[2024] UGCA 127

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBALE

[*Coram: Egonda-Ntende, Gashirabake & Kihika, JJA*]

### CRIMINAL APPEAL NO. 133 of 2018

(Arising from High Court Criminal Session Case No.0137 of 2013 at Tororo)

#### **BETWEEN**

| Egesa Henry $==$ | $==$ Appellant No.1 | |-----------------------------------------|---------------------| | Bogere B. Bernard====================== | $=$ Appellant No.2 | | Okuma Pius $====$ | $=$ Appellant No.3 |

### AND

Uganda= =Respondent

(An appeal against the judgment of the High Court of Uganda [Kawesa, J] at *Tororo delivered on* $29$ ^th *May* 2015)

#### JUDGMENT OF THE COURT

#### **Introduction**

- This is an appeal against conviction and sentence. The appellants were $[1]$ convicted, on 29^th May 2015, by the High Court of Uganda (Kawesa, J.), of the offence of murder contrary to sections 188 and 189 of the Penal Code Act. The particulars of the offence were that on $22^{nd}$ -23^rd May 2012 the appellants at Winn and John Primary School located at Solo village in Busia district unlawfully caused the death of Juma Richard. - On count 2, the appellant no.1 was charged with aggravated robbery contrary $[2]$ to sections 285 and 286 (2) of the Penal Code Act. The particulars were that Egesa Henry in the night of the 22^nd -23^rd of May, 2012 at Winn & Joan Primary School in Solo A village, in the Busia District stole a phone INOVA TE dual Sim Serial No. IMEI: 356030180087923, IMEI: 352751019523267

Page 1 of 17

with MTN line 0779765688 from Juma Richard and at or immediately before or immediately after the said robbery caused the death of the said Juma Richard. He was convicted as charged of count 2.

- t3] The learned trial judge sentenced all the appellants on count I to a term of imprisonment of 25 years. On count 2, the appellant no.l was sentenced to 25 years' imprisonment to run concurrently with the sentence for count l. - t4] The appellants have appealed against the conviction and sentence on the following grounds, - That the learned trial judge erred in law and fact when he concluded that the appellants participated in the killing ofthe deceased basing on unsatisfactory circumstantial evidence to convict the appellants hence occasioning a miscarriage of justice. - 2. That the learned trial judge erred in law and fact when he rejected the appellants delence of alibi basing on unsatisfactory circumstantial evidence. - 3. That the learned trialjudge erred in law and fact when he held that the prosecution proved beyond reasonable doubt that Egesa Henry participated in aggravated robbery of the deceased's phone. - 4. That the learned trial judge erred in law and lbct when he failed to deduct the time the appellants spent on remand thereby imposing an illegal sentence of 25 years leading to a miscarriage of justice.' - t5l The respondent opposed the appeal against conviction and conceded to the appeal against sentence.

## Submissions of Counsel

t6l Mr Mbalire Muhammad appeared for the appellants while Mr Ssemalemba Simon, Assistant Director of Public prosecutions, in the Office of the Director of Public Prosecutions appeared for the respondent. Both counsel filed written submissions which they relied upon at the hearing of this appeal.

- Ul Counsel for the appellant in his submissions, submitted that it is a well- settled principle that on first appeal, the parties are entitled to obtain from the appellate court its own decision on issues of the fact as well as of law. He referred to Oryem Richard v Usanda t20031 UGSC 30 and Henry Kifamunte v Uganda tl998l UGSC 20. - t8l With regard to conviction, Mr Mr Mbalire Muhammad submitted that there was no direct evidence of a witness who saw the appellants kill the deceased. The trial judge based his conviction on circumstantial evidence. Counsel for the appellants relied on Bogere Moses v Ueanda [998] UGSC 22 where the supreme court stated what it means to place the accused at the scene of crime. Counsel for the appellants also relied on Janet Mureeba & 2 Ors v Uganda t20061 UGSC 7 where the Supreme Court relied on the principle laid out on Simon Musoke v R il957] EA 715 where it was held that in a case depending exclusively on circumstantial evidence, the court, before deciding upon a conviction, must find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that ofguilt. - t9] Counsel for the appellants contended that there was no evidence on court record to show that the appellants participated in the murder of the deceased. He submitted that the trial judge relied on the evidence of PW2, PW3, PW4 and PW5 that there were previous threats by the appellants to kill the deceased and concluded that they formed a common intention to eliminate the deceased. - [0] Counsel for the appellant submitted that the evidence of previous threats was hearsay evidence. He argued that the trial court shouldn't have relied upon it. He relied on Waihi & Anor v Uganda t I 9861 EA 278 at pase 280 where court laid out the circumstances under which evidence ofprevious threats or ofan announced intention to kill is admitted against a person accused of murder. - [ 1] He submitted that DW2 stated in his testimony that the deceased went to his home and left his phone charging. He met PWI the next morning, who informed him that the deceased was killed at his workplace. DWI and PWI then moved together to school but found when the dead body had been taken to the Red Cross. They went to the Red Cross, where they found the director of the school and wife of the deceased and joined them in preparation for burial.

- Uzl Counsel for the appellants contended that the appellant no. I was connected to the offence because he was in possession of the phone of the deceased. He argued that the issue for determination is how DWI got the phone from the deceased. Counsel for the appellant submitted that the Prosecution adduced evidence of PW3 who testifled that he was saw DWI with the deceased at school that evening, he left the school and the deceased locked himself inside. He contended that PW3 only identified DWI in the dock after seeing him. He further contended that PWl claimed to have contacted the deceased on fateful day but the call data wasn't extracted to confirm that the two talked before the deceased met his death. - [3] He submitted that the appellant no.2 did not participate in the crime. He further submitted that the appellant no.2 stated in his testimony that he was arrested with his father, Wafula Kefa, by a mob while buming charcoal in the forest and taken to the trading centre where the police picked them. He argued that the testimony of appellant no.2 was corroborated with that of the appellant no. 3who testified that while at home on 23'd May 2012, the mob went home asking for his father and his mother informed them that he was in forest thinking that they were forest officers. He further argued that the police officers failed in their dufy when they did not go ahead to find out whether indeed the appellants were buming charcoal. - ^Il4] Counsel for the appellants submitted that prosecution failed to prove participation of the appellant no.3 in the murder of the deceased. He submitted that the appellant no. 2 stated in his testimony that he was found home with his mother by a group of people who were looking for his father and CID arrested him so that he could help them get his father. He argued that the if the appellant no.2 and his father were hiding, they wouldn't have informed the appellant no. 3 and his mother where they were going. He submitted that there was no evidence pointing to the participation of appellants in the murder of the deceased other than the threats made by the appellants to kill the deceased. - [5] Counsel for the appellants submitted that the fact that the appellants gave un sworn evidence has no bearing on their guitty. He submitted that the burden of proof is upon the prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred to Simon Musoke V R (Supra) where it was held that it is necessary before drawing an inference ofthe accused's guilt

from circumstantial evidence to be sure that there were no co-existing circumstances which weaken or destroy the inference.

- $\lceil 16 \rceil$ Counsel for the appellants concluded that the evidence as was adduced by prosecution is insufficient to prove that the appellants participated in commission of the offence of murder and common intention in the commission of the crimes by the appellants. He relied on Obwalatum Francis y Uganda Supreme Court Criminal Appeal No. 30 of 2015 for the proposition that where there is doubt, it has to be resolved in favour of the accused person. - On the appeal against sentence, counsel for the appellant submitted that the $[17]$ failure by the trial judge to deduct the period appellants spent on remand makes the sentence imposed illegal. He relied on Kyalimpa Edward v Uganda Supreme Court Criminal Appeal No. 10 of 1995 (unreported) which laid down the principles under which an appellate court can interfere with a sentence imposed by the trial court. He referred to Rwabugande Moses v Uganda [2017] UGSC 8 for his submission that the requirement of arithmetical reduction of the period spent on remand from the sentence imposed by the sentencing court predates the promulgation of the Constitution. - $[18]$ Counsel for the appellants relied on Kojooba Vesencia v Uganda [2022] UGCA 177 and submitted that the Supreme Court in Rwabugande case reviewed the existing legal regime to wit the constitution and sentencing guidelines. He concluded by submitting that the sentence of 25 years imposed against the appellants was illegal for failure to make arithmetical deduction of the period spent on remand. He prayed that we substitute the sentence with an appropriate sentence after subtracting the time the appellants spent on remand. - In reply to the appeal on conviction, counsel for the respondent submitted that $[19]$ there was irresistible circumstantial evidence to show that the appellants participated in the murder of the deceased. He submitted that PW1 stated in his testimony that the Kefu Wafula had a land dispute in 2010 which was resolved by LC III in favour of the deceased. He further submitted that the appellant no.2 stated that "he cannot be in our land unless he is dead" and the appellant no.3 "unless our father did not spend money to buy the said land somebody must die". - He relied on <u>Kyalimpa Appolo v Uganda</u> Court of Appeal Criminal Appeal $[20]$ No.560 of 2014 (unreported) for the submission that the learned trial Judge properly found that there was ample circumstantial evidence to convict the 3

appellants on the charge of murder. He contended that the trial Judge considered the earlier threats made by the appellants no. 2 and no.3 to the deceased and evidence of possession of the deceased's phone which was found with the appellant no.2. He submitted that the learned trial Judge cannot be faulted on his findings.

- Counsel for the respondent contended that the evidence of PW1, PW2, PW3 $[21]$ and PW4 was to the effect that the deceased's phone was found in possession of the appellant no.1 the following morning of the death of the deceased. He argued that the learned trial Judge properly found that the appellant no.2 was found with the phone of the deceased immediately after his death. He contended that the appellant no.1 did not offer a reasonable explanation as to how he came into possession of the deceased's phone. - On the appeal against of sentence, counsel for the respondent relied on $[22]$ Kyalimpa Edward vs Uganda (supra) for the principles under which an appellate can interfere with a sentence imposed by the trial court. He referred to Rwabugande v Uganda (supra) for his submission that a sentence arrived at without considering the period spent on remand is an illegality as it contravenes article $23(8)$ of the Constitution. - Counsel for the respondent submitted that trial Judge did not consider the $[23]$ period spent on remand by the appellants. Counsel for the respondent prayed that this court dismisses the appellants' appeal against conviction and imposes an appropriate sentence against the appellants.

## **Analysis**

- [24] As a first appellate court, it is our duty to review and re-evaluate the evidence adduced at the trial and reach our own conclusions of law and fact, bearing in mind that this court did not have the opportunity as the trial court had to hear and see the witnesses testify and observe their demeanour. See Rule 30 of the Court of Appeal Rules; Pandya v R [1975] E. A 36; Kifamunte Henry v Uganda (supra) and Bogere Moses v Uganda (supra). - The facts of the case, according to the prosecution, are that the deceased had $[25]$ a land dispute with Kefa Wafula (A1) in respect of a plot of land which he bought located in Buhohe trading center from Kefa Wafula, who was his brother-in-law. The deceased reported the matter to the area LC, who adjudged the case in favor of the deceased. Kefa Wafula was dissatisfied, and

he appealed to the Chief Magistrates of Busia via Civil Appeal No. I 3 of 1995, which confirmed the judgment of the LC and ordered Kefa Wafula's eviction from the suit land. Immediately Kefa Wafula (A I ) was evicted. On May 22, 2012, the deceased reported as usual for work as a watchman at Winn & Joan Primary School. The body ofthe deceased was discovered lying in a pool of blood in the school compound by a pupil on May 23, 2012. The deceased was examined and found to have multiple cut wounds on the skull with associated crush fractures on the right parietal and occipiful bones. The cause of death was found to be acute brain injury secondary to violent trauma.

[26) The matter was reported to Busia Police Station by a teacher at Winn & Joan Primary School. The deceased's phone, an INOVA make, Dual Sim, Serial No. [MEI: 3560301 80087923 and, IMEI: 35275 1019523267, with MTN tine 0779-765688, was tracked and found with the appellant no.l. Kefa Wafula and the appellant no.2 were found in Busitema Forest and were arrested by residents of the deceased's village.

# Grounds 1,2 & 3

- l27l The appellants contended that trial judge relied on the evidence of PW2, PW3, PW4 and PW5 that there were previous threats by the appellants to kill the deceased and concluded that they formed a common intention to eliminate the deceased. - [28] During hearing the prosecution presented 5 witnesses. PWI Aggrey Wejuli stated in his testimony that the deceased bought land from Kefa Wafula" but Kefa Wafula refused to hand over the land. They litigated from LC I level up to court and the matter was resolved in favour of the deceased, whereupon an order of eviction was issued against Kefa Wafula. On 3'd May 2012 Kefa Wafula, who was in the company of the appellant no.3, met the deceased with PWI and told him, "You want us to run... but we shall see who will win." - l29l PW I was informed by a neighbour that his brother had been killed. He moved to Winn and Joan Primary School but found when the body had been taken to the mortuary. He stated that he last talked to the deceased on the phone on 22d May 2012 at 9:00 p.m. However, on getting the news of his brother's death, he called the deceased's phone number and the appellant no. I picked it. He confirmed that the deceased had been with the phone for one year and retrieved the receipts on which the deceased bought the phone from the

deceased's home. While at the police station, the appellant no.1 insisted the phone was his.

- t30l Upon cross-examination, PWI stated that he did not know the shop which issued the receipt. He was not staying in the same place with the deceased. He told the appellant no. I to go to the police. - t3l I PW2, No. 24813 Det. Sgt. Emodu David, stated in his testimony that on 23'd May 2012, he visited the scene of the crime and found the body of the deceased lying in the compound of Winn and Joan Primary School. - [32) He conducted investigations at Buhobe village and found out that there was ^a land dispute between the deceased and Kefa Wafula. which was resolved in favour of the deceased by the LC. He traced for Kefa Wafula and the appellants, but they were not there in their homes at Butongi village. He talked to the LCs and villagers, who agreed to help in the search for them. As a result ofthe information he received from PWI he tracked the deceased's phone and recovered a phone with silver red and black behind from the appellant no.l. PWI produced a receipt bearing the name of deceased and a serial number EMEI356030 I 80087923 / M just like the one in the phone recovered from the l '' appellant. The receipt was admitted in evidence as Exh. P6. - [33] On the same day, he re-arrested Kefa Wafula and the appellant no.2, who had been arrested by the villagers. - [34] PW3 Balaza Wyclift, a former teacher of Winn and Joan Primary School, stated that he was at Winn and Joan Primary School on 22nn May 2012 in the evening for preps with the children up to 9:30 p.m. While leaving, the deceased approached him at 9:30 p.m. and asked him for something to eat. He gave him Ug Shs. I 000 and he bought him a chapati. The deceased locked the gate and PW3 left. The next moming, the leamers informed him that the gate was closed. They tried knocking, but there was no response. He gave them a copy of the keys, which they used to open. He heard them crying that the watchman was murdered. He went to the scene and observed that the deceased was cut on the head. The body had another wound on the head showing he had been hit. He reported the matter to the police. - [35] He saw the deceased with a phone on the fateful night. It was long, red and black, in colour and he had been with it for a period ofone year. He stated that he saw the deceased with one of the people in court wearing red (appellant

no.1). He further stated that it was his first time to see the appellant no.1 and he was not a workmate. He confirmed that the deceased had a land dispute and used to ask for permission to go and sort it out in court.

- Upon cross-examination, he stated that he had never seen or talked to the $[36]$ person he met with the deceased. The person was wearing a red shirt. He further stated that the person whom the deceased was with had left at the time he asked for food. - [37] PW4 Okello Ibrahim, LCII council member, stated that the deceased instituted a suit against Kefa Wafula before LCII and on 8^th May 2010 they decided the matter in favour of the deceased. Immediately after their judgment, Kefa Wafula said, "We are in a race of 100 meters, but we shall see who wins the race." The appellant no.2 said, "He cannot be in our land unless he is dead." and the appellant no.3 said, "Unless our father didn't spend money to buy the said land, somebody must die." The deceased died on 23^rd May 2012. - PW4 went to the deceased's home and found the police at the scene of the $[38]$ crime asking for the whereabouts of the appellants, Kefa Wafula and the appellant, no.2. Meanwhile the appellants no.1 and no.3 had been arrested. They found Kefa Wafula and the appellant no.2 at the boundary of the forest. They ran inside the forest; pursued them and got them arrested. They then called the police to pick them up. - $[39]$ Upon cross-examination, he stated that Kefa Wafula and the appellant no.2 were found in the forest but they were not burning charcoal. He arrested Kefa Wafula, and Wafula Ali arrested the appellant no.3. - [40] PW5 No. 25956 Det. Cpl. Kyakal Victor, the exhibit store man at Busia police station, stated that he received an Innova mobile phone on 23^rd May 2012. Det. Sgt. Engor brought the phone as an exhibit for murder. PW5 registered it and gave it a serial number after cross-checking the serial numbers on the phone with those he had been given. He found that they corresponded. - [41] The appellants gave their evidence, not on oath, in their defence. - [42] DW1, Kefa Wafula, stated that the deceased was his friend, neighbour at Mutangi village and member of his church. On 22^nd May 2012, he slept at his home. He picked up his bags and bicycle and went to Busitema Forest on 23^rd May 2012, at 6:00 a.m., where he worked. He called his son (appellant no. 2) to help him carry the big bag of charcoal and came out of the forest. They found people in an ambush. They feared thinking they were forest officers because they sometimes arrested them. They tried to run, but they surrounded them, arrested them, and began beating them. They took them to the trading centre. Police officers were called in and they re-arrested them. They were subsequently charged with the murder of the deceased.

- [43] Upon inquiry by the court, he stated they went to the forest on 23'd May ²⁰¹² in the morning at around 6:00 a.m. and his son, appellant no.2 joined him. He had a bicycle when they came out of the forest. He was arrested with the charcoal and the bicycle. The charcoal was left there. He admitted that he refused to take the witness where he was buming charcoal. He denied ever threatening the deceased. He admitted to have had a land dispute with the deceased, and he vacated the land. - l44l DW2, Egesa Henry stated that the deceased was his friend and neighbour at Mutangi viltage. On 22nd May 2012, he went to his workplace, but left early because he was not feeling well. He went back to Sofia and bought medicine from a clinic. While sleeping at midday, his friend Juma Richard (deceased) entered his house. He took a rest and left at 4:00 p.m. He left his phone behind, and told DW2 to take it to his father for charging. He stayed in the house the whole day and never retumed to work. He charged the phone, but the deceased did not pick it. - [45] On 23'd May 2012, he put the phone in his pocket and started moving. He met PW I and Mukwana John, a boda boda rider, who informed him that his friend was dead. He went with PW1 and Mukwana John to school. While at school, he checked the phone and saw that Mageni, the director of the school, was calling and informed him that he was at school. They went to Red Cross with PWI to check on the dead body. He asked the director about the death of the deceased who informed him that the children found deceased dead in the moming. White stillthere the wife of the deceased arrived, she informed them of how she was going to arrange burial. Then the director assigned him the duty of organising the coffin. The police vehicle arrived and he went with the body up to Butongi and he assisted in carrying the dead body. He was then arrested. They asked for the deceased's phone and took him to the police station. He was eventually charged with the murder of the deceased.

- 146) Upon inquiry by the court, he stated that the phone belonged to the deceased and denied the allegation of buying the phone from Kenya. He denied also visiting the deceased on the fateful night. - l47l DW3 Bogere Bemard Balikowa stated in his testimony that on 23'd May 2012, his father, Kefa Wafula, called him to assist him in packing charcoal. They packed the charcoal and tied it to the bicycle. While coming out of the forest, they found people in an ambush, and they got scared. He further stated that they only feared to take the police where they bumed charcoal. He further stated that they came to know the reason why the mob arrested them while at the police station. - [48] DW4 stated that on May 2012,, at 8:00 a.m., a group of people went to his house, asking where his father was, and he told them that he had gone to bum charcoal. They asked for his mother, and he showed them. They asked her where the husband was, and she told them that he was in the forest. They were arrested and taken to the centre. They called Busia police, and the police officers picked them up and took them to the police station, where they informed them that they were being held on charges of murder of the deceased. - [49] Upon inquiry by the court, he stated that they informed him that the deceased was Juma Richard, whom he knew as his uncle. He had met the deceased a month ago and previously, at the time of hearing the LC II's judgment. He denied having said the words stated by the prosecution witnesses. He maintained that his father went to the forest to bum charcoal, and afterwards, the CID said, let us go with his son so that the father comes. While at the Busia police post, a police officer informed him that they were keeping him so that they could get his father. The father was taken to the police at 5:00 p.m. but they did not release him. He was eventually charged him with murder. - [50] We note that that this case rests entirely on circumstantial evidence. There was no direct evidence pointing to the participation of the appellants in the commission of the crime in question. We shall start by setting out the law in regard to circumstantial evidence. In Bvaruhansa Fodri v Ueanda [20041 UGSC 24 the Supreme Court restated the approach courts should take with regard to circumstantial evidence as follows:

'lt is trite law that where the prosecution case depends solely on circumstantial evidence, the court must before deciding upon a conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt.

(See: S. Musoke V R [1958] EA 715 and Teper V R [1952] AC 480).

- [51] PW4, Ibrahim Okello, a local council 2 member, testified about threats uttered by Kefa Wafula and his sons, appellants no.2 and no.3, to kill the deceased. These threats were made on 8^th May 2010, immediately after the council decided a dispute between Kefa Wafula and the deceased over a plot of land, in favour of the deceased. There was no evidence that these threats were reported to the police. - The evidence of PW4 was the only evidence on record against the appellants $[52]$ no.2 and no.3 in respect of the making of the said threats. The appellants no.2 and no.3 denied having made the said threats as alleged by PW4 in their defence. These threats were alleged to have been 2 years before the alleged offence was committed with no evidence that they were repeated. If the said threats were made in the presence of the LC11 court which had just issued a decision it is surprising that no action was taken given the seriousness of the threats. On the other hand, perhaps, it was just assumed that they were made in the heat of the moment. - The evidence of PW1 was that on 3rd May 2012 Al (Kefa Wafula) found him $[53]$ with deceased and told him.

"You want us to run but we shall see who will win." This was on 3.5.2012. No other people were present. Kefa was with Bogere (appellant no.2).

This was taken as a threat. The witness testified apparently in Swahili and his $[54]$ testimony was translated into English. I am not sure if the import of a threat of death was lost in translation but these words do not necessarily amount to a threat of death. If the dispute was ongoing in the courts it may well mean that Wafula meant that he still had hope of winning his action in court.

$[55]$ In determining the weight to be attached to evidence of a threat, regard must be had to a number of factors as was discussed in Waihi and Anor Vs Uganda $(1968)$ E. A. 278 at page 280 by Spry J, in the following words,

> Evidence of a prior threat or of an announced intention to kill is always admissible evidence against a person accused of Murder, but its probative value varies greatly and may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it is spoken bitterly or impulsively in sudden anger or jokingly, and the reason for the threat, if given and the length of time between the threat and the killing are also material. Being admissible and being evidence tending to connect the accused person with the offence charged, a prior threat is we think capable of corroborating a confession.

- [56] In the case under consideration the alleged threats have been denied. They were made 2 years before the deceased was killed. It was on an occasion when presumably tempers were high immediately after the delivery of a judgment by an LC 11 Court, in the presence of the court members. No apparent action was taken on account of the said threats. - Appellant no. 2 was arrested with his father in Busitema Forest where they $[57]$ had gone to make charcoal. Though the prosecution contended that there was no charcoal found with Wafula and the appellant no.2, the appellants stated that they thought they were being ambushed by Forest Officials, and it would not be surprising, if they did not show them, the charcoal. They were only handed over to the police later and it is only then that they learnt of the reason for their arrest. It is not possible to infer from the circumstances of their arrest that those circumstances pointed irresistibly to their participation in the crime with which they were charged. - In the absence of any other evidence linking the persons alleged to have made $[58]$ the threats to the cause the death of the deceased, the evidence of prior threats in this case is insufficient to arrive at the conclusion that the appellants caused the death of the deceased. We find that there was insufficient evidence against the appellants no.2 and no.3 to found a conviction for murder of the deceased. - $[59]$ The case against the appellant no.1 rests on being in possession of a phone established to have belonged to the deceased. It rests on the doctrine of recent possession of stolen property.

- [60] PWI stated in his testimony that on getting the news of his brother's death, he called the deceased's phone number and the appellant no.l answered it. He confirmed that the deceased had been with the phone for one year and produced the receipts on which the deceased bought the phone from the deceased's home. PW1 claimed that the appellant no.1 claimed that the phone was his. - [61] PW2 stated that after getting information from PWl that the appellant no.l was in possession of the deceased's phone. He tracked the deceased's phone and recovered a phone with silver red and black behind from the appellant, who claimed that the phone belonged to him. However, he did not produce proof of ownership. PWI produced a receipt bearing the name of deceased and a serial number EMEI356030 I 80087923 / M just like the one on the phone recovered from the appellant no.2. The receipt was admitted in evidence as Exh. P6. - [62) PW3 stated that he saw the deceased with a phone on the fateful night. It was a long phone with red and black colours. He stated that he saw the deceased with one of the people in court wearing red, (appellant no.1). He further stated that it was his first time to see the appellant no.l and he was not a workmate. - [63] The appellant no.l, in his own defence, denied committing the crime in question. He stated that while sleeping at midday, his friend Juma Richard (deceased) entered his house. He took a rest and left at 4:00 p.m. but left his phone behind, and told the appellant no.1 to take it to his father for charging. He charged the phone, but the deceased did not pick it. The appellant no.l stayed home and never returned to his workplace. On 23'd May 2012, he put the phone in his pocket and started moving. He met PWl and Mukwana John, a boda boda rider, who informed him that his friend was dead. He went with PWI and Mukwana John to the school. - [64) While at school, Mangeni, the Director of the school called on the deceased's phone and he (appellant no.l), informed him (Mangeni) that he was at school. They went to Red Cross with PWI to check on the dead body. He asked the Director about the death ofthe deceased who informed him that the children fbund deceased dead in the morning. While still there the wifb of the deceased arrived, she informed them ofhow she was going to arrange burial. Then the Director assigned him the duty of organising the coffin. The potice vehicle arrived and he went with the body up to Butongi and he assisted in carrying

the dead body. He was then arrested. The police asked for the deceased's phone and took him to the police station. He was eventually charged with the murder of the deceased.

- $[65]$ There are largely 2 versions of what happened regarding the phone of the deceased. The contention by the prosecution is that the appellant no.1 was found in possession of the said phone and claimed that the phone was his. The other version by the appellant no.1 is that it is not true that he claimed that the phone was his. The phone belonged to the deceased, who was his friend, and who brought it the day before to his house and asked him to have the same charged. The deceased left and did not come back to collect the same. He charged the same and remained with it until the following day when he was notified of the death of the deceased by PW1. - The version of the appellant no.1 is undermined by 3 matters. One is the $\frac{1}{2}$ $[66]$ allegation that he claimed that the phone was his to PW1 and PW2. He denies having done so. Secondly PW1 testified that he called the phone at 9.30pm on the evening of 22^nd May 2012 and talked to the deceased. This contradicts the account of the appellant no.1 that at that time the phone was in his possession, in his house, where the deceased had left it. Thirdly it was testified by PW3 that he saw the appellant no.1 with the deceased at the school in the evening of 22^nd May 2012, and that the appellant no.1, left the school, while PW3 was still with the deceased. At the time the deceased had his phone. The appellant no.1 denies having been to the school on that day and time as alleged. - It was not shown that the police recorded a statement from the appellant no.1 $[67]$ soon after his arrest and the recovery of the phone from him. Given the pivotal nature of the importance of how the appellant no.1 came to have the phone belonging to the deceased it is surprising that no statement was recorded from him by the investigating officer or any other officer who may have been assigned the task. If a statement was recorded the prosecution was quiet about it and chose not to adduce it in evidence. - Secondly the investigating officer, PW2, claimed to have tracked the phone $[68]$ when he was informed that it was in the possession of the appellant no.1. What he did exactly was not specified in his evidence. Was he tracking its location? Or was he simply talking to the person in possession of it? Was any attempt made to collect call data on the same? If so, this would have shown the calls made from the phone and the calls received from the phone. Particularly it

would vindicate the account of PW I that he called and talked to the deceased on that phone on the evening of 22"t May 2012.

- [69] The testimony of the investigating officer, apart from stating the date and time he arrested the appellant no.1, is quiet about the place from where he was arrested. This basically leaves the evidence of the appellant no.l uncontested on how and where he was arrested from. In his testimony he moved with PWI first to the school, and then to Red Cross where the body was at the time, and rode on the police vehicle, taking the body to Butongi. This is not conduct that would ordinarity point to a guilty person. - [70] The duty to prove that an accused person is guilty ofthe offence he is charged with lies upon the prosecution and never shifts. The burden must be discharged by proofbeyond reasonable doubt. - [71] In the case before us we are unable to say that the version put forward by the appellant no.l as to how he came by the phone of the deceased has been disproved by the prosecution. It may well be true that the deceased visited him on 22nd May 2012 and left his phone with him for charging, rather than that the appellant no.l must either be the thief of the deceased's phone, or receiver of the deceased's stolen phone and therefore a participant in his murder. - U2) We allow grounds l, 2 & 3 of appeal. We do not find it necessary to consider ground 4 which is against sentence.

## Decision

l73l This appeal is allowed. The conviction of the appellants is quashed. The sentences imposed upon the appellants are set aside. We order the immediate release of the appellants unless they are held on some other lawful.

Dated, signed, and delivered ttris 8{tay of h4, ²⁰²⁴ ick E da- tende Justice of Appeal

C Stopher Gashirabake Justice of Appeal

Page 16 of 1 7

Oscar John Kihika<br>Justice of Appeal $\overline{\phantom{a}}$

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