Wakilii

Bemba Lekobowamu v Uganda [2024] UGHC 1325

High Court · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Entebbe Chief Magistrate's Court conviction and sentence on four counts
Decision
Appellant's conviction and concurrent sentences upheld in full

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal against conviction and sentence on four criminal counts arising from a land dispute. The appellant had unlawfully entered land in Block 413 that was in the possession of registered purchasers under a memorandum of understanding with estate administrators, removed boundary marks, damaged property including a vehicle mirror and phone, and assaulted a driver. The Court held that the prosecution proved all essential ingredients beyond reasonable doubt, including unlawful entry, intent to intimidate, malicious damage, removal of boundary marks with intent to defraud, and assault causing actual bodily harm. The appellant's claim of right failed because his bequest was on different land (Block 415). The sentences were concurrent and within statutory limits.

Outcome

Appellant's conviction and concurrent sentences upheld in full

Facts

On 12 April 2021 at Bwerenga Village, Wakiso district, the appellant and others entered land on Block 413, plots 2161, 2162, 2166, 2167, 2170, 2171, 2164, 2175, and 2177. The land belonged to purchasers (Kalumba Stephen, Tom Odaka and others) who had bought it from Gumu Investments in 2017. The purchasers initially could not take possession due to caveats lodged by the late Besweri Nsubuga's estate. In February 2021, the purchasers entered a memorandum of understanding with the estate administrators, returned a residue title, and the caveats were withdrawn, allowing them possession. When the purchasers arrived to grade the land, the appellant drove a red pickup to the site with three others, ordered the tractor operator to stop, removed concrete boundary mark stones, threw a stone damaging the side mirror of vehicle UAH 093S, grabbed and destroyed Tom Odaka's phone and spectacles, and assaulted the driver Stanley Mirembe by hitting him on the head with a mark stone and tearing his shirt. The appellant claimed he owned the land under a bequest from the late Besweri Nsubuga. However, the estate administrator testified the appellant's bequest was on Block 415, not Block 413.

Issues

  1. Whether the trial magistrate properly evaluated the evidence against the appellant.
  2. Whether the trial magistrate erred in law and fact in failing to consider the defence evidence, resulting in miscarriage of justice.
  3. Whether the sentence and conviction passed by the trial magistrate were manifestly harsh and excessive.

Orders

  • Appeal dismissed.
  • Conviction on all four counts upheld.
  • Sentence upheld: 6 months imprisonment on counts 1 and 5 (criminal trespass); 23 months imprisonment on count 2 (malicious damage); 12 months imprisonment on count 3 (removing boundary mark); 23 months imprisonment on count 4 (assault occasioning actual bodily harm); all sentences to run concurrently.

Rules and key headnotes

Criminal Trespass — Unlawful Entry — Actual Possession Required
For the offence of criminal trespass, the complainant must be in actual as opposed to constructive possession at the time of entry. Possession is intended to be possession at the time of entry and the person in possession need not be physically present at the actual time of entry. Possession means effective physical or manual control or occupation evidenced by some outward act.
Claim of Right — Bona Fide Claim — Good Faith Requirement
Under section 7 of the Penal Code Act, a person is not criminally responsible for an offence relating to property if the act was done in exercise of an honest claim of right without intention to defraud. For a claim of right to qualify as bona fide, it must be made in good faith, without fraud or deceit, and must be sincere and genuine. A bona fide claim of right must be well-founded and reasonable; the court must be convinced there was a genuine possibility (not just a fanciful one) that the accused could claim the property as his own, even if mistaken.
Criminal Trespass — Intent to Intimidate — Conduct Test
To intimidate means to put in fear by show of force, threats or violence. It is not necessary that the accused actually commits an offence or actually intimidates, annoys or insults the person in possession; mere intention to do so amounts to criminal trespass. The court considers the totality of the accused's conduct including ordering work to stop, removing boundary marks, damaging property and assaulting persons present.
Malicious Damage — Willfulness — Intentional Act Without Cause
Willfully within the context of malicious damage to property means intentionally as opposed to accidentally, that is, by exercise of one's free will. Willful may be described as voluntary and purposeful, but not necessarily malicious. The prosecution is not required to prove malice in the sense of improper motive or vengeance. All that is required is proof that a wrongful act was intentionally done without cause or excuse. Mere knowledge that damage is likely to result is sufficient.
Contradictions and Inconsistencies — Minor Discrepancies
Where there are contradictions and discrepancies between prosecution witnesses which are minor and of a trivial nature, these may be ignored unless they point to deliberate untruthfulness. Where contradictions and discrepancies are grave and go to the root of the case, this would ordinarily lead to rejection of such testimony unless satisfactorily explained. A contradiction or inconsistency which is major and goes to the root of the case should be resolved in favour of the accused, but where it is minor and not a deliberate lie intended to deceive the court, it should be ignored.
Appellate Review — Sentence — Interference with Discretion
An appellate court will not interfere with a sentence imposed by a trial court that has exercised its discretion unless the exercise of discretion results in a sentence that is manifestly excessive or so low as to amount to a miscarriage of justice, or where the trial court ignored an important matter or circumstance that ought to have been considered, or where the sentence imposed is wrong in principle. There is a high threshold to be met for an appellate court to intervene; sentencing is a matter of judicial discretion and perfect uniformity is hardly possible.

Legislation cited (14)

Cases cited (30)

  • Woolmington v DPP (1935) AC 462
  • Miller v Ministry of Pensions (1947) 2 ALL ER 372
  • Bogere Moses vs Uganda SC Criminal Appeal of 1997
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Pandya v Republic [1957] EA 36
  • Peters v Sunday Post [1958] EA 424
  • Insrail Epuku v R [1934] 1 166
  • Uganda v Kinyera Walter and 3 Others (High Court Criminal Session Case No. 0374 of 2018)
  • Olanya Mario and Oloya Samuel v Uganda (High Court Criminal Appeal No. 0020 of 2017)
  • R v Bernhard (1938) 26 Cr App R 137
  • Nsibika Peter Wejuli v Uganda [2010] UGHC 148
  • Kigorogolo v Rueshereka [1969] EA 426
  • Wamunga v Republic (1989) KLR 424
  • Karorero v Uganda [2002] UGHCCRD 199
  • Nakigula Jalia v Uganda (Criminal Appeal No. 055 of 2022)
  • Uganda v Nandawula (Criminal Appeal No. 71 of 2023) [2024] UGHCCRD 44
  • Uganda v Gbonga and 2 Others (Criminal Appeal No. 5 of 2015) [2017] UGHCCRD 101
  • Serapio Tinkamalirwe v Uganda (Supreme Court Criminal Appeal No. 27 of 1991)
  • Ntambala Fred v Uganda (Criminal Appeal No. 34 of 2015)
  • Sewanyana Livingstone v Uganda (Supreme Court Criminal Appeal No. 19 of 2006)
  • Oketch David v Uganda (Supreme Court Criminal Appeal No. 24 of 2001)
  • Obwalatum Francis v Uganda (Criminal Appeal No. 30 of 2015)
  • R v A.M, 2014 ONCA 769
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kyalimpa Edward v Uganda (Supreme Court Criminal Appeal No. 10 of 1995)
  • R v Haviland (1983) 5 Cr App R 109
  • Ogalo Owuora v R (1954) 21 EACA 126
  • R v Mohamedali Jamal (1948) 15 EACA 126
  • Aharikundira Yusitin v Uganda [2018] UGSC 49
  • Kamya Johnson Wavamunno v Uganda (Supreme Court Criminal Appeal No. 16 of 2000)

Full judgment

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Bemba Lekobowamu v Uganda 2024 UGHC 1325 (21 October 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.