FIRM : FIRM D5 – MBARARA
SUBJECT: CRIMINAL PROCEEDINGS
TERM : TERM TWO, WEEK SEVEN
DATE : 24TH -28TH FEBRUARY 2025
MODULE 2: TRIAL PROCEEDINGS IN THE HIGH COURT.
WORKSHOP ONE
GROUP 1
BRIEF FACTS – CRB 235/2024
On July 15, 2024, the complainant Daniel Mading Mayot, a South Sudanese businessman,
checked into Grand Royal Park Hotel, Muyenga, with USD 45,000 obtained from the sale
of his bus to Zwilling Bus Services. He intended to exchange the money into Ugandan
Shillings to purchase a property in Buziga.
At around 7:00 PM, Mayot sought assistance from the hotel manager, Njoroge Muiru, to
find a forex bureau. He was advised to check along Ggaba Road. While searching, he
approached a police officer guarding Metropole Bank, who consulted with another officer
at Islamic Business Bank. After a brief discussion, the officer made a 10-minute phone call,
then offered to accompany Mayot to a location for exchange.
Mayot was led through a corridor where a police pickup truck (Reg. No. UPA 4678)
arrived. A man claiming to be a forex broker invited him inside. Another man, wearing
dark glasses, sat in the back holding a wrapped object. The car, with tinted windows,
drove around for about two hours before stopping at an unknown location.
Mayot was asked to hand over the money to the forex broker, who left with another man. As
he waited, the driver pressured him to follow them, but he hesitated. The man with dark
glasses then unwrapped a broken beer bottle, intimidating him before pushing him out of
the car. The vehicle sped off, leaving him stranded. Realizing he had been robbed, Mayot
sought help and eventually returned to Kampala by motorcycle.
Witness Statements
1. Njoroge Muiru (Hotel Manager)
o Confirmed Mayot’s stay at the hotel and his request for a forex bureau.
o Witnessed Mayot receiving a large sum of US dollars from a Zwilling Bus
Services representative.
o Found it unusual that Mayot never returned to sleep in his reserved room.
2. Asmarina Awet (Eyewitness – Restaurant Owner)
o Observed a tall, dark-complexioned man (Mayot) speaking to a police
officer at Metropole Bank.
o Saw the officer consult another officer, make a long phone call, and then
escort Mayot through a corridor.
o Noted the remaining officer acting excited, making phone calls, and later
abandoning his post.
Suspect Statements
1. D/C Kamba Twaha (Suspect 1 – Police Officer)
o Denied involvement, claiming he had traveled to Mayuge to see his sick
mother.
o Stated he did not steal but admitted receiving money as an appreciation.
2. D/C Mbiringi Zakayo (Suspect 2 – Police Officer)
o Admitted working at Metropole Bank on the night of the incident.
o Confessed that the money was stolen, but denied direct involvement.
ISSUES.
1.Whether the facts disclose any offences?
2.Whether there is sufficient evidence to support the offences?
3.What is the forum, procedure and the necessary documents?
LAW APPLICABLE.
1. The Constitution of the Republic of Uganda, 1995.
2. The Judicature Act, Cap.16
3. The Penal Code Act, Cap 128.
4. The Trial on Indictments Act, Cap.25.
5. The Criminal Procedure Code Act, Cap 122.
6. The Evidence Act, Cap 8.
RESOLUTION.
ISSUE 1.Whether the facts disclose any offences?
Section 1 of Penal Code Act, Cap128 defines an offence as an act, attempt or omission
punishable by law.
Article 28(3)a provides for presumption of innocence that a person is presumed innocent
until proven guilty.
Article 28(7) of the Constitution of the Republic of Uganda 1995 (As amended) provides for
the principle of legality and it clearly states that no person shall be charged with or convicted
of a criminal offence which is founded on an act or omission that did not at the time it took
place constitute a criminal offence.
Furthermore, the very Constitution gives an exception to the principle of legality under
Article 28(12) which states that except for contempt of Court, no person shall be convicted of
a criminal offence unless the offence is defined and the penalty for it prescribed under the
law.
From the facts the following are the possible offences;
1.Aggravated Robbery C/S 266 and 267(2) of the PCA cap 128.
In the case of Uganda v Wanyama Ivan and 3 Ors Cr. No.351 of 2020.
The Court laid down the ingredients of aggravated Robbery which must be proved beyond
reasonable doubt to include;
(1) There was theft of the Property
(2) Use of actual violence at, before or after the theft or that the accused
person caused grievous harm to the complainant.
(3) The assailants were armed with a deadly weapon before, during or
after the theft.
(4) The accused participated in the robbery.
2.Abduction C/S 224 and 227 of PCA.
Sect 224 of the PCA cap 128 defines abduction to mean any person who by force compels or
by any deceitful means induces any person to go from any place is said to abduct that person.
Sect227 of Cap 128 lays down the ingredients to include;
(1) Forcing the person to move from one place
(2) with intention to cause that person Secretly or wrongfully Confined.
3. Assault causing Actual bodily Harm C/S 219 of the PCA Cap 128.
In the Case of Uganda v Oryem Bosco Olaka Cr. Appeal No.05 of 2018. The court laid
down the Ingredients of Doing grievous harm which must be proved beyond reasonable
doubt to include the following
(1) The victim sustained grievous harm.
(2) The harm or Injury was caused unlawfully.
(3) The accused caused or participated in causing the grevious harm.
ISSUE 2. Whether there is sufficient evidence to support the offences?
Burden of proof.
Under Sect 101(1) of the Evidence Act, Cap 8 states that whoever desires any court to give
judgment as to any legal right or liability dependent on the existence of facts, which he or she
asserts must prove that those facts exist.
Subsection 2 thereof states that when a person is bound to prove the existence of any fact, it
is said that the burden lies on that person.
Standard of Proof.
In Woolmington Vs DPP (1935) AC 462, court held that the burden to prove a charge
against an accused person lies on the prosecution and the prosecution must prove all the
ingredients of the offence beyond reasonable doubt.
In the Supreme Court case of Ojepan Ignatius Vs Uganda (SCCA NO. 25 OF 1995), court
held that onus to prove a certain fact in criminal cases is always on the prosecution except in
a few statutory offenses, when it shifts to the accused and it is on the balance of probabilities.
Therefore, these ingredients are supported by the following evidence from the police file.
Aggravated Robbery (C/S 266 and 267(2) of the Penal Code Act, Cap 128)
Ingredients & Supporting Evidence
1. There was theft of the property
o The complainant, Daniel Mading Mayot, was deprived of USD 45,000 by the
suspects, including Mbiringi Zakayo and Twaha Kamba.
o Some of the stolen money (USD 3,000 from Twaha Kamba and USD 4,000
from Mbiringi Zakayo) was later recovered.
2. Use of actual violence at, before, or after the theft OR causing grievous harm to
the complainant
o After taking the money, the assailants forcibly pushed the complainant out of a
moving vehicle.
o This resulted in injuries to his forehead and wrist, confirming the use of actual
violence after the theft.
3. The assailants were armed with a deadly weapon before, during, or after the
theft
o Although no weapon is specifically mentioned in the facts, the threat of harm
and physical violence could imply the use of force equivalent to a deadly
weapon.
o The presence of police officers among the assailants could indicate
intimidation using their official status, which can be equated to the use of a
deadly weapon.
4. The accused participated in the robbery
o Both Mbiringi Zakayo and Twaha Kamba actively participated in planning
and executing the robbery.
o They used deception, pretending to be forex dealers, to lure the complainant
into the crime scene.
o They were later found in possession of stolen money, confirming their
participation.
Conclusion
From the facts therefore, there is enough evidence to charge the accused of aggravated
robbery C/ Sections 266 and 267(2) of the Penal Code Act.
2. Abduction (C/S 224 and 227 of the Penal Code Act, Cap 128)
Ingredients & Supporting Evidence
1. Forcing the person to move from one place
o The suspects forced the complainant into a vehicle under false pretenses.
o He was later driven to an unknown location, proving that he was moved
against his will.
2. With the intention to secretly or wrongfully confine the victim
o The complainant was held in the vehicle, unable to leave, making it wrongful
confinement.
o The intention was to isolate him, rob him of his money, and later dispose of
him without resistance.
Conclusion
From the facts there is enough evidence to charge the accused of abduction C/Sections 224
and 227 of the Penal Code Act.
3. Assault Causing Actual Bodily Harm (C/S 219 of the Penal Code Act, Cap 128)
Ingredients & Supporting Evidence
1. The victim sustained grievous harm
o The complainant suffered injuries to his forehead and wrist when he was
pushed from the moving vehicle.
o These injuries qualify as actual bodily harm under Section 219 of PCA.
2. The harm or injury was caused unlawfully
o The injuries were not accidental but a result of the assailants’ deliberate
actions.
o The complainant was forcefully thrown out of a moving car, proving the
unlawful nature of the harm.
3. The accused caused or participated in causing the grievous harm
o The suspects, including Mbiringi Zakayo and Twaha Kamba, were present
when the complainant was assaulted.
o Their direct involvement in the attack proves their participation.
Conclusion
From the facts there is enough evidence to charge the accused with assault causing actual
bodily harm C/Section 219 of the PCA.
ISSUE 3. What is the forum, procedure and the necessary documents?
Forum.
The High court of Uganda. Article 139 of the Constitution which provides for unlimited
original Jurisdiction of the High Court.
Procedure.
Sect 161 (1) a of the Magistrates Court Act provides that a chief Magistrate has
power to try any Offence other than that whose maximum sentence is death.
Sect 2 of the Trial on Indictment Act Cap 25 Provides that the High Court exercises its
jurisdiction in trying offences however the person must have been committed to trial to the
High Court by the Chief Magistrate.
Sect 168 of the Magistrate Court Act Cap 19 provides that when a person charged with an
offence to be tried by High Court appears before the Magistrate Court and the DPP has
drafted an Indictment and a summary of the case, the Magistrate shall
Give the accused a copy of the indictment together with a summary of the case
Inquire from the accused the Language they understand
Read out the indictment and the summary of the case and explain to the accused the nature of
the accusation against him or her in a language he or she understands.
Inform the accused that they are not required to plead to the indictment at this stage.
Commit the accused person for trial by the High Court.
And transmit to the registrar of the High Court Copies of the Indictment and of the summary
of the case.
Necessary Documents.
Summary of the case
Indictment.
Indictment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL CASE NO. ___ OF 2025
(Sect. 23, 27 and 28 of the Trial and Indictment Act Cap 25.)
COURT CASE NO. ....2025
POLICE CASE NO. CRB 235/2024
DPP CASE NO.
On the.................Day of February 2025 at the Session of the High Court Holden at Kampala.
The Court is informed by the Director of Public Prosecutions that D/C KAMBA TWAHA
and D/C MBIRINGI ZAKAYO are charged with the following Offence;
STATEMENT OF OFFENCE
Count 1: Aggravated Robbery Contrary to Sections 266 and 267(2) of the PCA Cap 128
PARTICULARS OF OFFENCE:
D/C Kamba Twaha, D/C Mbiringi Zakayo, and others still at large, on the 15th day of July
2024, at Ggaba Road, Kampala District, robbed Daniel Mading Mayot of USD 45,000, and
at, before, or after the said robbery, used actual violence, causing bodily harm to the
complainant.
Count 2
STATEMENT OF OFFENCE
Abduction Contrary to Sections 224 and 227 of the Penal Code Act, Cap 128
PARTICULARS OF OFFENCE:
D/C Kamba Twaha, D/C Mbiringi Zakayo, and others still at large, on the 15th day of July
2024, at Ggaba Road, Kampala District, by deceitful means, induced Daniel Mading Mayot
to board a vehicle, took him to an unknown location, and wrongfully confined him, causing
fear for his life.
Count 3
STATEMENT OF OFFENCE
Assault Causing Actual Bodily Harm Contrary C/S 219 of the Penal Code Act, Cap
128.
PARTICULARS OF OFFENCE:
D/C Kamba Twaha, D/C Mbiringi Zakayo, and others still at large, on the 15th day of July
2024, at Mukono District, unlawfully assaulted Daniel Mading Mayot by pushing him out of
a moving vehicle, causing injuries to his forehead and wrist, thereby occasioning actual
bodily harm.
Dated this 23rd day of February 2025
..................................................
STATE ATTORNEY
FOR DIRECTORATE OF PUBLIC PROSECUTIONS
TO; D/C KAMBA TWAHA and D/C MBIRINGI ZAKAYO.
TAKE NOTICE THAT you will be tried on the above Indictment at the session of the High
Court to be Holden at Kampala on the...................Day of February 2025 at 9:00 O’clock in
the forenoon or soon thereafter.
......................................
REGISTRAR.
Summary of the case
THE REPUBLIC OF UGANDA
THE CHIEF MAGISTRATE COUR AT MAKINDYE.
CRIMINAL SESS NO.............OF 2025.
UGANDA....................................................................................... PROSECUTOR.
VERSUS
1. D/C KAMBA TWAHA
2. D/C MBIRINGI ZAKAYO
AND OTHERS STILL AT LARGE................................ACCUSED.
SUMMARY OF THE CASE.
(Sect 168 of the Magistrate Court Act Cap)
The Director of Public Prosecutions shall adduce evidence at the trial to prove the fact
that;
That on 15th July 2024, the complainant, Daniel Mading Mayot, a South Sudanese
businessman, was a guest at Grand Royal Park Hotel in Muyenga, Kampala. He had in his
possession USD 45,000, obtained from the sale of a bus to Zwilling Bus Services, intending
to exchange it for Ugandan shillings to purchase an apartment.
That at approximately 19:00 hours, he sought directions to a forex bureau from the hotel
manager, who advised him to check along Ggaba Road. While at Metropole Bank, he
inquired from a police officer about available forex bureaus. The officer made a phone call
and later led him through a corridor, where a vehicle with registration UPA 4678 arrived. The
complainant was ushered into the vehicle by a supposed forex broker.
That inside the vehicle, another suspect was seated, wearing dark glasses and holding an
object wrapped in cloth. The complainant was driven around for approximately two hours
before being coerced into handing over his USD 45,000. When he hesitated to exit the
vehicle, the suspect in dark glasses brandished a broken beer bottle menacingly and forcefully
pushed him out, causing injuries to his forehead and wrist. The vehicle sped off, leaving him
stranded in Mukono.
That Subsequent police investigations revealed that the two police officers deployed at
Metropole Bank and Islamic Business Bank, D/C Kamba Twaha and D/C Mbiringi Zakayo,
facilitated the crime. Witness testimonies confirmed their involvement. Further investigations
led to their arrest in Kanungu and Mayuge Districts, where USD 3,000 and USD 4,000 were
recovered from their possession. They failed to account for the money.
That Zakayo, in his charge and caution statement, admitted that the robbery occurred but
claimed he was only given an “appreciation” for his role. Twaha denied involvement but
could not explain his unauthorized absence from duty.
The Prosecution shall among others tender and rely on the following documentary exhibits.
1.Finger Prints.
2.Medical examination of persons accused of serious crime Police Form 24.
3. Phone Print outs.
Dated at Kampala this 24th of February 2025.
…………………………………………………
(RESIDENT STATE ATTORNEY)
GROUP 2
GROUP 3
ISSUE 5. What is the process of conducting a trial within a trial on the premise of
Mbiringi having retracted the confession?
In Amos Binuge & Ors v Uganda Cr. Appeal No.23 of 1989. Court sated that when the
admissibility of an extra Juducial statement is challenged then the objecting accused must be
given a chance to establish by evidence his grounds of objection. This is done through a trial
within atrial to decide upon the evidence of both sides whether the confession should be
admitted.
COURT SESSION: TRIAL WITHIN A TRIAL
Presiding Judge: This court will now conduct a trial within a trial to determine the
admissibility of the confession allegedly made by the accused, Mbiringi Zakayo, to ASP
Cuthbert Magemu. The defense contends that the confession was not made voluntarily. The
prosecution, you may proceed.
Examination-in-Chief by the State Attorney.
May it Please this Honourable Court, I am Counsel......................appearing for the state, My
Lord we already to lead evidence of the officer that recorded the charge and caution
statement.
JUDGE; Please Proceed.
Officer takes stand and makes oath.
EXAMINATION-IN-CHIEF OF POLICE OFFICER (D/ASP CUTHBERT MAGEMU)
State Attorney: Please introduce yourself to this Honorable Court.
Witness (D/ASP Cuthbert Magemu): My name is Detective Assistant Superintendent of
Police Cuthbert Magemu. I am a police officer attached to Kabalagala Police Station.
State Attorney: What is your current role at Kabalagala Police Station?
Witness: I am an investigating officer, responsible for recording statements from suspects
and witnesses, as well as gathering evidence in criminal investigations.
State Attorney: On the 1st of December 2024, did you record a charge and caution
statement from a suspect in CRB 235/2024?
Witness: Yes, I did.
State Attorney: Who was the suspect?
Witness: The suspect was D/C No. 45555765 Mbiringi Zakayo, a police officer residing at
Kireka Police Barracks, Wakiso District.
State Attorney: Can you confirm where the statement was recorded?
Witness: The statement was recorded at Kabalagala Police Station.
State Attorney: Before recording the suspect’s statement, what procedure did you follow?
Witness: I first introduced myself and informed the suspect about the allegations against him.
I then cautioned him that anything he said would be written down and could be used as
evidence in court against him.
State Attorney: Did the suspect acknowledge and understand the caution?
Witness: Yes, he did. He stated that he wished to make a statement, and he signed to confirm
this.
State Attorney: What did the suspect say in his statement?
Witness: The suspect admitted that he was stationed at Metropole Bank and that he knew
about the crime. He stated that he was later informed that the crime was "successful" and that
he received an appreciation, though he denied direct involvement in taking the money from
the complainant.
State Attorney: Did he express willingness to assist the prosecution?
Witness: Yes, he stated that he would help the prosecution in whatever way.
State Attorney: Did the suspect sign the statement after it was recorded?
Witness: Yes, after the statement was read back to him and he confirmed that it was true and
correct, he signed it in my presence.
State Attorney: Did you also sign the statement?
Witness: Yes, I did.
State Attorney: My Lord, I have no further questions.
CROSS-EXAMINATION BY DEFENCE COUNSEL
May it Please this Honourable Court, I am Counsel......................for the defence, My Lord we
already to cross examine the officer that recorded the charge and caution statement.
JUDGE; Please Proceed.
Defence Counsel: Mr. Magemu, you stated that you recorded this charge and caution
statement on the 1st of December 2024, correct?
Witness: Yes, that is correct.
Defence Counsel: Was the suspect, Mr. Mbiringi Zakayo, under arrest at the time of
recording this statement?
Witness: Yes, he was.
Defence Counsel: For how long had he been in police custody before making this statement?
Witness: I would need to check the custody records, but he had been in custody for some
hours before the statement was taken.
Defence Counsel: Can you confirm whether the suspect had access to legal representation
before making this statement?
Witness: No, he did not have a lawyer present at the time.
Defence Counsel: So, just to be clear, the suspect was in police custody, did not have a
lawyer, and you proceeded to record his statement?
Witness: Yes, he voluntarily chose to give a statement.
Defence Counsel: Did you inform him of his right to remain silent and to have a lawyer
present?
Witness: Yes, I did.
Defence Counsel: Is there any written proof that he waived his right to a lawyer before
making this statement?
Witness: There is no separate waiver form, but he signed the charge and caution statement
acknowledging that he understood his rights.
Defence Counsel: In the suspect’s statement, he says, “I think it was the work of the devil”.
Did you ask him to clarify what he meant by that?
Witness: No, I did not.
Defence Counsel: The suspect also stated, “I was just later told that it was successful and I
was given an appreciation.” Did you ask him to specify who informed him or who gave him
this "appreciation"?
Witness: No, he did not mention names, and I did not press him further.
Defence Counsel: So you did not attempt to verify this part of his statement?
Witness: No, I recorded it as he stated it.
Defence Counsel: Do you have any independent evidence linking the suspect to receiving
any money from this alleged crime?
Witness: Investigations revealed that he went into hiding after the incident, which raised
suspicions, but there is no direct evidence showing him receiving money.
Defence Counsel: When a suspect "goes into hiding," could there be other reasons for doing
so apart from guilt?
Witness: It is possible.
Defence Counsel: One last question. Given that the suspect did not directly confess to
stealing the money and only mentioned being told about the crime, would you agree that this
statement alone does not prove his participation in the alleged robbery?
Witness: His statement suggests involvement, but by itself, it may not be conclusive proof.
Defence Counsel: No further questions, My Lord.
GROUP 4
Task 4
Defence Submissions in a Trial within a Trial
A Trial within a Trial is a procedure in a Criminal Trial where Court ascertains whether a
Confession was voluntarily made. A Confession is provided for under Section 23 of The
Evidence Act Cap 8 and it is where a Suspect admits the charges against him or her. A
Confession is recorded by a Magistrate or a Police Officer of the rank of AIP or above.
My Lord the procedure for recording a Confession was laid out in Festo Androa Asenua v
Uganda Criminal Appeal No. 1 of 1998 and the recording Officer must comply otherwise
the Trial will be susbstancially affected. In Tuwamoi v Uganda CACA 148/ 1966, it was
held that a Trial Court should accept with caution a Confession a Confession which has been
retracted and must be fully satisfied that the Confession is true. In the same case also, the
Appeal was allowed on grounds that the accused was assaulted while making the
Confession. This was against the Principle of Voluntariness laid out in the Festo Ansenua case
hence setting aside the sentence.
My Lord in the instant case, the Medical report shows that the accused has a scar on the back,
a sign of assault. This violates the procedure for making a Confession and I invite this
Honorable Court to find the Confession unreliable to convict the accused.
My Lord , the procedure in the Festo Androa Ansenua case shows that the recording Officer
must tell the accused the charge against him such that the accused person knows what he is
admitting and also to comply with the right to a Fair hearing under Article 28 of the
Constitution of Uganda. The Confession doesn’t show whether the accused was told the
charge preferred against him hence infringing on his right to a Fair hearing.
In the premises My Lord, I pray that the Accused is acquitted because the Confession didn’t
follow the procedure.
I submit.
Dated at Kampala this 23rd day of February 2025
………………………….
COUNSEL FOR THE ACCUSED
ETHICAL ISSUES
