Sembajjwe v Uganda (Criminal Appeal 37 of 2021)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
Held that where an accused person raises a bona fide claim of right under section 7 of the Penal Code Act by asserting honest belief in ownership of disputed land, the court is obliged to investigate that defence even if the claim is unfounded in law or fact. The trial magistrate erred in failing to consider the defence of honest claim of right when the appellant genuinely believed the land belonged to him. A criminal trial in trespass cannot make definitive determinations on land ownership where civil proceedings are pending. Appeal allowed, conviction quashed, sentence set aside.
Outcome
Appellant acquitted on all three counts of criminal trespass, malicious damage to property, and removing boundary marks
Facts
The appellant was convicted by the Magistrate's Court on three counts: criminal trespass, malicious damage to property, and removing boundary marks, arising from a land dispute. A 4.5 acre parcel at Kabunsa, Matugga originally belonged to the father of Mary Samali Sembajjwe, the appellant's estranged wife. In 1986, 7 acres were gifted to her and transferred into the names of herself, her husband (the appellant), and their son David Massade. After Mary returned from the UK in 2013, she found the appellant had remarried. She and her son Massade entered a memorandum of understanding to divide the land and sold their portion to the complainant Kiwalabye Charles in August 2015 for UGX 125,000,000. The complainant fenced the land. The appellant removed the fence, cut down banana plantations, and removed barbed wire, claiming he had bought the land in 1987 from Gertrude Namatovu and that it belonged to him. The appellant was sentenced to 6 months on each count to run consecutively.
Issues
- Whether the trial magistrate erred in failing to evaluate the evidence against each ingredient of the offences before convicting the appellant.
- Whether the trial magistrate erred in ignoring the appellant's bona fide claim of right under section 7 of the Penal Code Act as a complete defence to the charge of criminal trespass.
Orders
- Appeal allowed.
- Conviction entered by the lower court is quashed.
- Sentence and orders of the trial magistrate are set aside.
Rules and key headnotes
Legislation cited (4)
Cases cited (4)
- Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
- Nestor Machumbi Gasasira v Uganda (Constitutional Petition No. 17 of 2011)
- Joseph Zagyenda v Uganda (Criminal Application No. 11 of 2011)
- Kiyengo v Uganda [2005] 2 EA 106
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.