[2025] UGCA 7

### ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APP OF UGANDA AT

# nda-Ntende Barishakl Che rion and M n CRIMINAL APPEAL 398 0F 2019

(Arising from High court criminal case HCTO1o- cR-sc- 2017 at Mukono.)

- 1. KAWEESI JOWERIA - 2. ORISHABA RACHEL - 3. LUSWATA JOSEPH ::::::::::::::::::::::::::::::::: APPELLANTS

#### VERSUS

#### JUDGMENT

# 1. INTRODUCTION

This is an appeal against the conviction of the appellants on the charge of aggravated robbery contrary to s. 2g5 and S. 2g6(2) of the penal code by the High court presided over by Justice J.w. Kwesiga on 13th November 2019. The appellants with intent to rob their victim used a deadly object in the form of chloroform. The appellants were sentenced to 17 years, imprisonment by the

High Court.

# 2. BACKGROUND

30 On 7th February 2076 the appellants ald others still at large, at Bunga, Makindye Division in the Kampala District robbed Ssengoba David of a motor cycle Reg. No. UEJ 262 Bajaj Boxer valued at Ug, shs. 4,2oo,0oo at or immediately before or immediately after the said robbery used chroroformed food on him.

On ground 1, the appellant submitted that there is no evidence to suggest that the victim, one David Sengoba was ingested with chloroform or any other chemicals. The doctor examined the victim five days after the incident which was indicated in the police medical form. The report from Mulago hospital was never tendered in court. Though the victim testified that he went unconscious in a bar, the bartenders were never called to testify. The appellant submitted that the victim alleged that he was admitted to Mulago hospital on 15^th February 2016 and discharged the next day. The appellants submitted that the victim could not have been unconscious for 4 days but was discharged from the hospital a day after he was admitted. The victim went to a private clinic for another medical examination which is odd. The first appellant did not see the third appellant administer any chemical or food to the victim. Dr. Jackson Kakembo confessed

that he did not examine the victim. The appellants submitted that the vital

ingredients of a deadly weapon had not been prove and the trial judge was in

error to convict the accused.

On ground 2, the appellants submitted that the first appellant who signed the charge and caution statement told the police officer that she speaks Luganda. She did not understand English. The charge and caution statement was never translated to her. The first appellant was a P3 dropout. It was after her incarceration at Luzira Women's Prison that she enrolled in P.4 and sat for Primary Leaving Examination. The trial judge rejected the statement of the third appellant who was an S. 1 dropout. At the time the first appellant made the statement she had spent over a week in prison. The first appellant was sick at the time she signed the charge and caution statement. The appellants concluded that the statement was not voluntarily written. It was written in a language that was not understood and spoken by the maker. The maker was in a bad health condition. She had spent over a week in prison. It was written with other people in the room. The appellants complained that the trial judge shifted the burden of proofing on the defence instead of the prosecution.

3 | Page

$\mathsf{S}$

On ground 2, the respondent submitted that the trial court relied on a charge and caution statement of A1. The appellants contended that it was irregularly obtained. The respondent submitted that the recording of confession is regulated by S. 23 of the Evidence Act which states that no confession made by any person

while he or she is in the custody of a police officer shall be proved against such 10 person unless it is made in the immediate presence of a police officer of or above the rank of assistant inspector or a magistrate. For a statement to amount to a confession it must admit all the elements of the offence allegedly confessed. The respondent cited Festo Androa Asenua v Uganda Criminal Appeal 1 of 1998 which states out the rules for the recording of confessions by magistrates and 15 police officers. The rules require that the accused be cautioned before a statement is made. The recording maybe taken by a police officer at the rank of assistant inspector of police or at a higher level. The confession should be made in a language understood by the accused. The above rules were followed as per the evidence of PW5 DAIP Gipatho Dorothy. 20

The respondent submitted that S. 27 of the Evidence Act provided that a court may take into consideration a confession made by one person implicating himself and other jointly for the same offence. A1, who is the first appellant admitted to being part of a criminal gang that included the appellants. A2, the second 25 appellant would lure boda boda riders to a bar. A1, A2 and another at large would give the victim food or juice which contained chloroform. Once unconscious they would rob the victim. A1 admitted that on 14^th February 2016 that the appellants followed the victim in a white impsum Registration No. UAQ 400E to Bunga where they administered him with drinks containing chloroform. 30 Once the victim was unconscious they robbed him of his motorcycle. The respondent submitted that the trial court properly evaluated the evidence.

The respondent submitted that A1 understood English and was fluent in it. The trial judge also relied on other evidence to convict the appellants. There was the 35 5 | Page

$\mathsf{S}$

#### 4. DETERMINATION $\mathsf{S}$

The appellants were convicted of aggravated robbery contrary to S. 285 and S. 286(2) of the Penal Code on 13^th November 2019. The appellants with intent to rob their victim used a deadly object in the form of chloroform. The appellants they were sentenced to 17 years' imprisonment by the High Court.

Before we can address the grounds of appeal, this court is mindful of the duty of an appellant court. In Kifamunte Henry v Uganda Criminal Appeal 10 of 1997 the court stated that

"It is the duty of the first appellate court to rehear the case on appeal by reconsidering all the materials which were before the trial court and make up its own mind."

Therefore, the court will reconsider all the materials the judge used to reach the conviction against the appellants.

The offence of aggravated robbery is created under S. 285 and 286 of the Penal Code. S. 285 of the Penal Code reads

## "285. Definition of robbery

Any person who steals anything and at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits the felony termed robbery."

S. 286 of the Penal Code reads

## "286. Punishment for robbery

(1) Any person who commits the felony of robbery is liable—

- (a) on conviction by a magistrate's court, to imprisonment for ten years; - (b) on conviction by the High Court, to imprisonment for life. By Laws.

(2) Notwithstanding subsection (1) (b), where at the time of or immediately before or immediately after the time of the robbery, an offender is in possession of a deadly weapon, or causes death or grievous harm to any person, the offender or

$7$ | Page

- court in reappraisal of evidence is enabled by rule 30(1)(a) of the Judicature $\mathsf{S}$ (Court of Appeal Rules) Directions, S. I No. 13-10, which provides that on appeal from the decision of the High Court in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact. It is trite law that in criminal cases such as this the burden of proof rests with the prosecution - which must prove all elements of the offence to a standard beyond reasonable 10 doubt (see Okethi Okale v Republic [1965] 1 E. A. 555 at 559). In Miller v Minister of Pensions [1947] 2 ALL ER 373 it is stated that

"the standard of proof required is not proof to absolute certainty. Nonetheless, the prosecution evidence should be of such standard as leaves no other logical explanation to be derived from the facts, except that the accused committed the offence."

So the question we have to bear in mind is did the accused commit the offence? We have to scrutinize the evidence on record.

The evidence on conviction included the testimony of the victim. He was hired 20 by the second appellant. He went to the bar with her to wait for the customer's father. The first appellant joined them at the bar. He was given food and drinks at a bar. As a result, he was rendered unconscious. When he woke up his motorcycle and keys had been stolen. He identified two of the appellants at an identification parade. We note that the said testimony was not controverted. Two 25 of the appellants did not dispute the fact that the victim identified them at a parade conducted after the incident. There is also no logical explanation as to why some body would eat food and become unconscious unless the food and or drinks is chloroformed. Worse still when the victim awakes, his motor cycle Registration No. UEJ 262W was gone together with the keys. S. 133 of the 30 Evidence Act states that "Subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for the proof of any fact." Unless there is evidence to show that the victim was untruthful his evidence can be relied on. Where, there is evidence of one witness and it is 35 reliable a court can use it to convict.

$9$ | Page

- There was evidence of Detective AIP Muwanika Aggrey, who did the identification 5 parade on 25^th February 2016 where the victim identified two of the appellants. The victim was able to identify the accused by their appearance. This was corroborated by the testimony of the victim PW1. - Lastly, the conviction was based on a charge and caution statement of the second 10 appellant, Kaweesi Joweria. The court noted in its judgment, that the statement gives in the details the following circumstances of the case as a whole: - - "(i) This style and fashion of Chloroforming victims to render them unconscious and steal their motorcycles was a practice that always involved, herself (A2), Luswata Joseph (A4), Orishaba 'Rachael (A3), Shadia (still at large) and Tonny Mubiru (A1). - (ii) Herself and Rachael were paid by Luswata between Ug. Shs. 80,000/= and $90,000/$ = for participation in the execution of the Robbery - (iii) Tonny Mubiru was the man that did riding of the stolen motorcycle to where Luswata sold them. - (i) She gave details of the role placed by each of the accused persons in the instant case."

The appellants contend that the second appellant did not understand English. She was a P3 dropout. The evidence adduced by the prosecution shows 25 otherwise. The testimony of Assistant Inspector of Police Dorothy Kipatho is to the effect that "She was fluent in English and she assured me she understands and speaks English very well." She says that the second appellant "told me she understands it and she was speaking it fluently." The police officer cautioned the second appellant. This information was verified during a trial within a trial. In 30 her evidence, the second appellant denied that she knew English at the time of making the charge and caution statement. She knew Luganda. However she admitted she signed the statement 4 times. During the trial, the witness did not use a translator when testifying. A perusal of her evidence does not show that she was a P3 dropout nor was she pregnant at the time she made the statement. 35

$11$ | Page

$20$

The appellants did not challenge the sentence imposed by the trial court. $\mathsf{S}$ Therefore, we shall not address the sentence of 17 years imposed.

Taking the above into consideration, the appeal is dismissed.

Dated at Kampala this. 24. day. $10$ .... 2025.

Fredrick Egonda-Nende

**Justice of Appeal**

Barishaki Cheborion

**Justice of Appeal**

Dr. Asa Mugenyi **Justice of Appeal**

$20\\$