5 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CRIMINAL DIVISION)
CRIMINAL MISC. APPLICATION NO. 0030 OF 2025
(ARISING FROM REVISION CAUSE NO. 002 OF 2025
10 ARISING FROM BUGANDA ROAD CRIMINAL MISCELLANEOUS APPLICATION
NO. 87 OF 2024 AND CRIMINAL CASE NO. 913 OF 2024)

ISAAC KIMAZE SSEMAKADDE :::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS
15 UGANDA (PRIVATE PROSECUTION
BY BYAMAZIMA JOSHUA AND
TONNY TUMUKUNDE) :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
RULING
BY JUSTICE GADENYA PAUL WOLIMBWA
20 1.0. Introduction

Isaac Kimaze Ssemakadde, the Applicant, brought this Application under Sections 17 and 37 of
the Judicature Act, Cap. 16, for the following orders:

1. Stay the proceedings in Buganda Road Chief Magistrates Courts Criminal Case Number
913 of 2024 pending the determination of the application for revision to wit Revision
25 case number 002 of 2025
2. Grant an interim stay of proceedings in Buganda Road Chief Magistrate’s Court
Criminal Case Number 913 of 2024 pending the hearing of this Application.
3. Grant such further or other relief as the Honourable Court may deem just and equitable.

The grounds of the Application, as outlined in the Notice of Motion and its Affidavit in support,
30 are briefly:

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 1. The Applicant has filed an application for revision in the High Court, challenging the
proceedings and decisions of the lower court in Miscellaneous Application No. 087 of
2024 and Criminal Case No. 913 of 2024.
2. The application for revision is pending hearing and determination and raises serious
35 questions about the legality, propriety, correctness, and regularity of the proceedings in
the lower court.
3. If the proceedings in the lower court are allowed to continue while the application for
revision is pending, the Applicant will suffer irreparable harm and prejudice, including
but not limited to:
40 a) Being forced to undergo a trial that may be vitiated by fundamental flaws and
irregularities;
b) Being subjected to the risk of conviction and sentence on charges that may be
defective or unsustainable and
c) Being denied the opportunity to have the proceedings in the lower court
45 reviewed and corrected by the High Court.

In opposition, the respondents argue that the application serves merely as a tactic to delay,
obstruct, and undermine the criminal justice process. They contend that the current request
for a stay of proceedings is premature, misguided, and lacking in merit, given that no active
proceedings in the lower court could be subject to a stay. Therefore, they urge the court to
50 reject the Applicant's request for a stay pending revision and dismiss the application entirely.

2.0. Background to the Application

On 20th November 2024, the Respondents/ Applicants therein (Byamazima Joshua and
Tumukunde Tonny) filed Uganda (Private Prosecution by Byamazima Joshua and Tonny
Tumukunde) V Isaac Kimaze Ssemakadde, Buganda Road Chief Magistrates’ Criminal
55 Case No. 913 of 2024 under Section 42 (1) (c) and (3) of the Magistrates Courts Act Cap. 19.
The application sought for Orders that:

1. Court finds a prima facie case against Mr Isaac Kimaze Ssemakadde for the offence of
Insulting the modesty of a woman contrary to Section 115 (3) of the Penal Code Act Cap.
128.
60 2. Court sanctions the said charge against Mr. Isaac Kimaze Ssemakadde.

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 3. Court issues criminal summons against the said Mr. Isaac Kimaze Ssemakadde to appear
for plea on the sanctioned charge.

The basis for the application, as outlined in the sworn complaint and the supporting affidavit,
was briefly that:

65 1. The complaint against the accused person is for indecent assault against the person of the
Hon. Lady Justice Jane Frances Abodo, The Director of Public Prosecutions, under
Section 115 (3) of the Penal Code Act, Cap. 128.
2. On the 18th day of November 2024, while addressing the members of the People’s
Freedom Front (PFF) Party at a “symposium on the state of the Rule of Law,
70 Constitutionalism & Human Rights: The Kisumu 36 Tales” held at Katonga Road in
Kampala Central, Kampala District, the intended accused allegedly Uttered the following
words, “that all these things like your particular kaffir form is then given legal dressing
by this vagina from Karamoja… I have made a case before that we have a pumpkin for a
DPP, but some lawyers continue to pretend she is actually the DPP…. She is dead
75 wood…”.
3. The said alleged utterances were made by the accused person in full glare of the media
that was covering and broadcasting the symposium.
4. The said alleged utterances were intended to insult the modesty of a woman and intrude
on the privacy of the person of Her Lordship Jane Frances Abodo, the Director of Public
80 Prosecutions.
5. The alleged utterances by the intended accused person have widely been circulated on
social media and are now a matter of public knowledge and the accused person should be
criminally held liable for his alleged utterances.
6. At the time of filing this complaint, they had no knowledge that the responsible state
85 institutions have taken any action against the intended accused person.
7. They are aware that the law mandates them as private citizens to commence private
criminal prosecutions against any person who has committed any criminal offence under
the Laws of Uganda.

On 3rd December 2024, the Applicant filed Isaac Kimaze Ssemakadde V Uganda (Private
90 Prosecution by Byamazima Joshua and Tonny Tumukunde, Buganda Road Chief

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 Magistrates’ Criminal Misc. Application No. 87 of 2024. In this Application, the Applicant
sought an Order dismissing the Complaint jointly submitted under oath by Byamazima Joshua
and Tonny Tumukunde, citing the following reasons:

1. That the complaint on oath and supporting affidavit do not, prima facie, disclose
95 commission of the proposed offence.
2. That the proposed offence is manifestly victim-centered and the intending prosecutors,
Byamazima Joshua and Tonny Tumukunde, have unjustifiably not engaged the alleged
victim.
3. That in the absence of the testimony of the alleged victim, Ms. Jane Frances Abodo of
100 Karamoja, there is manifestly no reasonable and probable cause to believe that the
proposed offence was committed.

On January 17, 2025, HW Ronald Kayizi of Buganda Road Chief Magistrates Court issued two
Rulings. One in Isaac Kimaze Ssemakadde V Uganda (Private Prosecution by Byamazima
Joshua and Tonny Tumukunde, Buganda Road Chief Magistrates’ Criminal Misc.
105 Application No. 87 of 2024. The other is in Uganda (Private Prosecution by Byamazima
Joshua and Tonny Tumukunde) V Isaac Kimaze Ssemakadde, Buganda Road Chief
Magistrates’ Criminal Case No. 913 of 2024.

In Criminal Misc. Application No. 87 of 2024, he found that Byamazima Joshua did not refute
the complaint in his affidavit, and the respondents did not breach their duty of candour. He also
110 found that the evidence presented supports a prima facie case against the applicant, and the court
has the jurisdiction to hear and decide the matter. There being no succeeding ground for
dismissing the complaint, the application failed and was accordingly dismissed.

In Criminal Case No. 913 of 2024, he determined that sufficient evidence had been presented
against Ssemakadde for the offence of insulting the modesty of a woman in violation of section
115 115 (3) of the Penal Code Act. Consequently, a formal charge was prepared, and Criminal
Summons were issued for Ssemakadde, requiring him to appear in court on January 29, 2025, for
the purpose of entering a plea.

These decisions prompted the Applicant to file Isaac Kimaze Ssemakadde v. Uganda (Private
Prosecution by Byamazima Joshua and Tonny Tumukunde), Criminal Revision Case No.

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120 002 of 2025, and subsequently Isaac Kimaze Ssemakadde v. Uganda (Private Prosecution
by Byamazima Joshua and Tonny Tumukunde), Criminal Misc. Application No. 0030 of
2025 (this Application).

In Isaac Kimaze Ssemakadde V Uganda (Private Prosecution by Byamazima Joshua and

Tonny Tumukunde), Criminal Revision Case No. 002 of 2025, the Applicant herein petitioned
125 the court to:

1. Call for and examine the lower court record in Miscellaneous Application No. 87 of 2024
and Criminal Case No. 913 of 2024.
2. Reverse or set aside the rulings, decisions, findings, and orders of the lower court made
on 17th January 2025.
130 3. Alternatively, stay the intended Private Prosecution as an abuse of the Court Process and
thus discharge the Applicant.

Some of the several reasons supporting his request include the following:

1. The Chief Magistrate acted illegally and without jurisdiction by entertaining the
Respondents' complaint, drawing up a charge, and issuing summons, thereby occasioning
135 a miscarriage of justice.
2. He erred in holding that a prima facie case was established against the Applicant under
section 115 (3) of the Penal Code Act, Cap. 128.
3. He failed to consider the context, symbolism, and constitutional protections of the words
in question, thereby occasioning a miscarriage of justice.
140 4. He secretly consulted a purported "Parish Chief/Ward Administrator" whose findings did
not confirm the Respondents' complaint and improperly relied on this consultation.

In this Applicant sought to stay Criminal Proceedings in Uganda (Private Prosecution by

Byamazima Joshua and Tonny Tumukunde) v Isaac Kimaze Ssemakadde, Criminal Case
No. 913 of 2024, pending the determination of Isaac Kimaze Ssemakadde v Uganda (Private
145 Prosecution by Byamazima Joshua and Tonny Tumukunde), High Court Criminal
Revision Case No. 002 of 2025 (the revision).

3.0. Representation

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 GEM Advocates represent the Applicant, whereas the Respondents are self-represented.

150

4.0. Arguments of the Parties

4.0.1. The Applicant’s Submissions

The Court finds it appropriate to arrange the Applicant's Arguments under three separate
headings for better clarity.

155 1. The Statutory Power to Stay Criminal Proceedings at the Chief Magistrates Court

Counsel for the Applicant argued that the court could stay criminal proceedings at the Chief
Magistrates Court at Buganda Road based on sections 17 and 37 of the Judicature Act. He
contended that, under these sections, the High Court has supervisory authority over magistrates’
courts and can provide interim relief, such as staying proceedings, to prevent multiple legal
160 actions regarding the matter under revision.

He further submitted that Section 220 (3) of the Magistrates Courts Act directs the Chief
Magistrate to halt the proceedings of any lower court whenever an application for revision is
filed. However, this section is inapplicable to this case, as the Chief Magistrate was not
exercising his supervisory powers over junior Magistrates, where he would have moved the file
165 to the High Court.

Third and last, under this limb, Counsel also submitted that section 11(2) of the Magistrates
Courts Act prohibits multiple proceedings concerning the same matters.

2. The Common Law Principles Governing Stay of Criminal Proceedings

Within this context, the Applicant cited several cases.

170 First, he cited the case of Davis Wesley Tusingwire v Attorney General Constitutional
Application Number 6 of 2013, in which the Constitutional Court stayed all the criminal
proceedings in the Anti-Corruption pending the resolution of the Constitutional Petition that
challenged the Practice Direction establishing the Division. He submitted that on page 22, lines
5 to 20, the Constitutional Court held that:

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175 “It is settled law that for an application for an injunction or stay of proceedings, whether interim
or not, to succeed, the applicant has to show that:

He/she has a prima face case in the constitutional petition, which is neither frivolous nor
vexatious and that the matters raised therein are likely to succeed.

Failure by the court to grant the injunction or order of stay sought will cause irreparable
180 damage that cannot be compensated for by an award of damages.

If the court doubts the above two requirements or any of them, it will determine the application
based on a balance of convenience.”

Next, he cited the case of Ananias Tumukunde v Attorney General Constitutional

Application Number 3 of 2009, in which the court, having laid down the same principles
185 governing injunctive orders, including a stay of proceedings as in Davis Wesley Tusingwire
(supra), held that, “constitutionally guaranteed rights must always be jealously guarded by the
courts of law in this country and that the injunction sought should be granted on this principle
alone.”

Then, he cited the case of Hwan Sung Industries Ltd v Tajdin Hussein and Others Civil
190 Application Number 19 of 2008, in which the court observed that “an application for an
interim order of stay suffices to show that a substantive application is pending and that there is a
serious threat of execution before the hearing of the pending substantive application.”

Furthermore, he cited the case of Caleb Alaka v Vincent Jjako Akawuwo Kigozi HCMA 611
of 2012, in which the court, following the same principles as in the cases above, stayed the
195 execution of the law council decision suspending the Applicant from legal practice.

Lastly, he cited the case of Kintu Nteza Felix v Uganda Criminal Application No. 10 of 2023,
in which Justice Muwata observed that “before a court stays a case, the applicant must show a
real risk of serious prejudice and that this prejudice may lead to injustice.”

3. Why Criminal Proceedings Against the Applicant Should Be Stayed

200 First, the Applicant submitted that High Court Revision Application No. 002 of 2025, which he
filed seeking for examination of the record of Criminal Case Number 913 of 2024 and
Criminal MA No. 087 of 2024, raises fundamental issues that merit the High Court’s

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 consideration. So, by virtue of the grounds raised in the Revision Application, the Applicant
argues that he has established a prima facie case against which the court should stay the
205 proceedings at Buganda Road Court.

Secondly, the Applicant argued that he would experience irreparable harm if the Chief
Magistrates Court proceedings were not halted. He noted that the lower court issued a criminal
summons and was set to issue an arrest warrant on February 24, 2025, compelling the Applicant
to face trial despite significant flaws and irregularities. He claimed that the Chief Magistrate
210 acted without jurisdiction in drawing charges and issuing the criminal summons in Criminal
Case Number 913 of 2024. The Applicant warned that if the proceedings continued, he would
face adverse publicity damaging his reputation, profession, and livelihood, with the threat of
arrest, detention, conviction, and sentencing based on a contestable and flawed charge.

Lastly, the Applicant argued that the balance of convenience is in his favour. He noted that if the
215 revision application is rejected, the lower court can proceed with the prosecution without
affecting the prosecutor. Conversely, if the stay is denied and the Applicant ultimately prevails,
he would face significant inconvenience, and the Respondent would likely be unable to pay any
awarded damages.

In conclusion, the Applicant asked the court to issue an interim order staying proceedings of
220 Buganda Road Criminal Case No. 913 of 2024 pending the determination of Revision
Application No. 0030 of 2025.

4.0.2. The Respondents’ Submissions

The Court will organise the Respondents' Arguments into three distinct subheadings for clarity,
similar to how it organised those of the Applicants.

225 1. The Preliminary Objection

In his opening statement, Counsel raised a Preliminary Objection. He argued that the Application
was premature and incompetent because criminal proceedings against the Applicant had not
commenced. He further contended that in criminal law, proceedings begin upon the taking of a
plea. In this case, the Applicant has not submitted to the court's jurisdiction by responding to the
230 summons and entering a plea. Therefore, there are no criminal proceedings to stay.

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 Alternatively, he asserted that the law does not permit an accused person to disregard court
summonses, fail to enter a plea, and then seek to halt the proceedings. To support his argument,
he relied on Mpuuma K Leornard v. Uganda HCMA No. 325 of 2006, where the court held
that “it could not entertain an application for bail to an accused person who had not submitted to
235 the trial court’s jurisdiction.”

Additionally, Counsel submitted that the Applicant could not rely on the case of Joo v. Republic
Criminal Appeal Number E009 of 2020 because that decision only applies where the applicant
is in court and has subjected himself to the court's jurisdiction. In Joo v. Republic (Supra),
Judge Wendoh held that:

240 “A court should, therefore, not be in a hurry to take a plea before ascertaining that it has fully
complied with Article 50(2)(g) of the Constitution, among others, as required. Circumstances
calling, a court should boldly postpone the plea taking until satisfied that the court has complied
with the law.”

Lastly, Counsel argued that while an advocate may represent an applicant, it is essential for the
245 accused to personally enter a plea, indicating that the applicant must physically submit to the
court's jurisdiction before seeking its assistance.

In conclusion, Counsel asked the Court to strike out the application for being incompetent.

2. The Law on Stay of Criminal Proceedings and the Distinguishing Factors

Counsel argued that the court can grant interlocutory relief, including staying proceedings, under
250 sections 17 and 37 of the Judicature Act to prevent multiple legal actions.

In response to the Applicant's claim that Section 220 (3) of the Magistrates Courts Act requires
the Chief Magistrate to stop lower court proceedings upon filing of a revision application, he
argued that this section is not applicable in the current case, as the Chief Magistrate's authority to
do so, only extends to inferior courts.

255 Counsel argued that the cases referenced by the Applicant do not justify a stay of proceedings
and instead suggest that courts should be cautious about staying in criminal cases. To support his
argument, he cited the case of Goddy Mwakio and Another vs Republic (2011), the Court of

9
 Appeal of Kenya, which Justice Rossette Comfort Kania cited in Ssali Vicent vs. Uganda
HCMA 035 of 2022. She said:

260 “An order of stay of proceedings, particularly a stay of criminal proceedings, is made sparingly
and only in exceptional circumstances. (See Halsbury’s Laws of England, 4 th edition Re-issue
page 290, paragraph 926. The order is not given as a matter of course.”

He then cited the case of Kintu Nteza Felix v. Uganda HCCMA 035/2022, where Justice
Muwata held that “For the court to exercise this power, the applicant must show that there is a
265 real risk of serious prejudice and that the prejudice may lead to an injustice.”

Furthermore, Counsel submitted that the cases cited by the Applicant are distinguishable.

He stated that the case of Ananias Tumukunde does not apply to this matter because the stay of
the proceedings was granted based on an alleged violation of human rights, which the applicant
has not mentioned in his application. He further stated that the Hwan Sung Industries Ltd v.
270 Tajdin case was irrelevant to this situation as there is no imminent pending execution that would
render the revision pointless.

Additionally, he noted that the case of Caleb Alak v. Vicent Akawuwo Kigozi HCMA 611 of
2012 is not applicable because the stay was granted due to an imminent execution of the Law
Council decision suspending the applicant from practice. Since the criminal proceedings have
275 not commenced, no action against the applicant would cause harm.

He argued that in the case of Kintu Nteza, the stay was granted because there was a civil and
criminal matter involving the same issue, necessitating one to be stayed to avoid a multiplicity of
cases. Lastly, the stay was granted in the case of Davis Wesley Tusingwire v. Attorney
General Constitutional Application No. 6 of 2013 because continuing proceedings in a
280 potentially unconstitutional forum could cause irreparable harm.

3. Merits of the Application

The Respondent argued that the Applicant has failed to establish a prima facie case for a stay. He
contended that the Applicant did not provide adequate evidence to support their claims, which
must demonstrate serious triable issues rather than mere allegations. The Respondent asserted

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285 that a prima facie case requires substantive evidence to prove that the Chief Magistrate made an
error in permitting criminal proceedings against the Applicant.

He maintained that the Chief Magistrate acted within the legal framework of sections 43(3) to (7)
of the Magistrates Courts Act by considering the Respondent’s claim under oath, and there is no
indication of illegality or miscarriage of justice. Furthermore, he noted that the Chief Magistrate
290 adhered to guidance from the High Court in Uganda regarding private prosecutions, explicitly
referencing the case of Male Mabirizi Kiwanuka vs Hon Mao Norbert & Others, Criminal
Appeal No. 8 of 2023.

Secondly, counsel submitted that dissatisfaction with the magistrates’ decisions on evidential
matters and procedural issues does not violate due process or judicial misconduct, which can be
295 addressed at the trial. The Chief Magistrate lawfully admitted the Respondent’s evidence and
found their complaint on oath neither frivolous nor vexatious. Furthermore, counsel submitted
that the Applicant had not demonstrated that the proceedings constituted an abuse of court
process. He asked the court to dismiss the application for a stay of proceedings if there is no
clear prima facie case.

300 Counsel argued that the Applicant must prove claims of irreparable harm if a stay of criminal
proceedings is not granted, which he has failed to do. He referenced Black’s Law Dictionary, 9th
edition, page 447, stating that irreparable harm is defined qualitatively, meaning that if harm can
be quantified or compensated financially, it does not meet the irreparability standard. He noted
that while a criminal prosecution can harm an individual's reputation, this does not warrant a
305 stay, especially when a prima facie case exists based on a sworn complaint, and reputational
damage is a foreseeable outcome. The applicant can pursue a claim for malicious prosecution
and seek damages if he prevails in the criminal trial.

Counsel argued that the balance of convenience does not support the applicant’s request for a
stay of execution. The Respondents claimed that granting a stay would significantly disrupt their
310 legal rights and the judicial process. They would face harm by being obstructed in pursuing legal
remedies, which could have broader consequences for justice and the rights of the accused.
Counsel further argued that while the Applicant may seek damages, the Respondents, on the
other hand, if they are impeded, might not be able to recover adequate damages to compensate
for their total loss.

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315 4.0.3. Rejoinder by the Applicant

The Applicant submitted that the Respondent is incorrect in asserting that there are no criminal
proceedings because the Applicant has not taken a plea. Criminal proceedings in a private
prosecution begin when a private individual files a complaint before the Magistrate and is
examined under Oath in accordance with section 42 of the Magistrates' Courts Act.

320 He submitted that the revision application was valid because it concerns quashing the lower
court's decision that permitted the Respondent to proceed with the private prosecution. The
Applicants argue that the prosecution is unlawful and infringes upon the Applicant’s
fundamental rights. The Applicant cannot await the plea to contest the legality of the proceedings
against him.

325 He referred the court to the cases of Rutayisire Alphonse and Another v URA HCMC 236 of
2020 and Ojangole Patricia and Others vs. AG HCMC 303 of 2013. In Rutayisire Alphonse
(Supra), the court quashed the respondents’ decision to charge and prosecute the Applicants. In
Ojangole Patricia (Supra), the court noted that “no one can prosecute others, as they will
defend themselves during the trial. “The Applicant argued that in all these rulings, the courts did
330 not require the applicant to enter a plea before submitting to the court's jurisdiction. Because of
this, he prayed for the preliminary objection to be overruled.

On the issue of a prima facie case, the Applicant submitted that he had established a prima facie
case arising out of a possible violation of his constitutional rights and freedoms as the charges
against him were brought in bad faith and an abuse of judicial process. He referred to the case of
335 Kalule Ahmed Mukasa vs NSSF HCMA No. 174 of 2022- where Justice Ssekana, as he then
was, observed that “a prima facie case should not be confused with a case proved to the hilt.” He
added: “At this stage, it is not part of the court’s function to try and resolve the conflict neither of
evidence nor to decide complicated questions of fact and law, which call for detailed arguments
and mature considerations. After a prima facie case is made out, the court will consider other
340 factors.”

The Applicant asserted that an applicant is entitled to a stay of proceedings as soon as their rights
are violated. The Applicant’s rights are about to be violated. A warrant of arrest was issued and

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 is due for execution. The court must inquire into this, as the applicant stands to suffer if the stay
is not granted.

345 On the issue of suffering irreparable harm, it was argued that the Applicant would suffer
irreparable harm if the proceedings were not halted because the private prosecution against him
constituted an abuse of the legal process.

The Applicant stated that filing charges against someone carries significant consequences and
must follow legal procedures without discrimination. He argued that the Applicant did not adhere
350 to the law and that their fundamental right to personal freedom would be jeopardised if the case
continued. He claimed he should not face an unlawfully issued summons, as any harm caused
would be irreparable if the proceedings were invalid. See President of the Republic of South
Africa vs Zuma and Others (062027/2022{2023} ZAGPJHC 11, 2023).

Counsel submitted that the balance of convenience favours the Applicant because failure to stay
355 proceedings at Buganda Road Court would subject him to undue prejudice and potential
miscarriage of justice, unlike the Respondent, who would not be affected.

5.0. Issues for Resolution

1. Whether this Application for stay of proceedings is premature, misconceived, and
incompetent?
360 2. Whether Criminal Case No. 913 of 2024 should be stayed pending the determination of
Revision Case No. 002 of 2025?
6.0. Resolution of the Issues
6.0.1. The Law Applicable

Section 37 of the Judicature Act Cap. 16 provides that:

365 “The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act
or any written law, grant absolutely or on such terms and conditions as it thinks just, all such
remedies as any of the parties to a cause or matter is entitled to in respect of any legal or
equitable claim properly brought before it so that, as far as possible, all matters in controversy
between the parties may be completely and finally determined and all multiplicities of legal
370 proceedings concerning any of those matters avoided.”

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 This provision ensures that the judicial process is equitable and efficient. It effectively resolves
disputes comprehensively, minimising the likelihood of ongoing litigation and ensuring that
justice is administered holistically.

In Davis Wesley Tusingwire v. Attorney General Constitutional Application No.06 of 2013,

375 the Constitutional Court held that:

“…that for an application for an injunction or order of stay of proceedings, whether interim or
not, to succeed, the applicant has to show that:

1. He/she has a prima-facie case in the constitutional petition, that the petition is neither
frivolous nor vexatious and that the matters raised therein have a probability of success.
380 2. Failure by court to grant the injunction or order of stay sought will cause irreparable
damage that cannot be compensated for by an award of damages.
3. If court is in doubt on both of the above two requirements or any of them, the court will
determine the application on a balance of conveniences.”

The court's holding outlines the criteria an applicant must satisfy to successfully obtain an
385 injunction or an order to stay proceedings, whether on a temporary (interim) or permanent basis.

Firstly, the applicant must demonstrate that they have a prima facie case and that their
constitutional petition contains a valid legal case or argument. Ordinarily, this means that the
petition should not be frivolous or vexatious (i.e., lacking merit or intended to harass), and it
should raise legitimate issues with a reasonable chance of success if brought to a full hearing.

390 Secondly, the applicant must show that failing to grant the injunction or stay would result in
harm that monetary damages cannot adequately remedy. This emphasises that the potential harm
is serious and significant enough that compensating the applicant later would not suffice.

Thirdly, suppose the court is uncertain about the first two requirements (the strength of the prima
facie case and the risk of irreparable harm). In that case, it will assess the situation based on
395 which side would suffer more harm if the injunction or stay is granted versus denied. This is
known as the "balance of conveniences." The court will weigh the potential impacts on both
parties before deciding.

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 Fourthly, it must be in the interest of justice to stay the case in question. The Applicant must
demonstrate that the continued hearing of the case sought to be stayed will severely constrain
400 their rights and lead to injustice.

It should be noted that the Respondent contends that the principles established in Davis Wesley
Tusingwire supra do not justify a stay in this instance because the current case does not
question the constitutionality of a judicial entity or procedure.

The court acknowledges that while this framework was utilised in a Constitutional Petition
405 contesting the constitutionality of a judicial body, it offers valuable guidance when dealing with
applications to temporarily stay criminal proceedings while under revision to avoid them being
rendered nugatory. The principles established in applications for injunctions or stays in
constitutional petitions can be adapted to assess requests for a stay of criminal proceedings
pending revision, thereby ensuring that justice is appropriately administered based on the
410 specifics of each case. However, each application must be evaluated based on its unique facts
and merits, but the foundational principles remain the same and remain significant.

6.0.2. The Issues

Issue 1: Whether this Application for Stay of Proceedings is Premature, Misconceived, and
Incompetent.

415 In their submissions, the respondents raised a Preliminary Objection that the present application
for a stay of proceedings is immature, misconceived, and incompetent, as there are no
proceedings in the lower court capable of being stayed because proceedings in a criminal trial
only commence upon Plea Taking. They argued that the Applicant in the present case has not
yet taken a plea in Buganda Road Court Criminal Case No. 913 of 2024. He repeatedly failed to
420 comply with criminal summons on two occasions, which led to the issuance of an arrest warrant
on February 24, 2025. Consequently, no trial proceedings have commenced, and nothing before
the lower court can be stayed.

Additionally, the respondents argued that the law does not permit an accused person to disregard
court summons, fail to take a plea, and simultaneously seek to halt proceedings that have not yet
425 begun. Entertaining the application under such circumstances would amount to an abuse of court

15
 process. For these reasons, the Respondent prayed that the application be struck out as
premature, misconceived, and incompetent.

A private prosecution is a judicial process in which an individual with probable and reasonable
grounds to suspect that another individual has perpetrated a criminal offence endeavours to have
430 that individual formally charged and summoned before the court.

Section 42 (3) of the Magistrates’ Court Act provides that:

“Any person, other than a public prosecutor or a police officer, who has reasonable and
probable cause to believe that an offence has been committed by any person may make a
435 complaint of the alleged offence to a magistrate who has jurisdiction to try or inquire into the
alleged offence, or within the local limits of whose jurisdiction the accused person is alleged to
reside or be. Every such complaint may be made orally or in writing signed by the complainant,
but if made orally shall be reduced into writing by the magistrate and when so reduced shall be
signed by the complainant.”

440 According to the above section, criminal proceedings in private prosecutions are deemed to have
commenced when an individual who is not a public prosecutor or police officer submits a
complaint under oath regarding an alleged offence to a magistrate with appropriate jurisdiction.
In this case, criminal proceedings against the Applicant commenced when the Respondents filed
a complaint under oath with the Chief Magistrate. Therefore, it is incorrect for the Respondents
445 to assert that there are no proceedings in the instant case that merit consideration for revision.
This finding, thus, disposes of the preliminary objection.

Issue 2: Whether Criminal Case No. 913 of 2024 should be Stayed Pending the
Determination of Revision Case No. 002 of 2025?

The Applicant submitted that the Court should stay proceedings in Criminal Case Number 913 of
450 2024 pending revision because:

Firstly, he established a prima facie case that is neither frivolous nor vexatious, and the matters
raised therein have a probability of success.

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 Secondly, he will suffer irreparable harm and prejudice if he undergoes a trial vitiated by
fundamental flaws and irregularities, as alluded to in the Application for Revision.

455 Thirdly, the balance of convenience favours the Applicant because failing to stay the proceedings
would violate his civil liberties.

In opposition, the Respondent argued that the application for a stay should be dismissed for
being unfounded and an abuse of court process because:

Firstly, the Applicant had failed to establish a prima facie case that warrants the granting of
460 injunctive relief. The Chief Magistrate acted within jurisdiction under Section 43(3) to (7) of the
Magistrates Courts Act in entertaining the Respondents' complaint on Oath, and there is no
evidence of illegality or miscarriage of justice.

Secondly, the applicant failed to demonstrate that they will suffer any loss or injury that cannot
be compensated through monetary damages, nor have they shown that such harm is difficult to
465 quantify.

Thirdly, the balance of convenience does not favour the applicants' request for a stay in criminal
proceedings. Furthermore, the Respondents submitted that the continuation of their legal rights
and the proper functioning of the judicial process would be severely hampered by the imposition
of a stay of proceedings. Additionally, the Respondents submitted that the harm to the
470 respondents includes not only the obstruction of their right to pursue legal remedies but also the
broader implications for the integrity of the legal system and the rights of the accused. They
further argue that if the respondents were deprived of their right to continue with the prosecution,
they may be unable to recover damages sufficient to compensate for the full extent of their loss if
the inordinate stay of proceedings pending the revision application is deemed unjustified. In
475 contrast, the Applicant could file a civil claim for malicious prosecution if the revision is
successful.

Consideration of the Application

Applying the foundational principles in Davis Wesley Tusingwire v. Attorney General (supra)
to the current case, the court makes the following determination.

480 1. Whether the Applicant has established a prima facie case?

17
 The general rule is that criminal cases should only be halted in the rarest of circumstances
because the duty to fight crime is a duty that affects the whole country, and therefore, criminal
cases should be heard seamlessly unless the applicant proves that their rights to a fair trial as laid
out in Article 28 of the Constitution are under threat. To get a stay of a criminal case, the
485 applicants must demonstrate that they have exceptional reasons to justify injunctive relief.
Simply put, the Applicant must prove that they have a prima facie or an arguable revision with
reasonable chances of success that would be rendered nugatory if the stay is not granted. To
make a finding under this ground necessitates an inquiry into the grounds laid down in Revision
Case No. 2 of 2025 without getting into the case's merits to establish whether the Applicant has
490 an arguable revision. For ease of reference, the grounds of revision are reproduced below:

Ground 1: The Chief Magistrate illegally and without jurisdiction entertained the Respondents'
complaint, drew up a charge, and issued summons.

Ground 9: The Chief Magistrate Secretly consulted a purported "Parish Chief/Ward

Administrator" whose findings did not confirm the Respondents' complaint and improperly relied
495 on this consultation.

Ground 7 & 5: The Chief Magistrate erred in holding that a prima facie case was established
against the Applicant under section 115 (3) of the Penal Code Act, Cap. 128. He improperly
found that the Respondents met the reasonable and probable threshold under section 42(3) of the
Magistrates’ Court Act.

500 Ground 10 & 11: The Chief Magistrate wrongly found the Respondents’ complaint was not
vexatious and frivolous. He erred in holding that the Respondents’ complaint was not an abuse
of Court Process.

Ground 2: The Chief Magistrate improperly failed to dismiss a denied complaint on oath by the
intending private prosecutors.

505 Ground 6: The Chief Magistrate disregarded Sections 6(2)(a), 7(1), 7(2), and 7(4) of the
Electronic Transactions Act in considering the Respondents' video evidence.

Ground 8: The Chief Magistrate did not Consider the Context, symbolism, and Constitutional
Protections of the Words in question, thereby occasioning a miscarriage of justice.

18
 Ground 3: The Chief Magistrate Erred in law by denying the Applicant’s Request to Cross-
510 examine Byamazima on his Affidavit in Reply.

Ground 4: The Chief Magistrate wrongly concluded that the Respondents did not breach the
duty of candour.

Ground 12: The Chief Magistrate Improperly Declined to Recuse himself from the Proceedings.

The court will now do a systematic audit of the above grounds.

515

Ground 1: The Chief Magistrate Illegally and Without Jurisdiction Entertained the
Respondents' Complaint, drew up a Charge, and Issued Summons.

This ground raises two questions for courts determination.

The first question to ask under this ground is whether the Chief Magistrate had the power to
520 entertain the Respondents' complaint, draw a charge, and issue a summons.

Section 42 (3) to (7) of the Magistrates Court Act comprehensively sets steps to follow while
instituting private prosecutions. It provides as follows:

“(3) A person, other than a public prosecutor or a police officer, who has reasonable and
probable cause to believe that an offence has been committed by any person may make a
525 complaint of the alleged offence to a magistrate who has jurisdiction to try or inquire into the
alleged offence, or within the local limits of whose jurisdiction the accused person is alleged to
reside or be. Every such complaint may be made orally or in writing signed by the complainant,
but if made orally shall be reduced into writing by the magistrate and when so reduced shall be
signed by the complainant.

530 (4) Upon receiving a complaint under subsection (3), the magistrate shall consult the local chief
of the area in which the complaint arose and put on record the gist of that consultation; but
where the complaint is supported by a letter from the local chief, the magistrate may dispense
with the consultation and thereafter put that letter on record.

(5) After satisfying himself or herself that prima facie the commission of an offence has been
535 disclosed and that the complaint is not frivolous or vexatious, the magistrate shall draw up and

19
 shall sign a formal charge containing a statement of the offence or offences alleged to have been
committed by the accused.

(6) Where a charge has been—(a) laid under the provisions of subsection (1)(b) or (b) drawn up
under the provisions of subsection (5), the magistrate shall issue either a summons or a warrant,
540 as he or she shall deem fit, to compel the attendance of the accused person before the court over
which he or she presides, or if the offence alleged appears to be one which the magistrate is not
empowered to try or inquire into, before a competent court having jurisdiction; except that a
warrant shall not be issued in the first instance unless the charge is supported by evidence on
oath, either oral or by affidavit.

545 (7) Notwithstanding subsection (6), a magistrate receiving any charge or complaint may, if he or
she thinks fit for reasons to be recorded in writing, postpone the issuing of a summons or
warrant and may direct an investigation or further investigation, to be made by the police into
that charge or complaint; and a police officer receiving such a direction shall investigate or
further investigate the charge or complaint and report to the court issuing the direction.”

550 The preceding section highlights the procedure for initiating a private prosecution, which
consists of multiple steps in which a magistrate plays a vital role.

Firstly, any individual (excluding public prosecutors or police officers) who believes there is
reasonable cause to think an offence has been committed can lodge a complaint with a relevant
magistrate. The complaint can be made orally or in writing; if made orally, it must be
555 documented by the magistrate.

Upon receiving the complaint, the magistrate must consult the local chief in the area where the
alleged offence occurred, although this step might be bypassed if the complaint is accompanied
by a letter from the chief. After ensuring the complaint indicates prima facie evidence of an
offence and is not frivolous, the magistrate will formalise a charge against the accused.

560 The magistrate then decides whether to issue a summons or a warrant for the accused's
appearance in court. The law cautions that a warrant may only be issued if the charge is
substantiated by sworn evidence. The magistrate also has the discretion to delay issuing a
summons or warrant, potentially directing the police to investigate the matter first.

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 A magistrate plays a pivotal role in private prosecutions, acting as a gatekeeper who ensures that
565 only serious and substantiated complaints proceed to formal charges. The magistrate’s
responsibilities — from consulting local authorities to deciding on the issuance of summonses or
warrants — help maintain the integrity of the judicial process and prevent the misuse of the
system by addressing frivolous or vexatious complaints. Hence, the magistrate ensures that the
rights of the accused are protected while providing a pathway for private individuals to seek
570 justice.

The record shows that the Chief Magistrate complied with the law regarding the instant case.

This leaves me with the second and last question: whether the Chief Magistrate had the
jurisdiction to entertain the Respondents' complaint.

The term "jurisdiction" encompasses a wide range of meanings that vary based on the context in
575 which it is used.

According to Black's Law Dictionary, 8th ed. 2004, on page 867, jurisdiction is defined,
among other interpretations, as follows: 1). A court’s power to decide a case; 2). A geographic
area within which Political or Judicial Authority may be exercised; and 3). A political or
Judicial Subdivision within an area.

580 In Kasibante Moses vs Katongole Singh Marwaka & Anor – Kampala Election Petition No.
23 of 2011 [2011] UGHC 153 (23 October 2011) – Court stated that:

“The term jurisdiction is not a term of art. It is a term of law. It is a term of very
extensive legal import. It embraces every kind of judicial action. It confers upon the
court the power to decide any matter in controversy. It presupposes the existence of a
585 duty. Constituted Court with full control over the subject matter under adjudication. It
also presupposes full control by the court of the parties to the subject matter under
investigation by it. Jurisdiction defines the power of a court to inquire into facts, to apply
the relevant law, to make decisions and to declare the final outcome of the subject matter
under its inquiry.”

21
590 In Ahmed Kawoza Kangu vs Bangu Aggrey Fred & Anor SCC Application No. 4 of 2007,
Justice Bart Katureebe, then JSC, held that, jurisdiction of the court is not a matter for
implication but must be prescribed by law.”

In this context, I interpret jurisdiction to signify 1) the authority of a court to adjudicate a case
and 2) a specific geographic region where judicial power can be exercised.

595 In paragraph 5 of the Complaint on Oath, the Applicant is said to have “committed the offence of
insulting the modesty of a woman contrary to section 115 (3) of the Penal Code Act.” In the
same paragraph, the complainants allege that the offence was committed at Katonga Road in
Kampala Central, Kampala.” the Respondents' complaint.”

The authority of a Chief Magistrate to adjudicate cases is provided for in section 161 (1) (a) of
600 the Magistrates’ Court Act, which permits a chief magistrate to handle any case, excluding those
that carry the death penalty. The alleged violation pertains to section 115 (3) of the Penal Code
Act, which prescribes a penalty of one year’s imprisonment. This offence falls within the subject
matter jurisdiction of the Chief Magistrates' Court.

Touching on the issue of Geographic Jurisdiction, Item Number 14 of the schedule in the
605 Magistrates’ Court (Magisterial Areas) Instrument, 2024, shows the Magisterial Areas with
jurisdiction over offences committed within the Central Division of Kampala. These comprise
The Chief Magistrate at Buganda Road, a Grade 1 Magistrate at Buganda Road, a Grade 1
Magistrate at City Hall, and a Grade 1 Magistrate at the Law Development Centre (LDC).
Because of this, the matter of geographical jurisdiction is also satisfied.

610 Based on the above, it is evident that the subject matter and geographic jurisdiction align with
the powers conferred upon the Chief Magistrate's court. Firstly, as outlined in section 161 (1) (a)
of the Magistrates’ Court Act, Chief Magistrates are empowered to adjudicate cases that do not
carry the death penalty. The alleged offence carries a maximum penalty of one year’s
imprisonment, which is within the subject matter jurisdictional limitations of a Chief
615 Magistrate’s court. Secondly, the issue of geographical jurisdiction is also satisfied. The alleged
offence was said to have occurred on Katonga Road in Central Kampala, which falls under the
Central Division. The Chief Magistrate has the authority to preside over offences committed

22
 within this area. Under this, the Trial Chief Magistrate has the requisite jurisdiction to consider
the Complaint on Oath filed by the Respondents.

620 Ground 9: The Chief Magistrate Secretly consulted a purported "Parish Chief/Ward
Administrator" Whose Findings did not Confirm the Respondents' Complaint and
Improperly relied on this Consultation.

Section 42 (4) of the Magistrates’ Court Act provides that:

(4) Upon receiving a complaint under subsection (3), the magistrate shall consult the local chief
625 of the area in which the complaint arose and put on record the gist of that consultation; but
where the complaint is supported by a letter from the local chief, the magistrate may dispense
with the consultation and thereafter put that letter on record.

The excerpt above states that upon receiving a complaint, a magistrate is required to consult with
the local chief of the area where the complaint originated. This consultation is intended to gather
630 insights or opinions from a local authority figure regarding the complaint. The magistrate must
then document this consultation. The requirement for documentation suggests an element of
transparency in how complaints are handled. However, it does not explicitly state that these
consultations should be public knowledge. See: Basajabala vs Kakande (Criminal Revision
Case 02 of 2013 reported as 2013 UGHCCRD 19. In this case, the Chief Magistrate complied
635 with the law by consulting the Ward Administrator.

This now brings me to the second question. Whether the findings from the Parish Chief/Ward
Administrator did not Confirm the Respondents' Complaint?

The record shows that the Applicants attached a letter authored by Ms. Kabarungi Elizabeth, the
Chairperson of Katonga L.C1 in Nakasero I, and directed to the Chief Magistrate of Buganda
640 Road to their complaint under oath. The contents of the letter were as follows:

“my attention has been brought to a video recording with utterances by a one Isaac Kimaze
Ssemakadde the president of the Uganda Law Society insulting the person of the DPP. This is to
confirm that the offices of the People Front for Freedom (PFF) where the incident is alleged to
have taken place are in my area of Jurisdiction. The PFF occasionally holds functions where
645 member of the press attend, including one held on to the 18th of November 2024…”

23
 The record also indicates that, in compliance with the legal provisions outlined in section 42(4)
of the Magistrate’s Court Act, the Chief Magistrate at Buganda Road issued a letter on January
14, 2025, to the Nakasero 1 Parish Chief/Ward Administrator requesting verification of the
claims made. Accompanying this letter was some correspondence from the local L.C1
650 Chairperson. The Chief Magistrates’ letter read as follows:

“I received a complaint on oath filed by Byamazima Joshua and Tonny Tumukunde alleging that
a one Isaac Kimeze Ssemakadde, President Uganda Law Society insulted the modesty of a
woman a one Lady Justice Jane Francis Abodo, The Director of Public Prosecutions when he
allegedly referred to her as a "Vagina from Karamoja" while addressing members of People's
655 Freedom Front (PPF) on the 18th/November/2024 at Katonga. The said utterances were
recorded on a video.

I also received a letter from Ms. Kabarungi Elizabeth, L.CI Chairperson Katonga confirming the
said utterances. The same is attached.

This letter serves to ask you to confirm as the area Local Chief whether the said allegations are
660 true.”

In a response dated January 15, 2025, the Parish Chief/Ward Administrator of Nakasero 1,
Central Division, Kampala, confirmed that the statements were indeed made. She remarked, “…I
hereby confirm that the letter dated November 21, 2024, was written by Kabarungi Elizabeth, the
LC 1 Chairperson of Katonga Zone, Nakasero 1 Ward, which is located in Kampala Central
665 Division, and the stamp used belongs to Kampala Capital City Authority. She confirms that the
utterances were made, and all the contents of her letter are true, as per the phone call made to
her on 15th January 2025, at 13:21 hours.”

The above evidence indicates that the Parish Chief/Ward Administrator confirmed the alleged
utterances made by the Applicant. In the response dated January 15, 2025, the Parish Chief/Ward
670 Administrator explicitly states that the letter from Ms. Kabarungi Elizabeth, the LC1 Chairperson
of Katonga, was authentic, and the claims regarding the utterances were true. Her letter also
states she verified the truth of the allegations following a phone call to Ms. Kabarungi Elizabeth
on 15th January 2025 at 13:21 hours. Considering this evidence, I find that the Parish Chief
/Ward Administrator verified the statements.

24
675

Ground 7 & 5: The Chief Magistrate erred in Holding that a Prima Facie Case was
Established against the Applicant under Section 115 (3) of the Penal Code Act, Cap. 128.
The Chief Magistrate Improperly Found that the Respondents Met the Reasonable and
Probable Threshold Under Section 42(3) of the Magistrates’ Court Act.

680 Before a court sanctions a complaint under oath, it must be satisfied that it conforms to the law.

Section 42 (5) of the Magistrates’ Court Act states, “After satisfying himself or herself that prima
facie the commission of an offence has been disclosed…”

The key consideration is that before a magistrate orders a private prosecution, they must be
satisfied that the complaint discloses a prima facie case.

685 Jamil Ddamulira Mujuzi, an author on the subject of private prosecutions, underscores the
significance of establishing a prima facie case prior to authorising private prosecution, as
articulated in the following statement:

“The question of whether a private prosecutor should have a prima facie case because he is
permitted to institute a private prosecution has been addressed differently in different countries.
690 In some countries such as Australia (New South Wales), the existence of a prima facie case is
one of the requirements that have to be met before a person may be permitted to institute a
private prosecution. The rationale behind this requirement is to prevent people from abusing
their right to institute a private prosecution.

As the Tanzanian Court of Appeal held in Edmund Mjengwa and six others v. John Mgaya and
695 four others, Criminal Appeal No. 18 of 1999, “in all applications of this kind, unless the
magistrate judicially applies his mind to all the circumstances in which to grant leave for private
prosecution, the danger of victimization and abuse of process is imminent. The essential
ingredient of the offence is one such factor that should not be overlooked.1”

1
Mujuzi, J.D. (2017). Private prosecutions in Zanzibar. East African Journal of Peace and Human Rights, 23(2):
200 – 231.

25
 Turning to the instant case, the Chief Magistrate was alive to the requirements of section 42(3) of
700 the Magistrates Courts Act. On pages 6 - 8 of the Ruling in Uganda (Private Prosecution by
Byamazima Joshua and Tonny Tumukunde) V Isaac Kimaze Ssemakadde, Criminal Case
No. 913 of 2024, he stated as follows:

“The prima facie case under Section 42 of MCA is for Court to establish as to whether the
commission of an offence has been disclosed, and that the complaint is not frivolous or
705 vexatious… The complainants allege that the alleged utterances amount to an offence under
Section 115 (3) of the PCA. Section 115 (3) of the Pena Code Act states; “Any person who
intending to insult the modesty of any woman or girl utters any word, makes any sound or
gesture or exhibits any object, intending that word or sound shall be heard or that the gesture or
object shall be seen by that woman or girl or intrudes upon the privacy of that woman or girl,
710 commits a misdemeanour and is liable to imprisonment for a term of one year.” For a prima
facie case to be made out with regard to the offence of Insulting the modesty of a woman, the
following ingredients must be seen to exist:

1. A person utters any word, makes any sound or gesture or exhibits any object.

2. He or she does so with intent that that word or sound shall be heard or that the gesture or
715 object Shall be seen by that woman or girl or intrudes upon the privacy of that woman or girl.

3. The intention to insult the modesty of any woman or girl.

4. It is the accused person who uttered the said words or who made the said sound or gesture.”

He further stated that,

720 “the evidence before this court is of a flash disc with a video of the alleged utterances attributed
to the intended accused and a transcription of the same of which both were annexed to the
complaint. I have had the opportunity to play the said video on the flash disk. I have also read
transcription of the utterances on the said flash disc made by Uganda Broadcasting
Corporation.

26
725 In the said video and transcription, a male voice is heard saying; “All these things like your
particular kerfuffle is then given legal dressing by this vagina from Karamoja. I have made a
case before that you have a pumpkin for a DPP. But some lawyers continue to pretend that she is
actually a DPP and for some they take it very seriously because they think it is an attack on
womanhood or it is an attack on being Karamajong, that is absolute nonsense. She is a pumpkin.
730 She is dead wood. She is a dimwit. She is a careerist, shameless, careerist. She is a cuckoo in the
nest of our criminal justice system”.

The male voice in the above quote was referring to a Director of Public Prosecutions. Uganda
has one DPP, Hon. Justice Jane Frances Abodo who is a woman and she comes from Karamoja.
It is most likely that she is the person referred to in the above video. In the said video, the male
735 voice is heard referring to the DPP, a Woman as a “Vagina from Karamoja… a pumpkin... dead
wood... a dimwit.”

In their primary meaning, the above words are offensive and if directed to a woman, they amount
to insulting her modesty…It follows therefore that whoever made such utterances at a public
gathering in the presence of media intended that Hon. Justice Jane Frances Abodo would hear
740 the said utterances. Anyone who refers to a woman by her private body parts intends to insult
her modesty. Anyone who refers to a woman as “Vagina from Karamoja… a pumpkin... dead
wood... a dimwit” at a public gathering well aware that there is media presence knows that the
said woman will definitely hear those words said against her. The intention is most likely to
insult her modesty.

745 The person in the video has been identified as Isaac Kimaze Ssemakadde, the President of
Uganda Law Society. When his advocates appeared in Court on 04th/12/2024, they did not
dispute the allegation that it was their client in the video. Their argument was that Hon. Justice
Frances Abodo had not complained yet this case is victim centered.”

The evidence on record as alluded to in the Chief Magistrate's ruling indicate that prima facie,
750 the necessary elements of the offence of insulting the modesty of a woman were established.
Below is a breakdown of how each ingredient is satisfied:

27
 1. The utterance of Words, Sounds, Gestures, or Exhibition of Objects: There is
evidence that a person uttered derogatory terms and phrases directed at a woman in a
video recording.
755 2. Intent for the Words or Sounds to be Heard: There is evidence that the remarks were
made at a public gathering, with media present. The setting and presence of media
indicate a clear intent to broadcast those statements beyond a private conversation. The
strategic choice to articulate the remarks in a forum where they would be recorded and
disseminated underscores the likelihood that the accused sought to express his views and
760 ensure they reached the victim's ears.
3. Intention to Insult Modest: When given their ordinary meaning, the language used is
offensive and demeaning and serves no constructive purpose other than to inflict
emotional harm and degrade in a public setting, whoever they are intended for.
4. Accused as the Originator of the Remarks: It has been established that Isaac Kimaze
765 Ssemakadde is the individual making the remarks in the video, and his advocates did not
dispute this identification in court.

The Chief Magistrate accurately concluded that a prima facie case for the alleged offence was
established, as all essential elements were evident.

I will now deal with the issue of reasonable and probable cause

770 Section 42(3) of the Magistrates Courts Act provides that:

“A person other than a public prosecutor or a police officer who has reasonable and probable
cause to believe that an offence has been committed by any person may make a complaint of the
alleged offence to a magistrate who has jurisdiction to try or inquire into the alleged offence, or
within the local limits of whose jurisdiction the accused person is alleged to reside or be. Every
775 such complaint may be made orally or in writing signed by the complainant, but if made orally
shall be reduced into writing by the magistrate and when so reduced shall be signed by the
complainant.”

This section empowers individuals /private citizens to prosecute crimes they believe have
occurred. It specifies that any person (except for public prosecutors or police officers) who

28
780 believes an offence has occurred has the right to make a complaint. The individual, however,
must have "reasonable and probable cause" for believing that an offence has been committed. It
doesn’t matter whether an individual is the victim or not. All that the said individual is required
to have are legitimate reasons or evidence to suspect that a crime has taken place.

The operative phrase in the above section is reasonable and probable cause. In Amina Mpimbi
785 v. Ramadhani Kiwe, 1990 TLR 6 (HC)8, probable and reasonable cause was defined as:

“An honest belief in the guilt of the accused based on a full conviction, founded upon reasonable
grounds, of the existence of a state of circumstances, which, assuming them to be true, would
reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to
the conclusion that the person charged was probably guilty of the offence imputed.”

790 The phrase "reasonable and probable cause" means the individuals should have legitimate
reasons or evidence to suspect that a crime has taken place. This requires more than mere
suspicion. Some level of evidence or support for the belief is necessary.

In the instant case, the Private Prosecutors presented evidence alongside their complaint,
specifically a flash drive containing a recording of the alleged utterances contravening section
795 115 (3) of the Penal Code Act and a transcription from the Uganda Broadcasting Corporation.
The Chief Magistrate judiciously considered the statement under oath and consultations with the
Ward Administrator and found that the complainant had met the threshold of a reasonable and
probable cause before ordering the prosecution.

Ground 10 & 11: The Chief Magistrate Wrongly Found the Respondents’ Complaint was
800 not Vexatious and Frivolous. He erred in Holding that the Respondents’ Complaint was
not an Abuse of Court Process.

Section 42 (5) of the Magistrates’ Court Act provides that “After satisfying himself or herself
that prima facie the commission of an offence has been disclosed and that the complaint is not
frivolous or vexatious…” under this ground, the court is more interested in the phrase, “…and
805 that the complaint is not frivolous or vexatious…” This part of the section is that the complaint
should have merit and not be based on unsupported accusations or intended merely to cause
trouble.

29
 In his Affidavit supporting this Application, the Applicant asserts that the respondents have
initiated several lawsuits against him in bad faith, clearly misusing the court process, and, in
810 blatant abuse of the court process, seeking to further harass him by commencing a baseless
private prosecution.

The fact that a private prosecutor is bringing proceedings or that civil proceedings are concurrent
or remain an option are irrelevant considerations save where improper motive is concerned. For
an accused in Private Prosecutions to raise the issue of the improper motive of the
815 prosecution/prosecutor, they should ordinarily be able to establish that:

1. The Private Prosecutor is pursuing a personal vendetta against them.

2. If instituted, the civil suits are in a way related to the criminal one.
3. The prosecution is purely out to achieve financial redress rather than as a means to
obtaining punishment for criminality.

820 In this instance, I find no evidence on record demonstrating that the Private Prosecutors have a
personal vendetta against the Applicant. I also find that the Applicant has not proven that his
prosecution is solely motivated by the desire for financial redress rather than to obtain
punishment for criminality. Through his pleadings, I find that the Respondents have filed two
civil matters. However, although these two matters are civil, they are not connected to the
825 criminal matter filed by the Respondents. These civil matters concern the expulsion of the
Attorney General and Solicitor General from the ULS Council via Executive Order RNB No. 1
of 2024. The current criminal matter involves insulting the modesty of a woman.

The Applicant claims the matters were withdrawn but provides no evidence. If the two matters
are still in court, the Civil Court will determine whether the Respondents had the necessary locus
830 standi to file those matters. In doing so, the issue of whether they egregiously abused the court
process will be adequately addressed. If they were withdrawn, as suggested by the Applicant, he
is welcome to seek damages in the civil court for malicious prosecution. What this court will not
do is infer abuse of the court process without concrete evidence.

835 Ground 2: The Chief Magistrate Improperly Failed to Dismiss a Denied Complaint on
Oath by the Intending Private Prosecutors.

30
 The scenario that gave rise to this ground can be likened to a witness giving evidence in chief,
being cross-examined, seeming to contradict themselves, and offering clarifications during re-
examination.

840 Paragraph 5 of the Affidavit in Support of vide Criminal Misc. Application No. 87 of 2024
states, “I know that on 22nd November 2024, a cantankerous couple of mischievous advocates,
Byamazima Joshua and Tonny Tumukunde, filed a complaint on oath seeking summons for my
appearance to plead to a proposed charge of insulting the modesty of a woman, to wit Ms. Jane
Frances Abodo of Karamoja, contrary to section 115(3) of the Penal Code Act.”

845 In Paragraph 7 of the Affidavit in Reply, Joshua Byamazima deponed what seemed like a denial
of the Complaint on Oath if read in isolation of the entire Affidavit. The deposition stated that
“the contents of paragraphs 5 to 26 of the applicant’s affidavit are denied in toto, and the
applicant shall be put to strict proof thereof.” However, if the entire Affidavit is read, it becomes
clear that the complainant on Oath was not denied. Paragraph 9 states, “I know the Complaint on
850 Oath in KLA-OO-CR-CO-0913-2024 is competently before the court having complied with all
the preliminary requirements.”

I find that Joshua Byamazima did not deny his complaint on oath despite what might appear to
be a denial when looked at in isolation from the entire Affidavit. In Paragraph 7 of the Affidavit
in Reply, Joshua states that he denies the contents of the applicant’s affidavit (including the
855 complaint) "in toto," which could be interpreted as denying the complaint. However, when taken
in the context of the entire affidavit, including Paragraph 9, it becomes clear that he
acknowledges the existence of the complaint on oath.

In explicitly saying, "I know the Complaint on Oath in KLA-OO-CR-CO-0913-2024..., the

respondent is, in essence, indicating that they know the particulars of the sworn complaint related
860 to that specific case number allocated to the matter involving legal allegations or claims. In
saying, “…is competently before court…, the respondent admits that the complaint has been
adequately filed according to legal procedures and is under the court's jurisdiction. So, while he
may deny specific allegations or claims outlined in the application, he does not deny that the
complaint exists and is legally in the court system.

31
865 Ground 6: The Chief Magistrate Disregarded Sections 6(2)(a), 7(1), 7(2), and 7(4) of the
Electronic Transactions Act in Considering the Respondents' Video Evidence.

For ease of reference, I will reproduce the law.

Section 6(2)(a) of the Electronic Transactions Act Cap. 99 provides that:

“the authenticity of a data message shall be assessed by considering whether the information has
870 remained complete and unaltered, except for the addition of an endorsement and any change
which arises in the normal course of communication, storage or display”

Section 7(1) (2) & (4) of the Electronic Transactions Act Cap. 99 provides that:

“(1) In legal proceedings, the rules of evidence shall not be applied so as to deny the
admissibility of a data message or an electronic record—

875 (a) merely on the ground that it is constituted by a data message or an electronic record;

(b) if it is the best evidence that the person adducing the evidence could reasonably be expected
to obtain; or

(c) merely on the ground that it is not in its original form.

(2) A person seeking to introduce a data message or an electronic record in a legal proceeding
880 has the burden of proving its authenticity by evidence capable of supporting a finding that the
electronic record is what the person claims it to be.

……………………………………………………………………………………………………

(4) When assessing the evidential weight of a data message or an electronic record, the court
shall have regard to—

885 (a) the reliability of the manner in which the data message was generated, stored or
communicated;

(b) the reliability of the manner in which the authenticity of the data message was maintained;

(c) the manner in which the originator of the data message or electronic record was identified;
and

32
890 (d) any other relevant factor.”

Without going into the merits of the case, ensuring that electronic communications can be
recognised and evaluated in judicial proceedings is essential. So, when does electronic evidence
become admissible—during investigation or trial? Electronic evidence is admissible when it is
authenticated and meets the rules of evidence, typically at the trial stage. During the preliminary
895 phase of private prosecutions, evidence is used to establish a prima facie case, meaning it must
raise a presumption of fact unless contradicted by other evidence. This evidence does not need to
be conclusive but should provide a reasonable basis for the claims made. At this stage, the focus
is on whether sufficient evidence exists to proceed rather than securing a conviction. In the
current case, since the trial had not commenced, the chief magistrate was not required to adhere
900 to the admissibility criteria for electronic evidence. His only obligation under section 42(5) of the
Magistrates' Court Act was to determine if the available evidence could raise a presumption of
fact, which he successfully fulfilled.

Ground 8: The Chief Magistrate did not Consider the Context, symbolism, and
905 Constitutional Protections of the Words in Question, thereby Occasioning a Miscarriage of
Justice.

I’ll first deal with the issue of failure to Consider the Context and symbolism of the Words in
question.

The first, often considered the primary, rule of interpretation is the Literal Rule. Under this rule,
910 words are interpreted based on their plain/ordinary meaning without delving into other excesses
like context, symbolism, intent, or purpose. When using this rule, the court's only role is to
ascertain the meaning of the words in their common, everyday sense rather than with specialised
or technical meanings.

In the instant case, the Trial Magistrate followed the first rule of interpretation, as seen on page 7
915 of his Ruling vide Criminal Case No. 913 of 2024. I quote, “In the said video, the male voice is
heard referring to the DPP, a Woman, as a "Vagina from Karomoja... a pumpkin... dead wood...
a dimwit" In their primary meaning, the above words are offensive and if directed to a woman,
they amount to insulting her modesty.” In my view, I find that even an ordinary bystander,

33
 having given the words in question their ordinary meaning, would have come to the same
920 conclusion that the words were offensive.

If the Applicant wanted to benefit from the other two rules of interpretation, the Golden Rule and
the Mischief Rule, he owed it to himself to appear before the court when summoned and, if put
on a defence, explain the context and symbolism of the words in question. Then, the court would
have something to consider. From an outsider's perspective, the Applicant wants to use Revision
925 to circumvent the procedure.

I’ll now turn to the issue of failure to Consider the Constitutional Protections of the Words.

Article 29 (1) (a) of the Constitution guarantees freedom of speech and expression. This right is
fundamental to the foundation of a democratic society, enabling individuals to engage in open
discussions, challenge authority, and promote government accountability. It is a crucial element
930 of a free and just society, fostering informed choices, enhancing transparency, and allowing
individuals to express their diverse opinions. While freedom of expression is a core aspect of
Ugandan society, it is not without its limitations and restrictions, particularly regarding national
security, public order, and the rights of others (see Article 43 of the Constitution).

Several laws in Uganda regulate the landscape and activities related to freedom of speech.
935 Therefore, speakers must understand the boundaries set by law before engaging in any speech.
Of specific interest to this case are Article 43 (1) & (2) (c) of the Constitution, Article 24 of the
Constitution, and Section 115 (3) of the Penal Code Act.

Article 43 (1) & (2) (c) of the Constitution provides that:

“1. In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall
940 prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2) (c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter
beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what
is provided in this Constitution.”

Article 24 of the Constitution provides that:

945 “No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment
or punishment.”

34
 Section 115 (3) of the Penal Code Act provides that:

“Any person who, intending to insult the modesty of any woman or girl, utters any word, makes
any sound or gesture or exhibits any object, intending that such word or sound shall be heard, or
950 that such gesture or object shall be seen by such woman or girl, or intrudes upon the privacy of
such woman or girl, commits a misdemeanour and is liable to imprisonment for one year.”

When read together, the above provisions of the law show that while individuals in Uganda are
entitled to speak freely, the prevailing legal environment indicates that such freedom exists
within a framework of caution and compliance with the complex web of laws meant to protect
955 various interests.

In this particular case, within the context of their ordinary meanings, dehumanising words which
serve no constructive purpose other than to inflict emotional harm and degrade were allegedly
said in a public setting, with media present. The words were directed to a woman. The remarks,
having been allegedly said at a public gathering with media present, indicate a clear intent to
960 have the statements recorded and disseminated with a likelihood of reaching the victim's ears.
Considering this, the Applicant could, on the face of it, be said to have committed a
misdemeanour under Section 115 (3) of the Penal Code Act and contravened Article 43 (1) of the
Constitution by violating the fundamental human right of the woman he is alleged to have
insulted that are also protected under Article 24 of the Constitution.

965 For the court to regard the said words as protected, it must evaluate whether they fit within the
acceptable and demonstrably justifiable category, as outlined in Article 43 (2) (c). Determining
whether words are constitutionally protected is inherently contextual. The court cannot
indiscriminately classify any words, particularly those deemed offensive, as constitutionally
protected without proper context. The Applicant has failed to provide this necessary context
970 despite being called upon. Consequently, he cannot fault the Chief Magistrate for not recognising
them as constitutionally protected.

Ground 3: The Chief Magistrate Erred in law by Denying the Applicant’s Request to
Cross-examine Byamazima on his Affidavit in Reply.

The right to cross-examine witnesses, including a private prosecutor, is a fundamental aspect of a

975 fair trial, ensuring that the accused can challenge the evidence presented against them. However,

35
 under Section 1 of the Evidence Act, Cross-examination of an affidavit in reply is at the
discretion of the Court. Section 1 of the Evidence Act provides that,

“this Act shall apply to all judicial proceedings in or before the Supreme Court, the Court of
Appeal, the High Court and all courts established under the Magistrates Courts Act, but not to
980 affidavits presented to any court or officer nor proceedings before an arbitrator.”

The Act is intended to govern the proceedings in specified courts while explicitly excluding
certain legal documents (affidavits) and alternative dispute resolution processes (arbitration). By
virtue of this, the Court may exercise its discretion to allow cross-examination depending on
particular factors of each case. Some of the things the court can consider before exercising
985 discretion include the following:

1. Nature of the case.

2. Whether cross-examination will unduly delay the trial or facilitate expeditious disposal?
3. Where the deponent’s affidavit contains facts that are in issue or conflicting in evidence?
4. If cross-examination will assist in resolving the issue before the court?

990 In the instant case, the respondents are said to have denied their complaint on Oath. The Chief
Magistrate in his Ruling, vide Criminal Misc. Application No. 87 of 2024 found that, “...once the
ten (10) paragraphs of the said affidavit in reply are read together, Joshua Byamazima cannot
be found to have denied filing of the complaint.” Herein, I have agreed with this finding under
the subheading ground 2. In my view, cross-examination would only unduly delay the trial and
995 would not have facilitated the expeditious disposal of the matter. It, therefore, did not warrant the
court to exercise its discretion.

Ground 4: The Chief Magistrate Wrongly Concluded that There was no Breach of the
Duty of Candour by the Respondents.

Paragraph 9 of the Applicant’s Motion vide Criminal Misc. Application No. 87 of 2024 states
1000 that the respondents did not make frank and full disclosure to the Court and the investigative
and prosecutorial authorities.

Additionally, in Paragraph 15 of the Affidavit in Support vide Criminal Misc. Application No.
87 of 2024, the Applicant avers that, “the cantankerous couple unjustifiably deprived me of an

36
 opportunity to confront the alleged victim on the ingredients of the proposed offense before an
1005 independent investigator, thereby violating my constitutional right to a fair pre-trial
investigation.”

I recognise that the Legal Framework for Private Prosecutions is unclear and well-developed.
This may taint an accused person’s right to a fair hearing under Article 44 (c) of the Constitution.
It may also hinder a prosecutor’s right to successfully prosecute a “clever” accused person who
1010 exploits these loopholes to their advantage through unnecessary, endless objections.

In light of this, I find this issue deserving of Revision. This would enable the court to interrogate
the various problems arising, including:

1. Disclosures in Private Prosecutions. When are they made? What can be disclosed? and to
whom are they made?
1015 2. The rights of a prospective accused person in Private Prosecutions
3. The Roles and Duties of a Private Prosecutor.
4. The role of the victim.

Ground 12: The Chief Magistrate Improperly Declined to Recuse Himself from the
Proceedings.

1020 The Applicant contended that the Chief Magistrate should have recused himself from the trial.
The record shows that the Chief Magistrate considered the request to step down and dismissed it
for lacking merit.

In light of all the above, except ground four, which touches on the Right to a Fair Hearing, I find
that the remaining grounds for Revision fronted by the Applicant do not raise legitimate issues
1025 with a reasonable chance of success if brought to a full hearing.

By virtue of ground 4, the Applicant has established a Prima Facie Case.

ii. Whether the Applicant Will Suffer Irreparable Damage if the Application is Not
Granted.

The Applicant contends that he will suffer irreparable harm and prejudice by undergoing a trial
1030 that is prima facie vitiated by fundamental flaws and irregularities. The Applicant further asserts
that the circumstances have exposed him to adverse publicity, damaging his status, profession,

37
 and livelihood, and threats of arrest, detention, conviction, and sentencing on a charge he
maintains is unfounded, illegal, defective, and unsustainable. Conversely, the Respondent argues
that the Applicant has failed to demonstrate that he will suffer any loss or injury that cannot be
1035 compensated through monetary damages, nor has he shown that such harm is difficult to
quantify. This court is in doubt as to whether or not the loss shall be irreparable. Considering
this, I find that the applicant has failed to prove this ground.

iii. Whether the Balance of Conveniences Tilts in Favour of the Application Being
Granted.

1040 This foundational principle is only considered if the court is in doubt of both, or any, of the first
two requirements. Having found that the applicant has a prima facie case, but the court is in
doubt as to whether or not they shall suffer irreparable loss, the balance of convenience must be
considered.

To achieve this, I will weigh the potential inconvenience to the applicants against those of harm
1045 to the respondents if the stay is granted.

Firstly, the applicant argues that proceeding with the lower court's prosecution without a stay
could lead to a situation where, if the revision application is ultimately upheld, the applicant
would be left in a position where their rights and liberty have been impacted unnecessarily. The
argument emphasises preserving the status quo until the revision application is resolved. On the
1050 other hand, the respondents assert that a stay would impede their legal rights and hinder the
judicial system's integrity. I acknowledge that the ability to pursue legal remedies is a
cornerstone of justice, and any obstruction could set a precedent that undermines the efficiency
of the legal process. However, the court must balance the rights of the victims and accused
persons so that none should be sacrificed at the altar of justice. The victim and the accused
1055 deserve justice; all must have their day in court without unjustifiable roadblocks.

Secondly, the applicant highlights the importance of safeguarding personal liberty, which is a
fundamental principle of law. By granting a stay, the court protects the applicant’s rights,
ensuring that any adverse actions taken by the lower court are revisited and assessed for validity.
On the other hand, the respondents emphasise that halting proceedings could have serious

38
1060 ramifications for the proper functioning of the justice system, potentially affecting public
confidence in the rule of law.

Third and last, the Applicant argues that allowing the lower court to proceed could result in
irreparable harm to him if the findings were later annulled. A stay would mitigate this risk by
halting proceedings while a revision is promptly conducted. The applicant is basically arguing
1065 that if the lower court continues with its proceedings and makes findings that are later
overturned, it could lead to significant and irreversible damage to him. Therefore, he believes
that granting a stay is necessary to prevent this potential harm while a review of the case is
conducted.

On the other hand, the respondents argue that If the stay were granted, they would subsequently
1070 suffer a loss of their rights to prosecute. They may not be able to recover damages sufficient to
compensate for the full extent of their loss if the inordinate stay of proceedings pending the
revision application were found to be unwarranted, unlike the malicious prosecution remedy
available to the applicant. The respondents argue that granting the stay would potentially harm
their rights to pursue prosecution and that they might not be able to fully recover damages for
1075 their losses if the stay is deemed unnecessary. This situation contrasts with the applicant, who
can seek a remedy for malicious prosecution.

In the scenario presented, the balance of convenience leans towards the applicant for several
reasons despite the valid concerns raised by the respondents. The reasons in favour of granting
include:

1080 1. Preservation of Status Quo.

The applicant emphasises maintaining the status quo until the revision application is resolved.
This argument underscores the need to prevent the potential violation of the applicant's right to
liberty that could arise from continuing the lower court's prosecution.

2. Judicial Integrity and Rights of the Respondents.

1085 While the respondents raise important points about the potential hindrance to their legal rights
and the judicial process, these concerns are primarily about the implications of delays and the
judicial system's efficiency. However, the more pressing issue is the protection of individual

39
 rights, especially when those rights may be jeopardised. The respondents' claims of harm do not
carry the same immediacy or risk of damage compared to the applicant's concerns.

1090 In the interest of Justice, I find it justifiable to grant a stay to safeguard the applicant's right to
liberty while the revision is underway. This would ensure a fair process for both parties without
the threat of serious consequences.

7.0. Decision

1095 The Application is allowed for the following reasons:

1. The applicant has established a prima facie case.

2. The balance of convenience tilts in favour of the application being granted.

Orders

1100 1. The Chief Magistrate’s Court of Buganda Road is directed to stay proceedings in
Uganda (Private Prosecution by Byamazima Joshua and Tonny Tumukunde) V
Isaac Kimaze Ssemakadde, Buganda Road Chief Magistrates’ Criminal Case No.
913 of 2024, pending the determination of Isaac Kimaze Ssemakadde V Uganda
(Private Prosecution by Byamazima Joshua and Tonny Tumukunde), Criminal
1105 Revision Case No. 002 of 2025.
2. The parties are directed to file submissions in Criminal Revision Case No. 002 of 2025
to expedite the revision. The Applicant must file his submissions by 23 rd April 2025.
The Respondents must file their reply by 2nd May 2025. Any rejoinder must be filed by 7th
May 2025. The Court will issue its Ruling on notice.

1110

Gadenya Paul Wolimbwa

JUDGE

40
1115 10th April 2025

I request the Assistant Registrar to deliver this ruling on 11 th April 2025 and upload it to ECMIS
thereafter.

1120

Gadenya Paul Wolimbwa

JUDGE
10th April 2025

41