5 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL APPEAL NO.069 OF 2022

ARISING FROM CHIEF MAGISTRATES COURT OF NAKASEKE AT

NAKASEKE CRIMINAL CASE NO.044 OF 2021 AND 046 OF 2021

10 SERUGO ANDREW----------------------------------------APPEALLANT

VERSUS

UGANDA----------------------------------RESPONDENT

BEFORE HON: JUSTICE ISAAC MUWATA

JUDGEMENT

15 This is an appeal against conviction and sentence, in which the appellant

was charged and convicted by the learned Chief Magistrate of Luwero for
the offence causing malicious damage to property contrary section 335 of
the Penal Code Act. He was sentenced to six months in prison, a million
shilling fine, and an order to compensate a one Male Richard, the
20 complainant, for shs. 71,000,000/=. (Seventy-one million shillings)

He appealed on the following grounds;

1. That the learned Chief Magistrate erred in law and in fact when
he convicted the appellant of the offence of malicious damage
to property when the said offence was never proved beyond
25 reasonable doubt

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 2. That the learned Chief Magistrate erred in law and in fact when
he imposed illegal sentences by way of imprisonment and fines
upon the appellant

He prayed for the appeal to be allowed and that he be released forthwith.

30 At the hearing, the appellant was represented by Counsel Kawanga

George, while the respondent was represented by Ms. Macbeth
Agumanaitwe. The parties agreed to prepare written submissions, which I
have reviewed.

Consideration

35 The duty of this court as the first appellate court cannot be

overemphasized. In the case of Kifamunte Henry V Uganda, S.C criminal
Appeal No. 10 of 1997 where court held that;

“The first appellate court has a duty to review the evidence of the
case, to reconsider the materials before the trial judge and make up
40 its own mind not disregarding the judgment appealed from but
carefully weighing and considering it.”

Section 335 of the Penal Code Act with which the appellant was charged
provides that;

Any person who willfully and unlawfully destroys or damages any

45 property commits an offence and is liable, if no other punishment is
provided, to imprisonment for five years

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 According to the preceding section, anybody who knowingly and
unlawfully destroys or damages another person's property commits the
offence of malicious damage to property.

50 To convict, the court must first be convinced that some property was
destroyed; second, that a person destroyed the property; third, that the
destruction was purposeful, and therefore proof of intent is required; and
fourth, that the destruction was unlawful. See: Simon Kiama Ndiagui vs.
Republic (2017) eKLR.

55 In this case, the prosecution had the burden of proving that the
complainants owned physical property.

PW1, the complainant, informed the court that he purchased the land
from Lumu Patrick and Serunkuma Timothy. The land was 50 acres in size
and was acquired for Shs. 180,000,000/=. He also stated in court that he
60 had the agreement and the certificate of title as proof of ownership.

The documents were tendered in and admitted without objection from

the appellant and were accepted by the court. The complainant
subsequently took custody of the property and began cultivating on it.
PW1 said in court that he began cultivating bananas and coffee on a
65 portion of the 50 acres he bought.

Ziwa James PW2, testified in court that he knew the accused and that he
had information from a man named Simbwa Abbas that the accused was
burning Mr. Male's crops. According to his testimony, he raced to the area
where the banana and coffee crops were allegedly being burned and

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70 spotted the appellant burning the crops. According to his evidence, the
burnt acreage was around 3 to 4 acres.

DW1 further informed the court that the complainant had an interest in
the properties in issue, specifically the titled property and the crops
cultivated on it. DW2 also told the court that the complainant was the
75 owner of the destroyed crops.

In his defense, the accused stated that the complainant farmed his crops
on land belonging to DW3 a one Nakiboneka Justine measuring 26 acres,
and so a claim of ownership to the land in dispute was obvious and should
have been accessible to him. DW3 presented evidence that the contested
80 crops were cultivated on her kibanja farm, where she was faithfully paying
Busulu to her brother Lumu Patrick.

I have subjected the evidence on record to fresh scrutiny. I find that the
evidence establishing the fact that the complainants owned the land and
the crops thereto was proved beyond reasonable doubt

85 The second ingredient required proof that whoever destroyed that

property, did so willfully and unlawfully. “Willfully” within the context of
section 335 (1) of Penal Code Act means “intentionally as opposed to
accidentally, that is, by an exercise of [one’s] free will”.

It is defined as "voluntary and purposeful, but not necessarily malicious"

90 by Black's Law Dictionary. The act done does not have to be malicious in
the sense of being motivated by vengeance or hatred toward a person, or
malus animus, in the sense of the offender being driven by inappropriate

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 and indirect motivations. The prosecution is not required to prove malice
in the sense of an improper motive. All that has to be proved is that a
95 wrongful act was intentionally done, without cause or excuse. Mere
knowledge that it is likely to cause loss to the owner of the property is
sufficient. See: Uganda v Gbonga & 2 Ors (Criminal Appeal 5 of 2015)
[2017] UGHCCRD 101

In this instance, the prosecution had to establish that the destruction was
100 purposeful and willful. The culprit’s motive and will can be demonstrated
by the fact that he was aware that property damage would be a likely
result of his unlawful conduct, yet nonetheless carried it out regardless of
the repercussions.

PW2's evidence in this respect is critical; he informed the court that he

105 discovered the accused burning the complainant's crops, and he also
testified that the fields had been doused with a harmful chemical. PW4 the
investigating officer’s evidence also suggested that these crops had been
doused with a hazardous chemical and were withering.

PW5, the Agricultural officer, testified that the crops had been harmed by
110 a harmful chemical and were dying off. The findings were presented in
court without objection from the appellant.

In this case there was ample evidence that the complainant’s crops were
destroyed and the person who destroyed them was the appellant. He went
there knowing that the complainant had purchased that land and had
115 cultivated his crops on it. His action was clearly unlawful. He took the law
into his hands instead of following the lawfully laid down process of
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 resolving disputes. His contention that he was unaware of the land
belonged to the complainant cannot be believed. He ought to have known
that his actions could lead to destruction of the crops. If he took his action
120 without caring whether or not damage was to be caused, he must have
indeed to have willfully set out to damage the crops.

The last ingredient that was required to be proved is that appellant

participated in committing the offence.

In Wamunga v. Republic (1989) KLR 424 it was held that,

125 It is trite law that where the only evidence against an accused is
evidence of identification or recognition, a trial court is enjoined to
examine such evidence carefully and to be satisfied that the
circumstances of identification were favorable and free from the
possibility of error before it can safely make it the basis of a
130 conviction.

PW2 testified before the trial court that he witnessed the appellant burn
the crops, it was also the evidence of PW3 to the trial court that he saw
Serugo, the appellant, set fire on the grass, which fire afterwards burnt
down the coffee and banana gardens. PW2 and PW3 were likewise
135 acquainted with the appellant, they knew him and had interacted with him.
It is also clear from the evidence and the appellant's earlier behavior
during a meeting with PW3 and the accused wherein he vowed to stop
any cultivation activities on the land in issue clearly he intended to
unlawfully destroy the complainant's crops and spite the complainant as
140 a result of the existing land dispute between them.
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 In the circumstances, I conclude that the learned Chief Magistrate properly
evaluated the evidence and I cannot fault him. He made the proper
conclusion based on the information presented.

Ground one is answered in the negative

145 Ground 2

It is now settled law, following several authorities by this court and courts
above, that sentence is a matter that rests in the discretion of the trial
court. Similarly, sentence must depend on the facts of each case. On
appeal the appellate court will not easily interfere with sentence unless,
150 that sentence is manifestly excessive in the circumstances of the case, or
that the trial court overlooked some material factor or took into account
some wrong material, or acted on a wrong principle. See: Kyalimpa
Edward v Uganda SC Criminal Appeal No.10 of 1995.

Under section 335 of the Penal Code Act a person convicted for causing
155 malicious damage to property faces a maximum of five years in prison.
The trial magistrate was persuaded by the appellant's deliberate
destruction of the complainant's crops, and the sentence of six months
cannot be taken as excessive. On the contrary, it was very lenient since the
maximum sentence is a period for five years’ imprisonment.

160 The learned trial magistrate could only be faulted for adding a one million
shilling fine to the appellant's sentence. It is my considered opinion that if
imprisonment has been imposed as part of the substantive punishment,
the magistrate has no justification to include a fine as part of that

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 sentence, especially if he did provide for a default sentence on failure to
165 pay the fine.

Accordingly, the fine of one million shillings imposed on the appellant is

hereby set aside, however the term of imprisonment and the
compensation order imposed on the appellant by the lower court is
maintained.

170 I so order

Right of Appeal Explained.

JUDGE
17/11/2022

175