Wakilii

Okello Charles v Uganda (Criminal Appeal No. 3 of 2018)

High Court · [2019] UGHC 65 · 2019 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction and sentence by trial magistrate on charge of stealing a motor vehicle.
Decision
Appellant's conviction for stealing a motor vehicle upheld. Sentence reduced to six years two months' imprisonment to account for remand period. Compensation order maintained.

Observed later treatment

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Holding

Held: Appeal against conviction dismissed. The prosecution proved beyond reasonable doubt that the appellant stole the bus by conversion, disposing of it without the owner's authority and with intent to permanently deprive him of it. The appellant failed to discharge the evidential burden of proving he had authority to sell the bus. Appeal against sentence partly allowed — sentence reduced from seven years to six years two months to account for ten months spent on remand, as required by Article 23(8) of the Constitution. Compensation order of shs. 46,000,000/= upheld on the basis of material loss proved in evidence.

Outcome

Appellant's conviction for stealing a motor vehicle upheld. Sentence reduced to six years two months' imprisonment to account for remand period. Compensation order maintained.

Facts

In November 2014 Seraphine Ramtoo Olanya bought a bus for shs. 62,000,000/= and spent shs. 58,000,000/= refurbishing it. He entrusted the bus to Okello Charles, the appellant, to manage its operations plying the Kampala-Gulu route under the name Redeemer Bus. In July 2015 the bus broke down and was eventually parked at Universal Garage in Kampala for eight months. The owner refused to remit shs. 35,000,000/= required for engine repairs and instructed the appellant to keep the bus parked until his return. When the owner returned in September 2015 and December 2016, the appellant admitted having sold the bus as scrap in August 2016 without authority and deposited only shs. 5,000,000/= onto the owner's account. The appellant claimed the owner had instructed him to find buyers, but produced no written authorisation. The owner's signature on the sale agreement was a forgery.

Issues

  1. Whether the trial magistrate erred in convicting the appellant of stealing a motor vehicle.
  2. Whether the sentence of seven years' imprisonment was illegal, manifestly harsh, excessive and disproportionate.
  3. Whether the order for the appellant to pay compensation of shs. 46,000,000/= was illegal and without legal basis.

Orders

  • Appeal against conviction dismissed.
  • Sentence of seven years' imprisonment set aside.
  • Appellant to serve six years and two months' imprisonment starting from the date of conviction, 31st January 2018.
  • Compensation order of shs. 46,000,000/= within six months upheld.

Rules and key headnotes

Stealing a Motor Vehicle — Distinction Between Theft and Stealing by Conversion
Whereas theft is an offence against possession and a person already in possession of property cannot commit theft of it, stealing can be committed by conversion. Stealing of a vehicle has a wider scope than the offence of theft, in that stealing can also be committed by conversion.
Stealing by Conversion — Elements
Conversion is committed by a person who deals with chattels not belonging to him or her in a manner inconsistent with the rights of the owner. The act of taking as an actus reus of the offence includes taking possession, refusing to give up possession upon demand, disposing of the goods to a third person, or destroying them, provided that there is an intention on the part of the accused in so doing to deny the owner's right or to assert a right vested in the owner.
Evidential Burden — Defences of Exception, Exemption or Excuse
Where in a criminal trial the accused relies for his or her defence on any exception, exemption, proviso, excuse or qualification based on a matter within his or her peculiar knowledge, the evidential burden of proving the exception, exemption, proviso, or excuse is ordinarily cast on him or her where, taking the circumstances of the case into account, it would be proportional and fair to place the burden of proof on the accused.
Evidential Burden — Standard of Proof
An evidential burden of proof when cast on the accused requires only a showing that there is sufficient evidence to raise an issue as to the non-existence of the fact as alleged by the prosecution. The accused need not testify to discharge that burden. The burden may be discharged by pointing to some piece of evidence tendered by other means and perhaps by the prosecution sufficient to raise a reasonable doubt as to his or her innocence.
Cross-Examination — Failure to Challenge Material Evidence
An omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination would lead to an inference that the evidence is accepted, subject to its being assailed as inherently incredible or possibly untrue.
Sentencing — Period on Remand
When imposing a custodial sentence on a person convicted of an offence, it is mandatory under Article 23(8) of The Constitution to take into account the period spent on remand while sentencing a convict. Regulation 15(2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 requires the court to deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account.
Compensation Orders — Section 197 of The Magistrates Courts Act — Principles and Procedure
While the court has discretion to order compensation under section 197 of The Magistrates Courts Act for material loss caused by the offence, it must satisfy itself not only that the offender is civilly liable, but that if a civil suit were instituted against him, he would pay substantial compensation. The power to order compensation is subject to the basic rules of a fair hearing. The court should hear prosecution evidence regarding compensation as part of its case generally so that the accused has ample opportunity to respond and adduce rebuttal evidence at the defence stage.

Legislation cited (16)

Cases cited (28)

  • Bogere Moses v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Pandya v. Republic [1957] EA. 336
  • Shantilal M. Ruwala v. R. [1957] EA. 570
  • Peters v. Sunday Post [1958] E.A 424
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)
  • R v. Turner (No 2) [1971] 1 WLR 901
  • R. v. Bonner and others [1970] 1 WLR 838, [1970] 2 All ER 97, 54 Cr App Rep 257
  • Woolmington v. DPP [1935] A.C. 462
  • Regina v. Edwards [1975] 1 QB 27
  • Regina v. Hunt (Richard) [1987] 1 AC 352, (1986) 84 Cr App R 163, [1986] 3 WLR 1115, [1987] 1 All ER 1
  • Daniel M'Naghten's Case [1843] 8 ER 718
  • R v. Sullivan [1984] 1 AC 156
  • Nalongo Naziwa Josephine v Uganda (Supreme Court Criminal Appeal No. 35 of 2014)
  • Maria Ciabaitaru M'mairanyi and Others v. Blue Shield Insurance Company Limited, 2000 [2005]1 EA 280
  • James v. R. (1950) 18 E.A.C.A. 147
  • Ogalo s/o Owoura v. R. (1954) 24 E.A.C.A. 270
  • Kizito Senkula v Uganda (Supreme Court Criminal Appeal No. 24 of 2001)
  • Bashir Ssali v Uganda (Supreme Court Criminal Appeal No. 40 of 2003)
  • R v. Ball (1951) 35 Cr. App. R 164
  • Ninsiima Gilbert v Uganda (Court of Appeal Criminal Appeal No. 180 of 2010)
  • Katende Ahamad v Uganda (Supreme Court Criminal Appeal No. 6 of 2004)
  • Zziwa v Uganda (Criminal Appeal No. 217 of 2003)
  • Kaserebanyi v Uganda (Criminal Appeal No. 40 of 2006)
  • Habre International Co. Ltd v. Kasam and others [1999] 1 EA 115
  • Pioneer Construction Co. Ltd v British American Tobacco (High Court Civil Suit No. 209 of 2008)
  • James Sawoabiri and another v Uganda (Supreme Court Criminal Appeal No. 5 of 1990)

Full judgment

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Okello Charles v Uganda (Criminal Appeal No. 3 of 2018) [2019] UGHC 65 (26 September 2019)
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.