STAY OF CRIMINAL PROCEEDINGS PENDING CIVIL SUIT

DETERMINATION INVOLVING LAND MATTERS.

The right to own land is principally derived from article 26 of the constitution
of Uganda which provides for the rights of individuals to own property. This
article is read together with article 237 that recognises the various forms of land
ownership. Land disputes have been on a sharp rise in recent times and hence
they demand for delicate attention of the justice system so as to protect the
rights of the individuals to own and use land as property1 just as is provided for
in the constitution.

There are a number of offences in the Penal code act which are related to land.
These include criminal trespass2 , malicious damage to property3 among others
including in other statutes. The provision of section 161 of the magistrates’
courts act allows for these offences to be tried in magistrate courts. Similarly,
land matters involving determination of ownership are handled in the high court
(particularly the land division) in exercise of its original jurisdiction provided in
the constitution4.

There are times where criminal proceedings are instigated on charges related to
property under the penal code act and other related laws during the pendency of
or prior to the hearing of civil cases arsing from the same facts of land disputes,
the purpose of the civil dispute being to determine the ownership of the land in
question.

The laws of general application to civil and criminal matters in Uganda have no
provision for staying criminal proceedings in preference of a civil case. Be that
as it may the Magistrates courts act states that, “No magistrate’s court shall
proceed with the trial of any suit or proceeding in which the matter in issue is

1
Kanyeihamba J in Phillip Karugaba v A.G
2
Section 302 of the PCA
3
Chapter 32 of the penal code act
4
article 139(1)
also directly and substantially in issue in a previously instituted suit or
proceeding between the same parties, or between parties under whom they or
any of them claim, litigating under the same title, where that suit or proceeding
is pending in the same or any other court having original or appellate
jurisdiction in Uganda to grant the relief claimed”

The section allows for stay of proceedings in one court if there is an ongoing
suit in another court arising out of the same facts. However, the section is
somewhat ambiguous and there has been some tension in courts on the position
of the section with regard to criminal and civil suits from the same facts in
different courts at the same time. There is no universal principle that
proceedings in a criminal case must necessarily be stayed when a similar or
identical matter is pending before a civil court. This was noted by court in the
case of Sebulime Baker v Uganda5. The input of this position is that the
decision to stay criminal proceedings pending the determination of a civil suit in
land matters is based on various considerations that are unique for every case
and therefore, every case must be decided on its own merits in the interests of
justice. The high court of Kenya in a persuasive decision has held that the power
to stay criminal proceedings is a power which, ought to be exercised sparingly,
and only in exceptional cases"6, a stance that has been cited with approval in
many Ugandan cases.

There are a number of cases that have discussed the circumstances under which
and the considerations for criminal proceedings to be stayed pending the
determination of the civil suit.

Gadenya J in Uwera Agnes v Uganda7 outlined the considerations that may

have a bearing in exercising the power to stay criminal proceedings. They
include:
5
Criminal appeal no.21 of 2018
6
Kenya Wildlife Service v James Mutembei [2019] eKLR
7
CRIMINAL REVISION NO. 31 OF 2022
 a) exceptional circumstances,
b) presence of two concurrent suits or proceedings, one of which is previous or
filed earlier than the other before any court vested with jurisdiction;
c) The suit or proceedings being between the same parties;
d) The subject matter of the suit or proceedings being directly or substantially
the same;
e) That there is a real danger of the Applicant being prejudiced if concurrent
proceedings are allowed to continue

The rationale for criminal proceedings to be stayed is to avoid instances of

confusing land issues with criminal issues. This is true mainly where the civil
suit is aimed at determining ownership of the land in question more so where
the criminal suit is commenced after the institution of the civil case. In Okello
Chris Otama & Another vs. Uganda8 , court stated that, “issues of land should
not be confused with criminal issues. Claim of ownership is a civil right that
ought to be allowed to be proved in a Civil Court and should never be
criminalized as this would amount to persecution. Land matters have been
criminalized and courts of law are convicting accused persons who have a
Constitutional right to claim what truly belongs to them”.

In Sarah Kulata Basangwa v Uganda9 , the supreme court affirmed the

decision of the court of appeal which stayed proceedings before the anti-
corruption court and held that criminal proceedings cannot be brought against a
party in controversy over land which is pending in a civil suit before high court.
The supreme court however emphasised that pendency of civil proceedings
between parties cannot bar institution of criminal proceedings by the office of
the Director of Public Prosecutions10 .

8
Cr. Case No. 639/13
9
SCCA No.3 of 2018
10
Article 120 of the 1995 constitution
Secondly, some of the land related criminal offences have an ingredient of
ownership or possessory interest which needs to be proved for determination of
the case. This is true for offences such as criminal trespass and malicious
damage to property11. In circumstances where the ownership and hence
possessory rights are in contest before court in a civil matter, it would be
problematic to go ahead with the criminal proceedings as there is a likelihood of
conflicting judgements. In Sebulime Baker v Uganda12, Lady Flavia J, stated
that “any decision given by the trial Magistrate Court on the issue of criminal
trespass over land where the Appellant is the one in occupation and there is an
injunction to maintain the status quo, issued by the High Court would have a
direct bearing on the result of the criminal trail. And if the same issue is
pending before different courts, there is an inherent damage of conflicting
judgments. To avoid such a situation, it is better to stay proceedings of the
lower court till the decision of the Land Division and of the Court of Appeal are
given “

On the other hand, courts have in certain instances declined to grant stay of
criminal proceedings on various grounds.

To start with, the challenge with staying proceedings is that it denies people the
right to litigation. Gikonyo J in Kenya Wildlife Service v. James Muetmbei13
stated that; “Stay of proceedings is a grave judicial action which seriously
interferes with the right of a litigant to conduct his litigation. It impinges on
right to access of justice, right to be heard without delay, an overall right to fair
trial “. Sometimes, the offences in the criminal proceedings are different from
in substance from the land dispute and can be resolved without need for the
question of ownership of land. Malicious damage to property for-example does
not necessarily require proof of ownership of land. What is required is proof of

11
Chapter 32 of the penal code act
12
supra
13
[2019] eKLR
ownership of the property that has been destroyed. Similarly, in Alinda Peter
and others v Uganda14 , the appellants sought stay of criminal proceedings in
the magistrate’s court pending determination of ownership of the land in the
high court. The criminal proceedings in the lower court were for charges on
offences of forgery15, uttering false documents16, fraudulent procurement of a
certificate of title17. Court held that the proceedings in the criminal case on these
charges had nothing to do with the land suit in the high court and it would be
wrong to stay the criminal proceedings. Court in this case also quoted the
persuasive decision of the Indian case of Ramnarian Singh Vs. Mahatan18
where it was stated that, “The principle has been laid down that a criminal case
should not be stayed pending the disposal of a civil suit when the questions
involved are not identical. So far as this principle is concerned, it is settled
beyond doubt that any question of stay cannot arise unless the points involved
in both the proceedings are identical”. It therefore follows that it would be
wrong to stay criminal proceedings more so where the matters in the criminal
and civil proceedings are different.

Also, criminal cases and civil cases have different burdens of proof and
therefore there is little bearing that a criminal trial may have on civil
proceedings arising from the same facts of a land dispute. This position was
buttressed in Zagyenda Vs Uganda19, where Mukasa J highlighted the
difference between civil and criminal proceedings thus: “there is a clear
distinction between civil and criminal actions. The Civil proceedings determine
civil litigant’s claims or liabilities and the standard of proof is on the balance of
probabilities. There is a public interest in the criminal proceedings and the
required standard of proof is beyond reasonable doubt. The Civil proceedings

14
CIVIL APPEAL NO. 012 OF 2021
15
S. 342 and 347 of the penal code act
16
Section 351 of the penal code act
17
Section 190(1) of the penal code act
18
1962 CrilJ 661
19
HCT Criminal Appn No. 11 of 2020
are individualistic in nature while the criminal proceedings are public in
nature. Administrative policy therefore gives priority to the public interest in
law enforcement.” Court allowed both the criminal and the civil proceedings to
continue without staying the other and the position was confirmed on appeal by
the Court of Appeal.

In a nutshell, the power to stay proceedings in a magistrate’s court due to

pending suits elsewhere arsing from the same set of facts is coined in section
209 of the magistrates’ courts act. However, the section is mandatory and
somewhat ambiguous. In addition, there is no clear-cut provision in the law
governing the stay of criminal proceedings for pursuance of civil proceedings
more so in land matters. Courts have laid down a set of considerations to infirm
the decision whether to stay proceedings and each case is considered on its own
merits in the interest of justice for the parties involved as discussed.