THE REPUBLIC OF UGANDA

IN THE MAGISTRATE COURT OF UGANDA AT KABALE UNIVERSITY

CRIMINAL CASE NO. 001 OF 2025
9TH APRIL 2025
UGANDA…………………………………………………………………………………PROSECUTOR
VERSUS
BESIGYE DERRICK…….……………………………………………………………………ACCUSED
MEMORIAL FOR THE PROSECUTION
OPENING STATEMENT
STATEMENT OF FACTS.
Besigye Derrick, the accused was on the 13th FEBRUARY 2025 seen by Luyima Shafik entering the store’s
inventory during the time which the phone (iPhone pro max 15) is believed to have been stolen. In
addition to that, the footages of the CCTV cameras on the 13th February 2025 between 5:00pm and
6:00pm was found to be corrupted and then the same phone was later found in Besigye Derrick’s back
pack days later by the stores security team during a surprise check.
ISSUES
1. Whether there was the offence of theft
2. Whether circumstantial evidence amounts to substantial defense in criminal cases
LAW APPLICABLE
1. The 1995 constitution of the republic of Uganda
2. The Penal Code Act Cap 128
3. The Evidence Act Cap 8
4. Case law
RESOLUTION OF ISSUES.
ISSUE 1: WHETHER THERE WAS THE OFFENCE OF THEFT.

The Penal Code Act under section 237(1) provides for the offence of theft. It provides that,
“Any person who fraudulently and without claim of right takes anything capable of being stolen or
who fraudulently coverts to the use of any person other than the general or special owner of anything
capable of being stolen, is said to steal that thing.”
In addition to that, the Black’s law dictionary 11th edition page 1780 defines theft to mean the wrongful
taking and removing of another person’s property with the intent of depriving the true owner of it.
In the case of Kizito and another v Uganda criminal appeal 136 of 2022, the court outlined the ingredients
of the offence of theft to be the following
1. That there was an act of unlawful taking
2. That the item stolen was of value and belonged to another person
 3. That the property was taken without claim of right and with the intention to permanently deprive
the owner of it.
4. That the accused person is responsible for taking the property.
The above ingredients are hereby proved beginning with:
1. That there was an act of unlawful taking
In the case of Sula kasiira v Uganda1, court held that asportation occurs when property is taken without
the owner’s consent and agreement. In this case, the manager on the 15th February during a routine
inventory check discovered that one unit of the iPhone 15 pro max was missing. It is therefore evident
that there was actual taking of one’s property without consent since the manager had not consented the
release of the iPhone pro max.
More so, Halsbury’s Laws of England provides for the following statement on asportation, “there must
be what amounts in law to an asportation (that is carrying away) of the goods of the prosecutor
without consent. But for this purpose, provided there’s some severance, the least removal of the
goods from a place where they were is sufficient although they are not carried off the removal,
however short the distance it maybe from one place to another upon the owner’s premises is
sufficient aspiration.” 2
The disappearance of the phone from the store without the consent of the manager of the Star telecom
kabale is thus enough evidence to satisfy that asportation indeed occurred and as a result, there was thus
the act of unlawful taking.

2. That the item stolen was of value and belonged to another person
Article 26(1) of the constitution of the republic of Uganda provides that every person has a right to own
property either individually or in association with others.
The prosecution therefore finds it that the star telecom kabale has and had a constitutional mandate to
own property as individuals or as associates since the constitution provides for the right to property under
the above mentioned article of the constitution.
From the fact of the case, it is very evident that the stolen property an iPhone pro max 15 was of value of
worth shs 2,000,000. This value price of the stolen property indeed reveals and satisfies the ingredient
that the stolen property was of value to another person.
On the value belonging to another person, the facts clearly reveal that the stolen phone was stolen from
the stores of star telecom kabala and was thus a property of the said enterprise of kabala star telecom.
It is thus proved that the item stolen was of value and belonged to another person.
3. That the property was taken without claim of right and with the intention to permanently
deprive the owner of it.

1
Sula Kasira v Uganda criminal appeal no. 20 of 1993
2
Halsbury’s laws of England 3rd edition volume 10 paragraph 1484.
The black’s law dictionary defines unlawful to mean any act that is not authorized by law 3. It is evident
therefore that the phone was taken unlawfully and dishonestly by the accused since no payment was made
to purchase it under normal circumstances. As a result of this, it is evident that there was dishonesty.
Section 7 of the penal code act cap 128 provides that a person is not criminally responsible in respect of
an offence relating to property if the act done or omitted to be done by the person with respect to the
property was done in the exercise of an honest claim of right and without intention to defraud.
The above was also held in the case of Ntenge v Uganda4 were court held that the appellant acted under
claim of right and was thus supposed to be acquitted of his offences.
In this case, Besigye Derrick the accused neither acted under the claim of right and it is thus clear that
there was no claim of right since it has not been raised by the accused.
In the case of Uganda v Omona Frank5, the court held that the accused may be deemed to have an
intention to permanently deprive the owner of the property if the taking was for a period or in
circumstances which made it equivalent to an outright taking or disposal.
The period between the 13th February and when the phone was found in the bag of the accused days after
the 15th February is a period enough to qualify the taking of the phone to fall or to be with the intention to
permanently deprive the owner of it.
Considering the above, it is clear and evident that there was unlawful taking, without claim of right and
with the intention to permanently deprive the owner of the phone.
4. That the accused person is responsible for taking the property.
Besigye Derrick was seen entering the store on the same date and time when the phone is believed to have
disappeared. The footages of the very time when the phone went missing and when derrick entered the
store are said to have been tampered with.
Section 117 of the evidence act cap 8 provides that all persons shall be competent to testify unless the
court considers that they are prevented from understanding the questions put to them or from
giving rationale answers to those questions by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind.
In this case, Luyima Shafik a competent witness under the above section saw Besigye Derrick entering
the store on the 13th February 2025 between the hours 5:00pm and 6:00pm the same time that has been
corrupted on the CCTV footages and the same time that the phone is believed to have gone missing.
Besigye Derrick admits having been in the room at that very time thus proving the existence of no one
else at that very time in the room apart from him.
Section 57 of the Evidence act cap 8 provides that facts admitted need not to be proved. The section
reads, “no facts need be proved in any proceeding which the parties to the proceeding or their
agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any
writing under their hands, or which by any rule of pleading in force at the time they are deemed to
have admitted their pleadings, except that the court may, in its discretion, require the facts
admitted to be proved otherwise than by such admissions.”
3
Black’s law dictionary 9th edition page 1678
4
Ntenge v Uganda criminal appeal no 70 of 2022.
5
Uganda V Omona Frank criminal appeal No. 15 of 2018
It is thus undisputed that Besigye Derrick was at the scene of crime when the phone is said to have seized
to appear.
To further prove his guilt, the stolen phone iPhone pro max 15 was later found in the back bag of Besigye
Derrick days after the phone had gone missing during a surprise check by the stores security team.
Relying on the doctrine of recent possession, the accused can be convicted of an offence in a situation that
he is not in position to explain how he came to possess it. In the case of R V Abramovitch, court held that,
“the doctrine of recent possession entitles the court to draw an inference of guilt where the accused is
found in possession of recently stolen property in unexplained circumstances.”
This principle is thus relevant to the case of Besigye Derrick since the discovery of the stolen phone
iPhone pro max 15 in his back bag happened days after its disappearance and he had he no clear
explanation as to how the phone found its way to his bag. Therefore, this act infers guilt on Besigye
Derrick whose defense of the phone being planted in his bag lacks credibility and fails to rebut the
presumption of recent possession
It is thus evident that the accused Besigye derrick is responsible for the offence of theft having fulfilled
the ingredients of theft above.
ISSUE 2: WHETHER CIRCUMSTANTIAL EVIDENCE AMOUNTS TO SUBSTANTIAL
DEFENSE IN CRIMINAL CASES
In the case of case of n R. v. Taylor, the principle as regards the application of circumstantial evidence
was enunciated in these words: Circumstantial evidence is very often the best evidence. It is evidence of
surrounding circumstances which, by intensified examination, is capable of proving a proposition with the
accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.
The direct evidence of identification is questionable. The court is therefore left to examine circumstances
here. The series of events at Star telecom kabale on the 13th of February 2025 shows the accused person
enter the store through the evidence of his coworker Luyima Shafik. This is followed by the corrupting of
the footages for that very time when the accused was in the store and finally the finding of the phone in
Besigye Derrick’s back bag. These circumstances indicate and further reveal Besigye Derrick as the
person responsible for the disappearance of the stolen phone.
The evidence Act Cap 8 provides under section 113 for the court to presume existence of certain facts.
The section provides that, “the court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular case.”
In the facts above, it is clear that the court should presume the existence of certain facts beyond see like
the acts of the accused owing to the circumstantial evidence at hand that really call the court to find the
accused liable for the offence of theft.
Considering the circumstantial evidence available and the doctrine of recent possession that was satisfied
by the discovery of the stolen iPhone pro max 15, it is evident and undoubtedly clear that the prosecution
has successfully placed the accused at the scene of crime and proved him as the guilt person responsible
for the stolen phone.
Having proved through the above circumstantial evidences and the doctrine of recent possession, we are
well satisfied and contented that the accused Besigye Derrick is guilty for the offence of theft contrary to
section 237 of the penal code act cap 128.
We pray that this court finds the accused guilty of the offence of theft contrary to section 237 of the Penal
Code Act cap 128 and convict him accordingly in line with section 244 of the Penal Code Act Cap 128.

Prepared by
KWESIGA ABEL and KITIIBWA DAPHINE
STATE PROSECUTORS