[2024] UGSC 34

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

( C o r am: O w iny -D o I I o, CI ; Mzo o n dh a; T ib a t e mw a-Ek irikub inz a; Tuhaise; Chibita; llSC)

## CRIMINAL APPEAL NO. 34 OF 2019

GULE SHEIKTWAHA APPELLANT

### VERSUS

UGANDA RESPONDENT

(Appeal from tlrc decision of the Court of Appeal of Uganda at before Musoke, Obura, nnd Mulnnguzi, IJA Knnrynln in Crinrinal Appeal No.491 of ²⁰¹⁴ deliuered on 8tl, August,20-19).

# IUDGMENT OF THE COURT

This is the second appeal filed by the appellant Gule Sheikh Twaha following the dismissal of his first appeal by Court of Appeal.

#### Background:

The background to this appeal is that on 7th August, 2006, five people namely; Oroto Tom Kennedy, Muganyizi Patrick Kateba, Gatale Claudian, Bagonza Herbert and Okiru Charles, were shot at Kobil Petrol Station Bugolobi, in Kampala District, and they died. It was the prosecution's case that Gule Sheik Twaha, the appellant was an employee of Security Group and had been deployed at the said petrol station. At the time of the incident, the appellant had been transferred to the head office though he was unhappv with the transfer. Before the transfer, the appellant had allegedly stolen Uganda Shillings 85,000/= from one of the pump attendants at his duty station and this had caused a lot of animosity

between him and the pump attendants. On the fateful day, in the evening hours, the appellant returned at the petrol station, grabbed a gun from one of his colleagues who was on guard, shot dead the deceased persons named above who were working as security guards and pump attendants respectively. After the incident, the appellant disappeared, and though several telephone calls were made on his mobile phone, he refused to answer the calls. He was later tracked, arrested and charged accordingly. Upon arrest, the appellant confessed to the charges in his charge and caution statement made before Inspector of Police, Kasangaki John, who testified at the trial as PW2. He was indicted of five (5) Counts of Murder contrary to sections 188 and 189 of the Penal Code Act before the High Court sitting at Nakawa.

However, during the trial, the appellant retracted his confession when he alleged that the same had been obtained through torture. Following the retraction, the trial court conducted a trial within a trial and ruled that the confession was not obtained through coercion. Upon trial, the trial court found the appellant guilty, convicted him and sentenced him to imprisonment for life, on each of the counts. Aggrieved with the finding of the trial court, the appellant filed an appeal with the Court of Appeal which upheld the conviction and sentence of the High Court.

Dissatisfied with the decision of the Court of Appeal, the appellant now brings a second appeal to this Court. The grounds of appeal contained in the amended memorandum of appeal are as follows:-

1. The learned )ustices of the Court of Appeal erred in law when they upheld the admissibility of a retracted and repudiated confessiory thus occasioning a miscarriage of justice.

- 2. The learned fustices of the Court of Appeal erred in law in upholding the conviction of the appellant based on weak circumstantial evidence thereby occasioning a miscarriage of justice. - 3. The learned Justices of the Court of Appeal erred in law when they failed to evaluate the evidence in respect of the appellant's defence of alibi and wrongly rejected it. - 4. The learned |ustices of Appeal erred in law when they upheld the sentence of life imprisonment which was manifestly harsh and excessive in total disregard of the mitigating factors.

The appellant prayed that the appeal be allowed, the convictions be quashed, the sentences be set aside and that the appellant be discharged. In the alternative, the appellant prayed that the sentences of life imprisonment be reduced.

### Representation

At the hearing of the appeal, Ms. Awelo Sarah, holding brief for Mr. Mooli Albert represented the appellant while Ms. Ainebyoona Happiness, Chief State Attorney, represented the respondent. The parties filed written submissions which they adopted, initially before the original panel, and later, before the reconstituted panel.

## Appellants Submissions

On ground one, Counsel for the appellant submitted that the charge and caution statement that the trial court relied on to convict the appellant was obtained involuntarily and was wrongly admitted in evidence. Counsel contended that the narration given by some of the victims (Oriku Charles and Bagonza Herbert) before they died contradicted the impugned charge

and caution statement. Counsel argued that the confession statement indicated that the appellant spent three days in custocly without being presented to court as constitutionally required but also points to the fact that the appellant did not say anything in the three days he was under detention. According to Counsel, these facts point to the iikely terrible circumstances of torture that the appellant referred to but which were trivialized by the trial court and the first appellate court. Counsel was of the view that, it was more likely than not that the appellant suffered torture and was forced to sign a confession statement he did not make. Counsel also argued that the appellant was surprised by the medical report which was made to fit the narrative that the prosecution and the Police wanted. To buttress her argument, Counsel cited the of Hassan Kasule Vs Uganda, SCCA No. 10 of 7987 in which this Court observed that given the unsatisfactory features regarding the way the extra judicial statement was admitted in evidence, it would be unsafe to uphold the appellant's conviction.

In that connection, Counsel argued that it was unsafe for the Court of Appeal to uphold the appellant's conviction with such unsatisfactory feafures regarding the way the charge and caution statement was obtained. She accordingly contended that the learned Justices of Appeal erred in law when they admitted the charge and caution statement despite evidence on record which showed that the same had been obtained involuntarily, thus occasioning a miscarriage of justice.

On ground two, Counsel for the appellant argued that the learned Justices of Appeal upheld the conviction of the appellant on the basis of circumstantial evidence that related to blood stained clothes found in the appellant's home. She contended that it was erroneous for the learned

Justices of Appeal to link the blood-stained clothes to the murder as ^a matter of coincidence yet the appellant had explained the cause of the blood stains, which related to a fight he had with his girlfriend. She argued for the appellant that the appellant's clothes should have been subjected to laboratory tests in order to establish the validity of the prosecution's claims, that the failure to do so created doubt in the prosecution evidence which should have been decided in the appellant's favour. To support this argument, she cited the case or' Baitwabusa Francis Vs Uganda, SCCA No. 025 of 2O75, where this Court overturned a decision of the Court of Appeal and acquitted the appellant on the basis that circumstantial evidence was too weak to sustain a conviction.

Counsel further submitted that had the learned fustices of Appeal reevaluated the evidence as a whole, they would not have upheld the conviction of the appellant based on circumstantial evidence as the prosecution evidence was full of inconsistencies and contradictions. Counsel cited the case of Kazarwe Henry Vs Uganda, SCCA No. 17 of 2015 where this court held that it is not enough for the court to merely remind itself of the duty but the reappraising has to clearly come out by analyzing the whole evidence and subjecting it to fresh scrutiny. According to the appellant, the Court of Appeal failed to carry out this duty.

On ground three, Counsel for the appellant submitted that the appellant put up the defence of alihi which the Court of Appeal rejected in light of the testimonies of PW1 and PW5, and found that the prosecution had placed the appellant at the scene of crime. Citing the cases of Bogere Moses & Another Vs Uganda, SSCA No. 07 of 1997 and Opolotfustine and Another Vs Uganda l2o19l SCCA No. 31 of 20d4, the appellant's

counsel argued that where the prosecution places the accused at the scene of crime and the defence puts up an alibi, it is incumbent on court to evaluate both versions judicially and give reasons why one version and not the other is accepted. She argued that it is a misdirection to accept the one version and hold that because of the acceptance per se, the other version is unsustainable.

Counsel further argued that the learned Justices of Appeal rightly observed that the leamed trial Judge did not evaluate the defence evidence with thoroughness or at all; that what was ironic however, is that the same Justices having pointed out the anomaly, went ahead to reject the appellant's n/lbl on the basis of the testimony of PW1 who merely identified the appellant as her student, and PW5 who recorded the charge and caution statement which the appellant had retracted. Citing the case of Mohamed Mukasa Vs Uganda, SCCA No. 27 of 1995, Counsel also argued that where an alibi raises reasonable doubt as to the guilt of the accused, it is sufficient to secure an acquittal. Counsel further cited the case of Mamudini Mukama Vs Uganda, SCCA No. 35 of 1995, where this Court observed that the accused has no burden to prove his alibi.

The appellant thus implored this Court to find that the learned Justices of Appeal erred in law when they failed to evaluate the evidence regarding the appellant's defence of nlibi and wrongly rejected it, that had they done otherwise, the appellant ought to have been acquitted which this Court should do.

On ground four, Counsel for the appellant argued that upcn conviction by the trial court, the appellant was sentenced to imprisonment for life on each of the five counts to, run concurrently, and yet he had spent seven

years and nine months on remand, which period was not considered by the hial court at the time of sentencing. She further argued that the trial court did not take into consideration the mitigating factors, that is, that the appellant was a young man at the time he committed the offence, that he was remorseful, that he was a first time offender and was undertaking his Advanced (A') Ievel studies, and that he generally exhibited good behavior while in custody where he acquired several academic qualifications among which were the'A' level Cerfificate, Certificate in Small Scale Business Management (CESBM) and a Diploma in Small Scale Business Management from Makerere University Business School.

The appellant thus argued that the Court of Appeal misdirected itself because in 2006 when the offence was committed, the law provided for imprisonment for life as 20 years' imprisonment, as per the Prisons Act, and that the holding of the Court of Appeal was inconsistent with Article 23 (8) of the Constitution which prohibits severe punishment than that described by law at the time of commission of the offence. Counsel also argued that had the leamed Justices of Appeal taken into consideration the mitigating factors, they would have given the appellant a lesser sentence. Citing the case of Mawazi Mallinga Vs Uganda, SCCA No. 43 of 20/.8, the appellant submitted that this Court set aside the sentence of imprisonment for life on the ground that factors in mitigaion were not taken into account, and accordingly sentenced the convict to 21 years in prison having deducted the period spent on remand.

The appellant thus invited this Court to take into account the aforernentioned mitigating factors and set aside the sentence of imprisonment for life, substituting it with a lesser sentence; and that in

doing so, this Court should take into account the period the appellant has spent on remand.

### Respondent's submissions

On ground One, learned Counsel for the respondent, in agreement with the Court of Appeal, argued that the said court rightly re-evaluated the evidence when it upheld the leamed trial Judge's finding that the appellant's confession was voluntary. Counsel submitted that the evidence of PW1 and PW5 sufficiently corroborated the appellant's confession and, when considered together, connected the appellant with the commission of the offence. In support of this argument, Counsel cited the case of Tuwamoi Vs Uganda [795\ EA; Matovu Musa Kassim Vs Uganda, SCCA No. 27 of 2002; and Festo Androa Asenua & Another Vs Uganda, SCCA No. 01 of. 1998, where it was observed that a trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution, and must, before founding a conviction on such confession, be satisfied that in all circumstances of the case, the confession is true. That the same standard of proof is required in all cases, and, usually, a court will only act on the confession if it is corroborated in material particular by independent evidence accepted by court, but corroboration is not necessarily required in law, and the court may act on the confession alone.

Counsel for the respondent thus argued that on the basis of the above holding, the court can find a conviction on a confession alone if:-

- It is satisfied that after considering all material points and the surrounding circumstances that it is true and;

- If satisfied though not necessary in law that a confession was corroborated in material particular by independent evidence accepted by court.

As to whether the confession was obtained through torture, it was the submission of the respondent's counsel that both the trial court and the Court of Appeal found that the confession was not obtained through torture. Counsel argued that the trial court conducted a trial within a trial and, after considering the evidence before it, it found that there was no torture, that the confession was recorded voluntarily, and that this was rightly upheld by the learned Justices of Appeal. Further, Counsel for the respondent submitted that the appellant was medically examined shortly after he had recorded his charge and caution statement and the medical report revealed that he had no injuries on his body. The respondent thus concluded that the issue of torture was raised as an afterthought in an attempt to deny what he had stated in his charge and caution statement and that this court should find that the confession of the appellant was voluntarily recorded and true.

On ground two, Counsel for the respondent submitted that the pieces of circumstantial evidence pointecl out by the appellant's counsel were properly addressed by the Court of Appeal at page 12 of th,-' judgment of that Court. She contended that though the blood-stainecl clothes were not subjected to laboratory analysis, the fact that the appellant missed examinations, when considered together with his confession, implicates him with the shooting. Citing the case of Simon Musoke Vs Republic (1958) EA 7l5, Counsel for the respondent argued that the two pieces of evidence were incompatible with the innocence of the appellant. Counsel

invited this court to uphold the decision of the Court of Appeal and dismiss ground two of the appeal.

On ground three, Counsel for the respondent argued that though the Court of Appeal found that the learned trial Judge did not properly evaluate the appellant's evidence regarding the defence of alibi, the same did not occasion a miscarriage of justice since the Court of Appeal subjected the evidence to a thorough re-evaluation and rightly rejected the appellant's nlihi. Counsel urged this Court to also hold as such and dismiss ground three of the appeal.

On ground four, Counsel for the respondent submitted that this ground of appeal is prohibited by section 5 (3) of the Judicature Act (cap 13) which provides that in the case of an appeal against a sentence and an order other than that fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence. To support this argument, Counsel cited the case of Bonyo Abdul Vs Uganda, SCCA No. 07 of 2011 and Musede Nankya Vs Uganda, SSCA No. 70 of 2078, where this Court held that section 5 (3) of the Judicature Act prohibits a second appeal on severity of sentence, and that the appellant had no right of appeal to this Court against sentence on grounds of severity.

As to whether the sentence of life imprisonment is amenable to Article 23 (8) of the Constitution, Counsel for the respondent argued that this Article only applies where the sentence is a term of imprisonment, that is, ^a quantified period of time which is deductible, and not a sentence of life imprisonment. Counsel cited Magezi Gad Vs Uganda, SCCA No. 17 of 2074 to support this argument. He further submitted that in the instant appeal, the appellant was sentenced by the trial court to imprisonment for life, which was upheld by the Court of Appeal, and that the period on remand was not in issue. Counsel contended that, before confirming the sentence of the trial court, the Court of Appeal considered both the mitigating and aggravating factors, just like the trial court did. Counsel thus submitted that the sentence passed by the trial court and confirmed by the Court of Appeal should be upheld by this Court, that ground four of this appeal should equally fail, and that since all the grounds of appeal fail, the appeal should be dismissed.

## Consideration by the Court

This Court's jurisdiction as a second appellate court is limited to considering questions of law or mixed law and fact that were before the first appellate court. This Court is not required to re-evaluate the evidence like the first appellate court. This position is well stated under Rule 30 (1) of the Judicature (Supreme Court Rules) Directions, and in Kifamunte Henry Vs Uganda, SCCA No.10 of 7997.

In line with the foregoing legal principle, this Court will only interfere with the decision and conclusion of the Court of Appeal if it appears that, as a first appellate court, it failed to re-evaluate the evidence as a whole.

In ground one of the appeal, the appellant faults the Court of Appeal for upholding his conviction on the basis of a retracted and repudiated confession. It was the argument of the appellant that the charge and caution statement that the trial Court relied on to convict him was not obtained voluntarily and was wrongly admitted in evidence. The respondent however argued otherwise, that the confession was recorded voluntarily and the same was rightly upheld by the Court of Appeal.

In re-evaluating the evidence regarding the charge and caution statement made by the appellant as to whether the same was obtained through torture, the Court of Appeal, at page39 - 40 of the record of appeal (pages 8 & 9 of their judgment), made the following observation:-

"Tlrc learned trinl ludge gatte a detailed annlysis of the medical report u,lich was nmde by the exanining plrysician regarding tle appellant and found that had tlrc accused been assnulted in police custody as le alleged, the plrysician llould htn)e stated so in his report after examining tlrc appellant tlrc nredical report in issue ruas useful ,n determining tlrc allegations by the nppellnnt tlmt he lmd been assaulted itt custody ns it slnuld lmtte cnptured any injuies lrc lmd sustnined during tle torture. Tlu learncd tial ludge runs justifed in relying on it, and we fnd no reason to fault lrim on the nmtter".

This Court has previously guided on the admissibility of a retracted and or repudiated confession. In all cases where a trial court is to accept a confession which has been retracted or repudiated, or both retracted and repudiated, it must do so with caution, and must, before founding ^a conviction on such a confession, be fully satisfied in the circumstances of the case that the confession is true. See Tuwamoi Vs Uganda (supral and Matovu Musa Kassim Vs Uganda, SCCA No. 27 of 2OO2.

In Amos Binuge & Others Vs Uganda, SCCA No.23 of 1989, this Court held:-

" lt is trite thnt wlen the admissibility of an extra-judicial stntement is challenged, tlrcn tlrc objectitrg accused ntust be giuen a clmnce to estnblish by ettidence, lis grounds of objectiott. This is done tfuough a trial within n trial.. The purpose of a tial zoithin a tial is to decide upon tlrc euidence of both sides, u,lrctlur tlrc confession slrould he admitted."

We have taken time to review the record of appeal. At page 70 to 79 of that record, it shows that the learned trial Judge conducted a trial within a trial. In his ruling on the trial within a trial at page 80 of the record of appeal, the trial Judge ably highlighted the principles governing the admission of a retracted/repudiated confession. The trial Judge then, at pages 80, 81 and 82 of the record of appeal, held as follows:-

......nnd nccording to the narratite of tlrc accused, suclr systemntic torture as detailed would luute no doubt disfgured or mainrcd him or caused griettous harm if not nmking lrinr collapse altogetler. Tlis court doubts that there las etter such lengtlry torture, particularhl as suhmitted hy counsel for tlrc stnte tlnt uhen accused ruas examined on tlrc 12il, dny of August, just a day or truo after the alleged torture, the medical exanrination report on record on police fonn 24 zoas negatitte uith regard to the accused's allegcd lcngtlry and elaborate torture...... In tlrc absence of any other nrcdical etidence to tlrc contrary, this court cannot lrcld ot\rcnpise................. Tlis court in tlrc circurustances fnds nnd holds tlmt tle Police Officer ulto was abooe tlu rnnk of Assistant lnspector of Police properly ndministered the caution to tlrc accused zoho signed after reading the charge to lim and so tlrc confession statement was properly recorded in n room nt linjn Rond Police Station in a language perfectly understood by tlrc acatsed ns lrc was of Senior Six (" A Lepel). I according4l allow the confession and tlrc clmrge and cnution statement to be tendered in ns prosecution exlibit. The same is hereby nnrked P".

In its judgment, the trial court considered other evidence which it observed corroborated the conlession statement of the appellant before convicting him. Specifically, the evidence of PW I Birungi Sheila, who was the teacher of the appellant at Crane High School in Kitintale where he

was studying while at the same time working with Security Group (U) Ltd, who testified that on the fateful day of 7th August, 2006, the appellant did not attend school and missed the Mock exam. Also considered as corroborative was the testimony of P\N2 Detective Inspector Kasangaki John who recorded the charge and caution statement from the appellant. The trial court also considerec-l as corroborative evidence the testimony of PW3 Lakony Clayton Omona who the appellant told he was being frustrated and wanted to show his dissatisfaction and that he was annoyed; which he repeated five times. The appellant then told PW3 that he decided to shoot the people at the petrol station. Finally, the trial court considered the testimony of PW5 Okware Zadok who conducted a search at the house of the appellant and recovered a long-sleeved shirt with blood stains, in addition to a pair of jungle boot with mud on it. The trial court emphasized that the long-sleeved shirt with blood stains and a pair of jungle boots with mud were pieces of circumstantial evidence connecting the appellant to the murder.

The Court of Appeal re-evaluated the above evidence including the testimony of PW1 Birungi Sheila, the appellant's Fine Art teacher and Director of Studies who testified that the appellant had missed exams on the fateful day; and that of PW5 who conducted the search of the appellant's premises and recovered a blood-stained shirt and muddled boots. Although the Court of Appeal observed that the stains on the shirt were not subjected to laboratory analysis, it concluded that the evidence, taken together with the confession statement, connected the appellant to the offence, and that it was not a coincidence that blood-stained clothes and muddled jungle boots were found in the appellant's house in the

immediate aftermath of the shooting. The Court of Appeal observed, at page 47 of the record, that:-

"Accordingly, ue find tlnt the prosecution etridence (especially tht eztidence of PW1 and PWS) tended to inrylicnte tlu appellant nnd suffciently corrobornted tlw nppellant's confession statement ns discussed nbooe."

If a court is satisfied that the statement is properly admissible and accordingly admits it, then when that court is arriving at its judgment, it will consider all the evidence before it and all the circumstances of the case, and in doing so, will consider the weight to be placed on any confession that has been admitted. In assessing a confession, the main consideration at this stage will be whether it is true. And if the confession is the only evidence against an accused, then the court must decide whether the statement establishes his guilt with that degree of certainty required in a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statements at the trial, then this is part of the circumstances of the case which the court must consider in deciding whether the confession is true. See Tuwamoi Vs Uganda (supru).

As a first appellate court, the Court of Appeal is duty bound to re-evaluate the evidence of the trial court and determine whether the trial court considered the totality of evidence before deciding whether the essential elements of a crime had been proved beyond reasonable doubt.

The charges preferred against the appellant related to the murder of five people at a petrol station at Bugolobi. The prosecution was therefore under duty to prove the fact of death of each of the deceased persons, the

unlawfulness of the homicide, whether the death was caused with malice aforethought, and participation of the accused person in the unlawful killing of the deceased persons. The first three ingredients were not in doubt. The only ingredient in doubt was ingredient number 4 regarding the participation of the appellant in the unlawful killing.

This Court, being a second appellate court, is not bound to re-evaluate the evidence on record unless it is established that the first appellate court did not re-evaluate the evidence. From the record, it is evident that the Court of Appeal fully reconsidered the evidence of the hial court before arriving at the finding that indeed, the confession statement made by the appellant was voluntary, and the testimony of PW1 and PW5 corroborated the appellant's confession. The charge and caution statement was admitted in evidence and formed part of the record of court. A look at the extract from the confession statement made by the appellant found at page 121 of the record shows that the appellant stated:-

"On 9/08/2.006, I ruas at school. So I was arrested and tnken to Kireka VCCU. On thnt day, I wns nslced hut I did not tell them anytling. On tlrc 10/08/2006, I zons called agnin hut I did not tell nnytling. lt was today tlrc '11/082006 when I decided to repent nnd tell the trutlt that I uns tlrc one tolto killed those people at Kobil. Because it wos eoen in tlrc Newspoper, people lnd read. Those puntp attendants tplro died, I knew tlrcnt rpell. Tlrcre ruas Gatnle Clnudin, Oroto Tonr nnd Pnddy (Knteba). ,Jroto was tlw guard...."

Considering the fact that the Court of Appeal re-evaluated the evidence at trial and arrived at the finding that it is indeed the appellant who caused the deaths of the five persons, which we accept, we cannot fault the lower courts in reaching that decision. We agree that the appellant

confessed to the murder. All the four ingredients of the offence of murder were proved beyond reasonable doubt against the appellant at trial.

We thus hold that ground 1 of the appeal fails.

In ground two, the appellant faulted the Court of Appeal for upholding his conviction based on weak circumstantial evidence. The circumstantial evidence in this regard related to the blood-stained shirt and muddy boots recovered from the appellant's house. The appellant explained that the blood stains were as a result of the fight he had had with his girlfriend though he did not explain the muddy boots.

Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminatirrg facts and circumstances are found to be incompatible with the innocence of the accused person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. See Ramesh Bhai & Another Vs State of Raiasthan, Supreme Court of India Criminal Appeal No. 868 - 869 of 2004.

It is thus eviclent that in reliance on circumstantial evidence to prove the guilt of the accused person, such evidence must satisfy the following:-

- i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; - ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; - iii) The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within

all human probability, the crime was committed by the accused and none else; and

The circumstantial evidence in order to sustain a conviction of iv) any other hypothesis than that of the guilt of the accused, such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In addressing the aspect of circumstantial evidence, the Court of Appeal concluded that the circumstantial evidence implicated the appellant regarding the shooting in question. The Court of Appeal, at page 43 of the record of appeal, observed thus:-

"PW5 testified that on searching the said house, he found a long-sleeved *shirt with blood stains, jungle boot shoes with mud, and two t-shirts and* caps of Security Group, the appellant's employer. We note that the said *items were neither subjected to laboratory analysis nor exhibited in the trial court. The said laboratory analysis could have scientifically established to* whom the blood on the appellant's shirt belonged to. Although the items on the shirt were never subjected to laboratory analysis, we believe that the said evidence taken together with the confession statement tended to pin down the appellant to the offence. We are of the view that it was not a *coincidence that blood stained clothes, as well as the muddied jungle boots* were found in the appellant's house in the immediate aftermath of the *shooting in question. It was also not a coincidence that the appellant missed* examinations on the day of the shooting as his economics teacher $(PW1)$ *had testified. In our view, the foregoing evidence implicated the appellant in the shooting in question."*

From the above extract of the Court of Appeal judgment, we observe that the first appellate court fully re-evaluated the circumstantial evidence

adduced by the prosecution against the appellant at the trial. The re evaluation of the circumstantial evidence also covered the appellant's confession statement, which, in our view, was rightly admitted by the trial court following a trial within a trial. It is not in doubt that the circumstantial evidence was complete as it did not leave any reasonable ground for a conclusion consistent with the innocence of the accused. It only points to the fact that the murder of the five victims was committed by the appellant. No co-existing circumstances negative the inference of guilt on the part of the appellant. See Byaruhanga Fodori Vs Uganda, SCCA No. 18 of 2O02; [2005] L ULSR 12 at 14, Simon Musoke Vs Republic [1975] EA Z5 and Sharma & Kumar Vs Uganda, SCCA No.44 of 2000.

We thus hold that the learned ]ustices of Appeal did not err in upholding the conviction of the appellant on circumstantial evidence as they did. Ground two of the appeal also fails.

In ground three, the appellant faults the Court of Appeal for failing to evaluate the evidence in respect of the appellant's defence of alibi and wrongly rejecting it.

It was the appellant's contention that on the 7th day of August, 2006 when the victims were murdered, he was deployed at Kikuubo, in the Kampala City Center where he worked up to 5. 30 am. That while at work, he developed a severe headache which continued until morning, which forced him not to go school, but that, instead, he took medication and remained at home, and that he called his teacher, a one Nyakato whom he informed about his state of health.

It is trite law that that an accused person who raises the defense of nlibi does not assume the duty of proving it. It is the duty of the prosecution to adduce evidence placing the accused person at the scene of crime, showing that nonetheless, the offence was committed by the accused. The other way of disposing of an alibi is for the prosecution to adduce cogent evidence which puts the accused at the scene of crime. See Lt. )onas Ainomugisha Vs Uganda SCCA No. 19 of 2015 and Sekitoleko Vs Uganda [1958] EA 531.

In considering the defence of alibi, the Court of Appeal stated in their judgment at page 49 of the record of appeal, that:-

"We hate aftjected tlrc prosecution and dcfence etidence to a tlrorough reettaluation. We fnd tlrc appellant's alibi dtffailt to beliete, in light of tle testintonies of PW'| nnd PWS which rue hape nlrendy nnalyzed elserulere in tlils judgment. Tlurefore, uhile ttle agree tlwt tlrc learned trial Judge nisdircctcd limself rulrcn hc failed to et aluntc the appellant's nlibi, we fnd tlmt the said nisdirection did not occasion n miscnriage of justice. The said nlibi uas nghily rejected in oiew of tlrc prosecution eoidcnce wltich placed tlrc nccttsed squarely at tlrc scene of tlu tinrc."

The specific evidence that the kial court, and, consequently, the Court of Appeal relied on in respect of PW1, hence the conviction of the appellant, related to the fact that PW1 was the appellant's teacher, arrd at the time when the offence was committed, the appellant was absent from school despite the fact that it was mock time and he missed an examination in Economics, both paper L and 2, scheduled for that day. PW1 further testified that no reason was given why the appellant missed the said examination. Regarding PW5, his testimony related to the search he conducted where he recovered a long-sleeved shirt with blood stains, a pair of jungle boots with mud, and a pair of black trousers with mud, among other items, from the appellant's house.

In his unsworn testimony, the appellant testified that on the 6th day of August, 2006, he was deployed at Kikuubo and, at around 1.00 am, his supervisor, one Edgar Edison checked on him, and that he got off duty on 7th August, 2006 at 5.30 am. He also testified that on 7th August, 2006, he was supposed to go to school to sit an examination paper in Economics but he was not able to, because he had a severe headache hence missing the examination. He further testified that he called his teacher and explained his situation.

The court record reveals one important piece of evidence that should have further guided the lower courts in dealing with the defence of nlibi. PW3 Lakony Clayton Omona testified that he worked with Security Group (U) Ltd in 2006 as a branch Manager and head of Investigations; that on 7tr, August, 2006, there was an incident at the place where the accused was guarding as he received information that people were shof that he rushed to the scene where he saw a pool of blood at the washing bay; and that he also saw pump attendants and one security guard dead. When he turned the other side, he saw another guard called Okiro and a pump attendant had been shot, but they had not yet died; that he ordered for the two to be rushed to Mulago Hospital, and when he went to check on the two at the hospital, he was told the pump attendant had died, but he talked to Okiro who was still alive; that Okiro tolcl him that the appellant was not huppy with his manager, as he was not coping with school, and that he (accused/appellant) was also not happy with the pump attendant. PW4 further testified that when the appellant was arrested, he talked to him while in detention at the Violent Crime Crack Unit and that the appellant

told him that he was being frustrated and he wanted to show his dissatisfaction; that the appellant also told PW4 that he was annoyed, which he repeated five times; and that that was the reason he decided to shoot people at the petrol station. The record shows that little was done in cross examination towards destroying PW3's testimony.

When considering the defence of nlihi, it is incumbent upon Court to evaluate both the accused person's and the prosecution's versions judicially and give reasons why one version and not the other is accepted. It is a misdirection to accept one version and hold that because of the acceptance per se, the other version is unsustainable. See Bogere Moses & Another Vs Uganda, SCCANo. 0l of 1997; Opolot ]ustine & Another Vs Uganda, SCCA No. 31 of 2074.

It is also now settled law that when an accused person puts up the defence of alibi, the prosecution is under duty to prove to the satisfaction of court that the accused was at the scene of crime by adducing evidence that places him/her at the scene of crime, or to produce such evidence that negates or counteracts the accused person's testimony that he was in a particular place other than at the scene of the crime. See Kazarwe Henry Vs Uganda, SCCA No.17 of 2015.

We have gone at length to bring out the relevant piece of evidence in regard to the defence of alibi raised by the appellant. We have found it necessary to do so because, in our view, the lower courts did not fully consider the principle laid down in the already cited cases of Bogere Moses and Opolot fustine, as both versions were not fully considered before accepting the prosecution testimony.

On his part, the appellant advanced the version that he was working elsewhere the night the unfortunate incident occurred, and that he was not at Kobil petrol station at Bugolobi, which was the scene of crime. PW1, his teacher, testified that the appellant had missed exams in the aftermath of the incident. The appellant attempted to explain why he missed the exams, allegedly because of sickness, though no medical evidence is on record to support his claims. Secondly, the testimony of PW3 squarely connects the appellant with the murder as he had the opportunity to interact with one of the victims (Okiro) before he passed on. Okiro told PW3 that the appellant was unhappy with the new deployment and that, that is why he shot the people at the petrol station. Thirdly, when PW3 had an interaction with the appellant while he was in detention, the appellant told PW3 that he was annoyed, which he repeated five times, and that, that is why he decided to shoot the people at the petrol station. As we indicated before, the testimony of PW3 was never destroyed in cross examination. Coupled with our finding on the confession statement which, in our view, was properly admitted in evidence, we find that the appellant participated in the commission of the offence and the defence of alibi was rightly rejected.

Ground 3 of the appeal fails.

In ground 4 of the appeal, the appellant faults the leamed ]ustices of Appeal for upholding the sentence of life imprisonment which, in his view, was manifestly harsh and excessive in total disregard of the mitigating factors.

It was the appellant's contention that upon conviction, he was sentenced to imprisonment for life on each of the five counts, to run concurrently,

and yet he had spent seven years and nine months on remand, that the said period was not considered by the trial court at the time of sentencing. The appellant further contended that the trial court did not take into consideration the mitigating factors at the time of sentencing. He accordingly argued that the Court of Appeal misdirected itself because, in 2006 when the offence was committed, the law provided imprisonment for life to be 20 years' imprisonment under the Prison's Act, and that the holding of the Court of Appeal was inconsistent with article 23 (8) of the Constitution which prohibits more severe punishment than that prescribed by law at the time of commission of the offence.

The respondent argued, however, that ground four of the appeal offends the provisions of section 5 (3) of the fudicature Act as the appellant is prohibited from appealing against severity of sentence.

We have considered the provisions of section 5 (3) of the ]udicature Act which provides that in the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence.

What is not in contention is that, indeed, in ground four, the appellant criticized the learned ]ustices of the Court of Appeal for passing ^a sentence which he described as severe when they upheld the sentence of life imprisonment which, in his view, was manifestly harsh and excessive in total disregard of mitigating factors.

Section 5 (3) of the Judicature Act does not allow an appellant to appeal to this Court on severity of sentence. It allows an appellant to appeal against sentence only on a matter of law. In that connection, ground four of this appeal contravenes the provisions of section 5 (3) of the Judicature Act. The same is accordingly rejected as the appellant has no right of appeal on severity of sentence.

The appellant had also argued that he was sentenced to imprisonment for life on each of the five counts yet he had spent seven years and nine months on remand, that this period was not considered by the trial court at the time of sentencing. The appellant further contended that the trial court did not take into consideration the mitigating factors at the time of sentencing.

Regarding the issue of the period spent on remand, Article 23 (8) of the Constitution of the Republic of Uganda,1995, provides that:-

"Wrcre n person is contticted and sentenced to a term of imprisonnrent for an offence, any period lrc or slrc spends in lmtful custody in respect of the offence before the contpletion of lis or her trinl shall be taken into account in imposing the terru of inryrisonment."

The appellant also contended that the trial court did not consider factors in mitigation at the time of sentencing.

We have perused the record of appeal and at page "11.2, the trial court, while passing sentence made the following observation;

" ...1 ]mtte considered all the aggraztating factors as raised by tle prosecution and actually nrcntioned sonrc of them. I at the sante tinrc tnke into consideration the ruitigating factors rnised by Ms. Syhtia Nnmauejje for the conttict, pnrticularly age of the conpict. All in all, I am persuaded not to sentence tlrc conoict to death despite the denth offzte people lrc caused. Conttict is neuertldess n ztery dangerous person who desentes to be out of society in the interest of protection of otlrcrs."

From the foregoing extract, it is evident that the trial court took into consideration both the aggravating and mitigating factors at the time of sentencing.

We observe, however, that the learned trial Judge did not specifically state, at the time of sentencing that he had taken into consideration the period spent on remand by the convict. This is a constitutional mandatory requirement.

The record, at page 50, shows that, in dealing with the foregoing issue, the Court of Appeal had this to say:-

"We have quoted at length the reasons given above by the learned trial Judge in order to show that he did not take into consideration the period spent on remand by the appellant. However, in Magezi Gad v Uganda, Supreme Court Criminal Appeal No.17 of 2014, the Supreme Court observed that a sentence for death or life imprisonment is not amenable to *Article 23 (8) because the said provision applies only where sentence is for a term of imprisonment which is quantifiable and capable of being deducted* which was not the case with life-or-death sentences. In view of the preceding authority, we find that the sentence in this case was legal as it *was a sentence for life imprisonment which would not have been reduced* after the remand period taken into even was account. ...................................... *the learned trial Judge by counsel for the appellant that he did not take into account the mitigating factors in favour of the appellant. On the contrary,* he considered the mitigating factors and specifically singled out the appellant's young age which persuaded him not to impose the maximum *death penalty…"*

We have no reason to depart from the foregoing position, which, in our view, was clearly addressed by the Court of Appeal regarding the sentence imposed by the trial court and the consideration of factors in mitigation.

The sentence of life imprisonment means the convict has to serve the rest of their life in prison. The principle of deduction of the period spent on remand, from the life sentence, is inapplicable as it would be a futile exercise, since sentence of death and life imprisonment are not amenable to the provisions of article 23 (8) of the Constitution. See Kato Kaiubi Vs Uganda, SCCA No.20 of 2014.

We do not find merit in ground four of the appeal and the same fails.

Overall, since all the grounds of appeal have failed, we find no merit in the instant appeal and we accordingly dismiss it.

The appellant shall serve the sentence upheld by the Court of Appeal.

Dated at Kampala this daV of ... .q\$-r, {:L...2o24.

Alfonse Owiny-Dollo Chief Justice

...... -4tj^\*c"a.,r\*..

Faith Mwondha justice of the Supreme Court

Prof. Lillian Tibatemwa-Ekirikubinza

usatemne

**.........**

Justice of the Supreme Court

Pethonia

**Percy Night Tuhaise** Justice of the Supreme Court

DRE

**Mike Chibita Justice of the Supreme Court**

Delivered by the Registrand 13/6/24<br>Polivered by the Registrand 13/6/24<br>Postfr.