[2024] UGCA 145


THE REPUBLIC OF UGAI{DA

# THE COURT OF APPEAL OF UGAI{DA AT KAMPALA

(Coram: Buteera, DCJ; Mulyagonja & Mugenyi, JJA)

# CRIMINAL APPEAL NO. 897 OF 2014

KABIITO FAGIL alias MUKIGA APPELLANT

# VERSUS

UGANDA RESPONDENT

(Appeal from the High Court of Uganda at Kampala (Gaswaga, J) in Criminal Session Case No. 53 of 2012)

Ard

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I

Criminal Appeal No. 897 of ²⁰¹⁴ PAL

# JUDGMENT OF THE COURT

## A. lntroduction

- 1. This is a first appeal from the decision of the High Court in Masindi (Byaruhanga Rugyema, J) in which Mr. Fagil Kabiito alias Mukiga ('the Appellant') was convicted of the offence of aggravated robbery contrary to sections 285 and 286(2) of the Penal Code Act, Cap. 120. - 2. The prosecution case as accepted by the trial court is that on 18th August 2011 at at Kisenyi (behind KK Hotel) about 7.00 am, the Appellant and two others that are still at large attacked Phillip Ruhaga, inflicting upon him injuries that were classified as grievous harm and robbed him of 21 kilograms of fish maws that he had brought from Hoima for sale. The accused was arrested ten days later, subsequently convicted of the offence of aggravated robbery and sentenced to seventeen (17) years and nine (9) months' imprisonment. - 3. Dissatisfied with his conviction and sentence, the Appellant lodged this Appeal in this Court proffering the following grounds of appeal: - The learned trial Judge ened in law and fact when he found that the Appe ant had been positively ide ntified. - ll. The learned trial Judge ened in law and fact when he imposed a manifestly harsh and axcessive senterce against the Appellant. - 4. Mr. Norman Pande (holding brief for Mr. Henry Kunya) represented the Appellant at the hearing, while the Respondent was represented by Ms. Lillian Nandawula, a Senior State Attorney.

## B. Parties' Leoal Arquments

5. Under Ground 7 of the Appeal, it is argued for the Appellant that the circumstances under which the Appellant was supposedly identified were not favourable for ^a positive identification free of error or mistake. The trial judge is faulted for disregarding factors that rendered positive identification difficult including the fact that the attack occurred very early in the morning; was undertaken by a group of close to five people, and Mr. Ruhaga (the victim) who purportedly identified the

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Appellant did not know him prior to the attack. The Appellant's identification at the police post is additionally contested for having been devoid of an identification parade. Furthermore, although one Moses Matovu reported to the police having witnessed the attack on Mr. Ruhaga, he was never called as a witness yet it was on the basis of his report that the Appellant was arrested. Reference is made to Kanakulva Mohammed vs Uqanda. Criminal Aopeal No. 60 of 2003 (CoA) for the proposition that when material witnesses are not called by the prosecution, an adverse inference that such witnesses might have given evidence which is unfavourable to the prosecution may be drawn.

- 6. With regard to Ground 2, it is argued that had the trial judge addressed his mind to the available mitigating factors in favour of the Appellant he would not have sentenced him as he did. The mitigating factors proposed by Counsel are that as a 29-year old man, the Appellant was capable of reform and reintegration in society; was a first time offender with family responsibilities in respect of his wife and two children, and had been accused of robbing fish maws, the value of which was a mere Ushs. 900,000/=. - 7. Conversely, State Counsel opposes Ground 7 of the Appeal, arguing that the trial judge did evaluate the evidence before him in such a manner as would rule out mistaken identity. lt is opined that Mr. Ruhaga (who testified as PW2) was observed by the trial judge to have had a brief interaction with the Appellant immediately before he was attacked by a gang of five men, the Appellant inclusive. That interaction time was deemed sufficient to enable correct identification as PW2 became familiar with the Appellant. lt is argued that the attack had occurred at 7. 00 am with enough light to facilitate proper observation and identification of the Appellant as one of PW2's attackers and the one who physically carried the merchandise away. His identification was allegedly re-affirmed by the fact that the Appellant had in the brief interaction with PW2 expressed interest in purchasing the fish maws. lt is further contended that PW2's evidence was corroborated by that of PW3, who testified that, without any prompting, the witness was able to recognise the Appellant as one of the people who attacked him and took away his fish maws. PW2 additionally identified the Appellant before the trial court.

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- 8. State Counsel cites Boqere Moses & Anothe r vs Uoanda. Criminal ADoeal No. 'l of 1997 and Abdulla Bin Wendo & Another vs ^R ( ¹ 953) 20 EACA 166 as the basis for his propositions on the correct identification of the Appellant. lt is argued that PW2's identification of the Appellant was made under conditions favourable for correct identification and the trial judge duly exercised caution before relying on his identification evidence but nonetheless adjudged him to have been a credible witness. - 9. Addressing Ground 2 of the Appeal, reference is made to Karisa Moses vs Uqanda, Criminal Appeal No. 23 of 2016 (sc), Kiwalabve Bernard vs ^U a,anda Criminal Apoeal No. 143 of 2001 (SC), Kobusheshe Karaveri vs Uqanda. Criminal Appeal No. 110 of 2008 (COA) and James s/o Yoram vs Rex (19501 18 EACA 147 for lhe proposition that an appellate court ought not to interfere with a sentence imposed by a lower court unless the sentence is illegal or so manifestly excessive as to amount to a miscarriage of justice. State Counsel further cites Aharikunda vs Uqanda (20181 UGSC 49 where it was held that the discretion at sentencing rests with the trial judge who has had the opportunity to observe the proceedings and assess the demeanour of the witnesses first-hand. - 10. State Counsel contends that the sentence imposed on the Appellant was fairly lenient as the victim sustained grievous harm and was deprived of his fish maws and a source of livelihood. lt is argued that the trial judge dutifully considered both the mitigating and aggravating factors, and sentenced the Appellant to 17 years and 9 months' imprisonment, which is way below the 35 years' imprisonment recommended by the Constr?ution (Sentencing Guidelines for Courls of Judicature) (Practice) Directions, 2013 ('the Sentencing Guidelines') for the offence of aggravated robbery. - '1 1. Counsel cites Guloba Roqers vs Uqanda. Criminal Apoeal No. 57 of 2013 and Oianqole Peter vs Uqanda, Criminal Aooeal No. 34 of 2017 in support of severe sentences where the aggravating factors are found to outweigh the mitigating factors. In Guloba Roqers ytUqaolla (supra), this Court handed down a 3S-year sentence for aggravated robbery, while in Oianqole Peter vs Uqanda (supra) it confirmed a 32-year sentence for the same offence. lt is thus argued that there is

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no reason to interfere with the sentence in issue presently as it was neither harsh nor excessrve

#### C. Determination

- 12. This being a first appeal, this Court is required to review the evidence and make its own inferences of law and fact. See Ru/e 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions, S./ r3- 70. lt is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial Court and, while giving allowance for the fact that it has neither seen nor heard the witnesses, come to its own conclusion on that evidence. ln so doing, the first appellate court must consider the evidence in its totality and not any piece thereof in isolation. lt is only through such re-evaluation that it can reach its own conclusions, as distinct from merely endorsing the conclusions of the trial court. See Baquma Fred vs Uqanda. Criminal Appeal No. 7 of 2004 and Kifamunte Henrv vs Uqanda, Criminal Appeal No. 10 of 1997 (both, Supreme Court). - 13.1n this case, the trial judge is faulted for his finding that the Appellant participated in the offence of aggravated robbery. The record of appeal reveals that the trial judge reviewed and accepted the prosecution evidence before discharging himself as follows:

I find that the circumstances under which the accused peson was identified were favourable to aedible and authentic idontification. I an satistied that the identilication was of such god qualv as to place the accused person squarely at lhe scene of cine at the nateial tine. There was therefore no danger of mistaken identtty.

14.1n so doing, the trial judge considered the Appellant's unsworn evidence denying any knowledge of the incident, as well as the witnesses who testified against him and their account of how the robbery unfolded. He particularly relied upon the victim's evidence, who testified as PW2 and placed the Appellant at the scene of crime. His evidence was that when he met the Appellant before the robbery, he expresses interest in the victim's fish maws but the latter declined his offer. They thereupon parted ways but shortly thereafter, the Appellant attacked him with about four other men.

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15. Noting that PW2's evidence was that of a single identifying witness, the trial judge nonetheless found it credible on the basis of the identification parameters laid out in Boqere Moses and Anothervs Uqanda (supra). He found the brief interaction between the victim and the Appellant to have been sufficient to enable correct identification, considering that the robbery occurred at 7.00 am with enough sun light to facilitate proper identification of the Appellant as one of the victim's attackers, moreover the one who carried away his merchandise. lndeed, the victim had positively identified the Appellant at the police station as one of the people who attacked him and took his fish maws.

# 16. The test of correct identification in a criminal trial was laid out in the /ocus c/asslcus of Abdala Nabulere & Another vs Uqanda, Criminal Appeal No. 9 of 1978 as follows:

The court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. lf the quality is good then the danger of mistaken identity is reduced. The poorer the quality, the greater the danger.

- 17. Where, as in this case, the prosecution case hinges on the evidence of a single identification witness, the court must caution itself of the dangers of relying on this evidence and must satisfy itself that there is no danger of mistaken identity. See Abdullah Bin Wendo & Another vs R (1953) EACA 166, Roria vs. Republic (1967) EA 583. - 18. The evidence on record rn this case is that PW2 (the sole identification witness) met the Appellant for the first time at 7.00 am on the fateful day; they had a discussion during which the witness declined to sell his fish to the Appellant whereupon the Appellant left. After a short distance, PW2 met the same man with a group of about 5 men who attacked him and took his fish maws. He recognised the Appellant, whom he had spoken to a few minutes before the attack, among his accosters and saw him flee with his merchandise.

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- 19. Clearly, a witness that had just engaged in a negotiation with his would-be attacker would have been in a position to identify him moments later when he attacked him and took away the subject of his interest - the witness'fish. Such an attack that led to the loss of a tooth by PW2 and the robbery of the fish that he was carrying at the time must have happened in close enough proximity to support the correct identification of the perpetrators. We therefore find no reason to fault the trial judge's conclusion that the Appellant had been duly placed at the scene of crime. - 20. With regard to the claim that the Appellant had not been identified pursuant to a properly organised identification parade, we defer to the decision of the Supreme Court in Mulindwa Samuel vs Uqanda Criminal Appeal No. 41 of 2000. lt was held:

Regarding identillcation parade we, with respect, are unable to agree that the failure to hold one was fatal to the Appellant's conviction. The objective of an identification parade is to test the ability of a witness to pick out from a group the person, if present, who the witness has said that he has seen previously on a specific occasion. Where identification of an accused person is an issue at his trial, an identiflcation parade should usually be held to confirm that the witness saw the accused at the scene of crime. However, where other evidence sufficiently connects the accused with the crime, as was the case in the present appeal, failure lo hold an identification parade is not fatal to the conviction of the accused.

- 2l. Accordingly, given our findings on the veracity of the identification evidence in this Appeal, we are satisfied that an identification parade was not required as the Appellant had already been properly identified as one of the perpetrators of the offence in issue presently. We would therefore resolve Ground , in the negative. - 22. We now twn to Ground 2 of the Appeal. lt is well recognised that an appropriate sentence is a matter for the discretion of the sentencing judge, which discretion is premised on the intrinsic circumstances of each case. It is also fairly well established judicial practice that an appellate court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or the appellate court is satisfied that the sentence imposed by the trial judge was so manifestly excessive as to perpetuate an injustice. See Karisa Moses vs Uqan Apoeal No. 23 of 2016. Kiwalab ve Bernard vs Uqanda, Criminal Appeal No.

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# 143 of 2001 and Kvalimpa Edward vs Usanda, Criminal ABpeal Np 10 ot:1995

(all, Supreme Court)

23. ln the matter before us, the trial court discharged itself as follows at sentencing:

SEA/IEIVCE Mitigating and aggravating factors considered Sentencing guidelines.

#### Reasons

lmpose suitable sentence of 21 years but given the peiod spent on rcmand (3 years and 3 months), sentence shall be 17 years and I months from date of conviction. Right of Appeal explained.

- 24. There is indication that the trial judge gave due consideration to the mitigating and aggravating factors of this case, as well as Sentencing Guidelines, in arriving at the sentence handed down. He additionally deducted the period that the Appellant had spent on remand. - 25. We do not find the sentence imposed in this case to be illegal given that it falls within the threshold of applicable sentences for the offence of aggravated robbery. ln addition, the trial judge did take into account the period spent on remand in arriving at his sentence as is the constitutional imperative upon sentencing courts under Article 23(8) of the Constitution. Furthermore, the sentence is consistent with those imposed in cases of a similar nature. Thus, in Baluku Fred vs Uqanda, Criminal Appeal No. '10 of 2017 (SC), a senten ce of 22 years' imprisonment was confirmed for the aggravated robbery of a mobile phone, radio, and money worth UGX 90,000 with a panga. Similarly, in Abelle Asuman vs Uqanda. Criminal Aopeal No. 66 of 2016 (SC), a life sentence for aggravated robbery was reduced to 18 years' imprisonment by the Court of Appeal, which sentence was later confirmed by the Supreme Court. - 26. We therefore find no reason to interfere with the sentence imposed by the trial court, and would resolve Ground 2 in the negative.

## D. Conclusion

27. ln the result, we find no merit in this Appeal and the Appellant's conviction and sentence are hereby upheld. The Appeal is dismissed.

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It is so ordered

- \ ,.-,- Dated and delivered at Kampala tfris ...\C..... Aay of :?...........,2024.

Richard Buteera

Deputv Chief Justice

lrene Mulyagonja \

Justice of Appeal

(

. Monica K. Mugenyi Justice of Aopeal

. This judgment was signed before this judge ceased to hold that office.