his own prior invocation of the civil action when it had suited him.

A perusal of the arguments put forward by the Applicant for staying the criminal trial neither mirrors these factors nor brings out the real dangers that the Applicant is expected to suffer if the 440 two cases are allowed to proceed concurrently. I expected the Applicant, who has had more than ample time, to highlight the prejudice she is likely to face instead of complaining about criminalising a civil claim and the purported misuse of criminal law to further civil claims instead of showing how the continued prosecution of the criminal case would cause a miscarriage of justice to her. I expected the Applicant to tell the court how her testimony in either court would 445 affect her ability to defend herself. I equally expected the Applicant to show how her defences in the criminal trial would jeopardise her civil trial. None were rendered, and therefore, the applicant failed to discharge the burden of proving that the continuation of the criminal trial would prejudice her.

Looking at the case from another perspective, it is possible that a set of facts can produce both 450 civil and criminal obligations. Therefore, the fact that the complainant chose to start with a civil case cannot stop the Director of Public Prosecutions, who is charged with ensuring public safety through the enforcement of criminal law, from pursuing criminal charges against a party who is facing a civil trial if there is sufficient evidence to show that the accused has committed an offence.

The only limitation against the DPP is when prosecuting the applicant would not be in public

455 interests, is against the interests of the administration of justice or would significantly prejudice her in the civil case, which, in this case, has not been established by cogent evidence other than by expressions of fear and conjecture.

### **7.0. Conclusion**

#### 460

The application for revision is dismissed because the Applicant failed to establish that the continuance of Criminal Case number 261 of 2022 Uganda vs Uwera Agnes will prejudice her in HCCS 489 of 2020 in the Commercial Court. The Trial Magistrate is, therefore, directed to hear Criminal Case No. 261 of 2022 expeditiously.

465 It is so ordered.

Gadenya Paul Wolimbwa **JUDGE** 3 rd July 2023

#### 470

I request the Deputy Registrar to deliver this decision on 6th July 2023.

Gadenya Paul Wolimbwa **JUDGE** 3 rd 475 July 2023