[2022] UGCA 256

# IN THE COT'RT OF APPEAL OF UGAI{DA AT FORT FORTAL Coram: Buteera, DICJ, MulgagonJa and Lusuata, ,IIA CRIMINAL APPEAL NO. 43O OF 2OI7

#### MUHANGUZI JULIUS

#### ⁵ VERSUS

## UGANDA::::::::::::::::::::::::::::::::]:::::::::::::::::::::::::::::::::RESPONDENT

# (Appeal from the Judgment of Dattld Matorru, J dated 26tn June 2075 ln Fort Portol HCT-OI-CR-SC-O154 of 2Ol3)

#### JUDGEMENT OF THE COURT

This is an appeal from the decision of the High Court at Fort Portal sitting at Kasese in which the trial judge convicted the appellant for the offence of aggravated robbery contrary to sections 285 and 286 (21 of the Penal Code Act. He then sentenced the appellant to a term of imprisonment of 30 years. 10

#### 1) Background

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The facts that were accepted by the trial judge were that on lh,e 22"a March, 2013 at Kisomoro Village, Kinyamaseke in Kasese District, the appellant stole Uganda shillings 1,400,000 from Joyce Kemigisha and immediately, before, at or immediately after the said robbery, he used a deadly weapon to strangle the said Joyce Kemigisha, to wit: a rope.

It was the case for the prosecution that the appellant was a herdsman working for Joyce Kemigisha. And that on 22"d March 2013, the latfer sold her cow and the appellant witnessed the sale. He thus used the opportunity when he was at home alone with Kemigisha, to get a rope, put it around her neck and strangle her and then steal her money. He

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thereby caused her injuries on the neck for which she had to seek medical treatment.

In his defence on oath, the appellant admitted that he worked for the said Kemigisha and her son Businge, but he added that he did so for seven years without pay. And that on 22"a March,2013, Businge told him to prepare himself as he was to receive his long awaited pay the next day. Further that when he went to Kemigisha's house, he washed his clothes and left the home at 2. OO pm and proceeded to the trading centre where he was arrested. He denied any involvement in the alleged 10 crlme.

The prosecution produced evidence which persuaded the trial judge to convict the appellant and sentence him for aggravated robbery, as I have stated above. He now brings this appeal based on 3 ground of appeal as follows:

- l. The trial judge erred in law and fact when he held that the appellant stole one million four hundred shilling from the victim based on contradictory evidence of the prosecution. - 2. The trial judge erred in law and fact when he dismissed the appellant's defence of alibi yet the prosecution did not destroy it in any way by the evidence on record. - 3. In the alternative but without prejudice to the above, the tnal judge erred in law when he sentenced the appellant to 30 years of imprisonment which was manifestly harsh and excessive.

25 The appellant proposed that the appeal be allowed, his conviction be quashed and his sentence be set aside. The respondent opposed the appeal.ffi-

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#### Representation

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At the hearing of the appeal, on 7th September 2022, the appellant was represented by learned counsel, Mr Richard Rwakakoko Mugisa on State Brief. Ms. Fatinah Nakefeero, Chief State Attorney, represented the respondent.

Counsel for both parties hled written submissions before the hearing date as directed by court. They each prayed that they be adopted as their submissions in the appeal and the prayers were granted. This appeal was therefore disposed of on the basis of written submissions only.

## Analysis and Determination

The duty of this court as a hrst appellate court is stated in rule 30 (1) of the Court of Appeal Rules. It is to reappraise the whole ofthe evidence before the trial court and draw from it inferences offact. The court then comes to its own decision on the facts and the law but must be cautious of the fact that it did not observe the witnesses testify. (See Bogere Moses & Another v Ugsnda, Supreme Court Criminal Appeal No. ¹ of 19971

In resolving this appeal, we considered the submissions of both counsel and the authorities cited and those not cited that are relevant to the appeal. We reviewed the submissions in respect of each of the grounds immediately before we disposed of each of them. 20

In his submissions, Mr Rwakakoko for the appellant addressed each of the three grounds of appeal separately. The respondent's counsel addressed grounds I and2 together and ground 3 on its own. However, she raised an objection to the manner in which the grounds of appeal were framedbecause in her opinion, they contravened the provisions of w3

rule 66 (2) of the Court of Appeal Rules. She contended that the grounds were vague, argumentative and not specific as to the errors of the trial court that the appellant desired this court to address. Nonetheless, she responded to each of the grounds of appeal. It is therefore necessary to address the objection before we proceed to address the substantive complaints in the appeal.

#### Resolution of the respondent's objection

We note that counsel for the respondent did not specify which of the grounds was argumentative or non-specific. Neither did she point out to us which of them was vague. Nonetheless, rule 66 (2) of the Court of Appeal Rules provides as follows:

- (2) The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided. - In ground 1 the appellant's complaint was that the trial judge erred 20 when he relied on contradictory evidence when he held that the appellant stole UGX $1,400,000/$ = from the victim. We found no fault with this ground of appeal for it raised the specific evidence that the appellant's counsel complained about. We understood the complaint to 25 be about the proof of the theft and alleged contradictions attached to the evidence in that regard.

With regard to ground 2, the appellant's counsel raised a complaint about the trial judge's disregard for the appellant's defence of alibi. In the said ground of appeal, counsel presented what seemed to be an answer to the complaint in that he states that the prosecution did not

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destroy it in any way with the evidence on record. That may be understood to be an argument in support of the complaint which ought to be raised by counsel in his submissions. To that extent therefore, ground 2 contravened the requirements of rule 66 (2) of the Rules of this Court.

Ground 3 was in the alternative, in the event that both ground 7 and 2 failed. The appellant complained that the judge erred in law when he sentenced him to a term of 30 years' imprisonment, which he thought was harsh and excessive in the circumstances. We do not think there is any fault with this ground of appeal, at all. The objection in respect of ground 3 is therefore overruled.

We also observed that though the appellant complained that the trial judge sentenced him to 30 years' imprisonment, there was an error in the framing ofthat ground ofappeal. At page 25 ofthe record of appeal, it is shown that the tria-l judge sentenced the appellant to 27 years and

9 months' imprisonment, not 30 years.

In conclusion therefore, the objection succeeds, but only in respect of ground 2. However, we do not think that the manner in which ground 2 was framed was prejudicial to the respondent. We were also able to understand what the appellant wanted this court to address in all the grounds of appeal, and so was counsel for the respondent. She therefore filed a reply to all of the grounds of appeal.

Finally, in this regard, we caution advocates that appear before this court to take care while drafting the grounds of appeal. The Rules of this Court are mandatory; each of them is intended to achieve a definite purpose. Parties should therefore follow the Rules for the preparation of appeals because well drafted pleadings are a key to success in litigation.

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Observing the rules also saves the time of the court in the resolution of disputes.

We shall now proceed to dispose of the appeal and will address each of the grounds separately.

s Ground I

This was the complaint that the trial judge erred in law and fact when he held that the appellant stole UGX 1,4000,000, on the basis of contradictory evidence adduced by the prosecution.

#### Submisslons o,f counsel

- In his submissions, Mr Rwakakoko pointed us to the finding of the trial judge at page 22 of the record and said that he was correct when he observed that there was a contradiction between the testimony of Joyce Muhindo (PW4) who stated that the amount stolen was UGX 1,800,000, and the victim who stated that it was UGX 1,400,000 that was stolen. 10 - Further, that it was a miscarriage of justice when the trial judge thereafter found that the contradiction was not one that was material for it originated from a witness. That the trial judge further observed that tJle evidence surrounding the recovery of UGX 700,OO0 was completely distorted because even the victim did not know what happened to the money. Counsel pointed out that PW4 testified as an eye witness who saw the appellant when she peeped through the window and saved the life of the complainant whom the appellant was in the process of strangling. She also testified that it was the 15 20 - complainant who told her that the appellant stole her UGX 1,800,0OO from her clothes. The same witness testified that people run after the appellant, arrested him and brought him back to the victim's house, having recovered UGX 700,000/=. aL ⁶

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Mr Rwakakoko went on that the same witness testified that when the appellant saw her, he ran away but she followed him while making an alarm. That the appellant was then arrested by one Kahaya and one Jackline who brought him back to the complainant's house. He contended that the testimony of PW4 showed that the appellant was not given any opportunity to escape or hide the money, or drop it anywhere as he was pursued closely by those that responded to the alarm. He went further to point out that the evidence adduced by the prosecution did not explain how the amount stolen came down to UGX 700,OO0 from either UGX 1,40O,00O or 1,800,000.

The appellant's counsel further pointed out that Detective Sergeant Kibuura John (PWS), whose testimony was at page 12 of the record, said that he visited the scene of the crime. That he established that some money was recovered from the appellant but he did not receive the money. Counsel went on to observe that the prosecution did not produce any evidence to prove that the victim indeed sold any cows that day. There was no agreement of sale produced; neither did the prosecution call the seller to testify about the transaction.

With regard to the rope alleged to have been used by the appellant to strangle the complainant, which was recovered from the LC I chairperson, who was also the victim's son, there was no evidence adduced to relate the rope to the appellant. Counsel proposed that there should have been evidence of fingerprints taken to connect the appellant to the rope. 20

2s Counsel wound up his submissions on this ground by referring us to authorities to support his arguments about contradictions and inconsistencies in evidence. His main assertion was that material contradictions and inconsistencies will lead to the evidence being

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rejected by court. He relied on Alfred Tajar v Ugan&; EACA Criminal Appeal No 167 of 1969 and TVinomugisha Alex & 2 Others v Uganda, Supreme Court Criminal Appeal No. 35 of 2OO2. He asserted that the contradictions about the theft of the money were material and went to the root of the case of aggravated robbery. FinaIIy, that the prosecution did not prove that ingredient beyond reasonable doubt. He prayed that this ground succeeds.

In reply, Ms Nakafeero pointed out that the appellant majorly attacked the evidence of PW3 and PW4. With regard to the contradictions in the 10 evidence about theft counsel referred to the statutory provisions in sections 285 and 286 of the Penal Code Act. She reproduced both provisions and went on to submit that regarding the evidence of PW3, she testified that she knew the appellant who had worked for her for 2 weeks as a herdsman. And that on the fateful day she went home when

1s her daughter in law had just left for the trading centre. That the appellant arrived with a rope and tied it around her neck and when she tried to make an alarm he tightened it further. That this all happened at 5.00 pm and the dogs barked as it happened. The witness added that at first, she did not know what his intentions were until the appellant 20 started asking for money and punching her on the face. That he then removed money from her clothes amounting to UGX 1,4O0,000, which she had just received from the sale of cows in the presence of the appellant.

25 Counsel for the respondent pointed out that the witness was truthful in re-examination when she said she had not paid the appellant any money during the two (2) weeks that she had employed him. She concluded that these pieces of evidence could sufllciently prove that theft occurred and that there was violence inflicted upon the victim by the appellant. Further that the appellant was correctly identified by

w-- ⁸ /v1^lL both PW3 and PW4. Counsel pointed out that the complainant was examined by a Police Surgeon and the evidence following the examination was admitted as PEI during the trial. That this exhibit indicated that there were bruises and contusions on the right side of her face and the neck. That the injuries were one-day old, which was consistent with the testimony of PW ¹.

She went on to submit that the rope that was used by the appellant during the robbery was recovered and tendered in evidence as PE4. That it was also consistently identified by prosecution witnesses. And that BrhPEl showed that the cause of the injuries was a blunt object and they were classified as dangerous harm. Counsel further submitted that the injuries sustained by the complainant, as shown in ExhPEl, clearly corroborated her testimony and that the class of injuries was sufficient to aggravate the robbery complained about.

With regard to the inconsistency about the amount of money alleged to have been stolen, she submitted that the fact that PW4 stated a different amount from that stated by PW3 was a minor inconsistency. She relied on Okwonga Anthony v Uganda, Supreme Court Criminal Appeal No. 20 of 2OOO, where it was held that where there are contradictions in the testimony of a witness, the deciding factor is whether they point to deliberate untruthfulness. She prayed that court hnds that the witness was not deliberately untruthful and therefore the inconsistencies were minor and of no substantial effect. 15 20

## Resolutlon of Ground ⁷

The appellant's complaint in this ground was specifically targeted towards the absence of sufficient evidence to prove that there was theft in the first place. In order to constitute the offence of aggravated robbery, the offence with which he was indicted, convicted and

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sentenced to a term of more than 27 years in prison, it is important for this court to consider this grievance, separate from his grievance under the second ground of appeal. This is the complaint that the trial judge did not consider his defence of *alibi*. It is for that reason that we have endeavoured to separate the submissions that were offered by counsel for the respondent on the two grounds of appeal and deal with the first ground on its own.

On the other hand, section 285 of the Penal Code Act provides for the definition of the felony of robbery as follows:

10 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.

The offence described by the provision above is sometimes distinguished 15 from the offence created by section $286$ (2) of the PCA, as amended, by referring to it as simple robbery.

Section 286 (2) of the PCA, as amended in $2017$ , provides as follows:

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(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 any other person jointly concerned in committing the robbery, shall on conviction by the High Court, be liable to suffer death.

25 In order to prove aggravated robbery, it is of vital importance to prove that theft of something capable of being stolen occurred. The principle was discussed by the Supreme Court in Sula Kasiira v Uganda, Criminal Appeal No 20 of 1993. The court considered the findings of the trial judge who relied on the following statement from Halsbury's Laws of England, 3^rd Edition, at paragraph 1484, as follows: 30

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"1484 Asportation. There must be what amounts in law to an asportation (that is carrying away) of the goods of the prosecutor without his consent; but for this purpose, provided there is some severance, the least removal of the goods from the place where they were is sufficient, although they are not entirely carried off. The removal, however short the distance may be, from one position to another upon the owner's premises is sufficient asportation, and so is a removal or partial removal from one part of the owner's person to another. There must, however, be a complete detachment of the goods if attached. In cases where asportation cannot be proved, but where the prisoner intended to steal and did some act in furtherance of that object, he may be convicted of attempting to steal. The offence of larceny is complete when the goods have been taken with a felonious intention, although the prisoner may have returned them and *his possession continued for an instant only."*

The court held that the law as restated there represented the legal 15 position in Uganda, regarding the act of taking or carrying away as an element of the crime of theft.

In the case of **Sula Kasiira** (supra) the appellant had been convicted of simple robbery because it was not proved that there was use of, or possession of a deadly weapon by the assailants. However, it was very 20 clear that the complainants had property in their possession which was taken away by the assailants. The complainants were two businessmen who were riding in a pick-up truck with UGX 4m, some merchandise and personal effects which were all taken and driven away from the

scene from whence the assailants stopped the complainants as $\overline{25}$ policemen dressed in uniforms. The motor vehicle, bags in which the complainants had carried their money and the merchandise were recovered in Iganga, a distance away from Wairaka, Jinja were the theft occurred. But the money was not recovered. The Supreme Court upheld the conviction because the prosecution proved that the theft of the 30 complainant's property occurred, though it was not proved that the assailants fired a gun while they were getting away from the scene of

the crime.

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In the case now before us, the testimony of the victim, Kemigisha (PW3) about the alleged theft at pages 8-9 of the record of proceedings, was as follows:

"I had just finished bathing when the accused came with a rope tied me around my neck and when I tried to alarm he tightened further. This was at about 5 p.m. Even the dogs came at the doorway and barked. I didn't know his intentions, he then asked for money while boxing me. He removed from my clothes Ug. Shs. 1,400,000/= which I got from sale of my cows and he was present when they paid me. After getting the money *he ran away.*

Muhindo Joyce came and found accused going out of my bedroom. The accused was arrested and he was taken to the dock. He was arrested by Kahaya Yofesi and Muhindo. They brought him to my house, they recovered from him Ug. Shs 700,000/= (seven hundred thousand), they gave it to me but it disappeared from me. The accused was taken to Kinyamaseke Police, later he was sent to Kasese."

In cross-examination, she confirmed that the appellant *did* strangle her with a rope. That she was taken to hospital and examined. That the appellant was arrested after about 30 minutes of leaving her house. That though money retrieved from him in the sum of UGX 700,000 was returned to her, she did not know where it went because she was in a bad state. She insisted that the appellant stole her money when he strangled her with a rope. She emphasised that she was not

From this testimony, it may be inferred that the victim was still 25 disoriented and in pain after she survived the ordeal of being descended upon and strangled with a rope. She most probably was shaken and incapable of attending to her own property. However, the place the appellant stole the money from was not clear to us. Was it within her clothes on her body, or in clothes in some other location in the room? If 30 it was somewhere on her body within her clothes, then the manner in which the prosecutor examined he in-chief by did not bring out the

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exaggerating what happened.

necessary evidence to prove the presence of the money and the location from whence it was taken by the assailant.

Joyce Muhindo, PW4, who was the victim's neighbour and ran to her rescue, confirmed that she saw the appellant in Kemigisha's house through a window. She related what she saw as follow:

"I know Kemigisha Joyce as my neighbour. On 22^nd March, 2013 as I was going to collect water at tap $(sic)$ I heard dogs barking from *Kemigisha's home. I went running to check what was happening. When* I peeped through the window I saw Kemigisha (PW3) lying on bed (sic) and accused was trying to strangle her. Accused saw me and ran away. I made an alarm. I followed accused making an alarm and he was arrested by Kahaya and Jackline. They brought him back to Kemigisha's home.

15 I found Kemigisha in a bad state. She would have died if I didn't come. I talked to her and she told me that the neck and eyes were paining. She told me the accused was the one who tried to strangle her, and he in fact stole her money, she told me Uq. Shs. $1,800,000/$ = (One million eight hundred thousand). The accused was taken to Kinyamaseke Police."

In cross-examination, PW4 confirmed that she found the appellant in 20 the process of strangling his victim. She was on a bed with a rope tied around her neck. And that when he saw her the appellant made his escape from the house. She clarified that she did not see the money that was recovered from the appellant.

We think that there is a great contradiction between the testimonies of 25 the victim (PW3) and PW4, the good Samaritan who came to her rescue. If indeed she found the appellant in the act of strangling the victim, at what point did he get the money from her, or from wherever it was in the room? Could he have gotten the money while holding the rope and strangling her? This is not made clear from the testimony of PW3; 30 neither does PW4's testimony help to clarify this vital evidence. There is

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also a contradiction about the people who arrested the appellant and brought the money back to Kemigisha. While Kemigisha stated that it was Kahaya and Muhindo who arrested the appellant, Muhindo herself in contradiction stated that tJle appellant was arrested by Kahaya and s Jackline. Besides, PW4 categorically stated that it was PW3 that told her that her assailant stole UGX 1,8O0,0O0 from her. The amount of UGX 1,8OO,0O0 is clearly inconsistent with the amount stated to have been stolen by the victim herself. In addition, PW4 in cross examination confirmed that she did not see the money recovered. Clearly her 10 testimony about the money was hearsay evidence and it is inadmissible to prove the ingredient of theft to constitute the offence of aggravated robbery.

Detective Sergeant Kibuura John Baptist (PWS) took the statements from the witnesses. He stated that he went to the scene of the crime at around 7. OO pm on the 22"a March 2012. Tbat he was informed that the appellant stole UGX 1,400,000 from the complainant with the aid of a rope which he put around her neck to strangle her. That he saw Kemigisha at the scene of the crime and she had a swollen cheek and scratches on her neck and was still in pain. That he recovered the rope that was used to strangle her and preserved it as an exhibit; it was admitted in evidence as ExhP4. 15 20

In cross-examination, PWS stated that he never recovered any property at the scene of the crime. He only learnt from the victim that UGX 1,400,000 was stolen from her. And that though he was informed that the same money was recovered from the appellant on arrest, he did not see it. Clearly, his testimony about the money was also hearsay and it is inadmissible. It was further watered down when he clearly stated that he did not see money that was recovered from the appellant when he went to the scene of the crime.

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In conclusion, we accept the submission of counsel that there were contradictions and inconsistencies in the testimonies of the witnesses as the prosecution tried to prove theft of money from the victim. These were so grave that they cannot be relied upon to prove that the appellant stole money from the complainant, and we find so.

However, because the appellant was positively identified at the scene of the crime it must still be determined whether he committed any offence, in the absence of conclusive evidence that he stole UGX 1,400,000 from the complainant, as indicted.

- ro The testimonies of the complainant and Joyce Muhindo have a-lready been analysed above. The two witnesses identified the appellant as an assailant who strangled the complainant with a rope. The rope was adduced in evidence and admitted as ExhP4. In addition to the rope, a medical report, EEhPEI was admitted in evidence. It showed that it - 1s resulted from an incident in which Joyce Kemigisha complained that she "rzas tied in the neck and beaten." She had a bruise on the right side of the face and contusions in the neck resulting from a blunt weapon. The injuries were classified as dangerous harm. The other relevant observations were given as: "DyspLngia (traumatic) as a result - 20 of strap muscle haemorrLrage. " Kemigisha Joyce testified that this occurred as the appellant forced her to give him money from the sale of her cow that day, which the appellant witnessed. The use of violence was definitely proved by the prosecution beyond a shadow of a doubt.

25 The appellant was indicted with aggravated robbery contrary to sections 285 and 286(21 of the Penal Code Act. Apart from the fact that theft of the money was not proved by the prosecution, we must also establish whether the weapon that the appellant was proved to have employed in

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the attack against the victim was a deadly weapon within the meaning of section 286 (3) of the Penal Code Act.

Section 286 (3) of the PCA defines a " deadly weapon" referred to in subsection (2) thereof as follows:

(3) In subsectlon (21 'deadly weapon" includes-

- (al (tf an lnstrument made or adapted for shootlng, stabbing or cuttlng and any imitation of such an lnstrument; - (iif any substance,

which when used for offensive purposes is capable of causing death or grievous harm or is capable of lnduclng fear in a person that lt ls likely to cause deeth or grievous bodlly harm, and

(bf any substance intended to render the vlctim of the ollence unconsclous. "

We note that subsection (3) (a) (i) presents a list of instruments as those that can be adapted for shooting, stabbing and cutting, and imitations thereof. It must therefore be determined whether a rope falls within the ambit of instruments that the lrgislature was considering when it amended section 286 of the Penal Code Act in 2OO7. 15

We are mindful of the presumption in statutory interpretation that where a list is included in a provision of a statute, it is presumed that it limits the interpretation of the provision to include only items in the list. It can also be presumed, under the ejusdem generis rule, that the list may extend to things that are of a similar nature or kind as those in the list. Halsbury's Laws of England, Comrnentary, r a paragraph 435 puts it thus: 20 25

> "Where the particular things named haue some common characteristic which constitutes them a genus, and the general u.tords can be properlg regarded as in the nature of a suLeeping clause designed to gaard against

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/1 1L\L bL accidental omissions, then the rule of ejusdem generis will apply, and the general words will be restricted to things of the same nature as those *which have been already mentioned but the absence of a common genus* between the enumerated words will not necessarily prevent a restricted construction of the general words if justified by the context. The ejusdem generis construction will be assisted if the general scope or language of the deed, or the particular clause, indicates that the general words should receive a limited construction or if an unlimited construction will *produce some unforeseen loss to the grantor."*

Scalia & Garner in their treatise, Reading Law; The Interpretation of 10 Legal Texts, Online Version,² state that the verb "to include" introduces examples, not an exhaustive list. They then go on to explain that:

"In normal English usage, if a group "consists of" or "comprises" 300 lawyers, it contains precisely that number. If it "includes" 300 lawyers, there may well be thousands of other members from all walks of life as well. That is, the word include does not ordinarily introduce an *exhaustive list, while comprise*—...—*ordinarily does. That is the rule both* in good English usage and in textualist decision-making. Some jurisdictions have even codified a rule about include.

*Often the phrase that appears is including but not limited to— or either* 20 of two variants, including without limitation and including without limiting the generality of the foregoing. These cautious phrases are intended to defeat the negative-implication canon ..."

It therefore appears to us that the list in subsection $(3)$ $(a)$ $(i)$ is not limited to **"shooting, stabbing or cutting."** It can be extended to other 25 instruments that are capable of causing death of producing fear that death or injury may be caused with the instrument.

In order to come to our final conclusion on this point, we deemed it necessary to consider the rule under the "related statutes cannon," which was explained by Scalia & Garner (supra) as follows;

² Retrieved from https://jm919846758.files.wordpress.com/2020/09/rlilt.pdf on 26th September 2022.

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Any word or phrase that comes before a court for interpretation is part of a *whole statute, and its meaning is therefore affected by other provisions* of the same statute. It is also, however, part of an entire **corpus juris**. So, if possible, it should no more be interpreted to clash with the rest of that corpus than it should be interpreted to clash with other provisions of the same law. Hence laws dealing with the same subject—being in pari materia (translated as "in a like matter")— should if possible be *interpreted harmoniously.* {*Emphasis supplied*}

The authors went on to draw an inference from an article by Justice $10$ Frankfurter in the Columbia Law Review³ in which he stated that statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes. That part of the statute's context is the *corpus juris* of which it forms a part, and this corpus can be dauntingly substantial. Further that what is required, "is a conspectus of the entire" 15 *relevant body of the law for the same purpose."*

The law on aggravated robbery cannot be considered without the punishment that is prescribed for it. The *corpus juris*, or body of law which relates to aggravated robbery therefore includes the TIA under which offenders are indicted and tried in the courts in Uganda and the 20 maximum punishment for aggravated robbery is stated in section 86 $(2)$ of the Penal Code as death.

We note that section 99 $(1)$ of the TIA provides that the sentence of death shall be carried out by hanging in accordance with the provisions of the Prisons Act. It is therefore a fact that is known that prisoners that suffer 25 the death sentence in Uganda are hanged by the neck till they die. The

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^&lt;sup>3</sup> Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Columbia Law Review, 527, 539 (147)

implement used to hang them is a rope (See Susan Kigula v Uganda, Supreme Court Constitutional Appeal No. 03 of 2006).

Ropes have also been used innumerable times by persons that take their own lives by strangulation at the neck to cause death; they have been employed in a manner that cuts off breath or breaks the neck. A rope therefore falls in the category of instruments *"which when used for*" *offensive purposes is capable of causing death or grievous harm*" or on the lower end of the scale, an instrument that is capable of inducing fear in a person of the possibility of both.

We therefore find that the rope that the appellant used against Joyce 10 Kemigisha was a *"deadly weapon"* within the meaning of section 286 (3) of the Penal Code Act. However, it was not proved that the appellant stole from the complainant in fulfilment of his intentions. Section 88 of the TIA therefore comes into force, and it provides as follows:

#### 15 88. Conviction for attempt.

When a person is charged with an offence, he or she may be convicted of having attempted to commit that offence, although he or she was not charged with the attempt.

We do not think that it would be correct to convict the appellant of attempted aggravated robbery as it is inferred from the provision above. 20 This is because there is an offence that falls squarely within the corners of his actions and intentions. In relation to that, section 387 of the PCA defines the word *"attempt"* as follows:

### 386. Attempt defined.

(1) When a person, intending to commit an offence, begins to put his or her intention into execution by means adapted to its fulfillment, and manifests his or her intention by some overt act, but does not fulfill his or her intention to such an extent as to commit the offence, he or she is deemed to attempt to commit the offence.

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$(2)$ It is immaterial—

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- (a) except so far as regards punishment, whether the offender does all that is necessary on his or her part for completing the commission of the offence, or whether the complete fulfillment of his or her intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of his or her intention; - (b) that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

We also note that section 388 of the Penal Code Act provides for punishment for attempts to commit certain felonies as follows:

Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of death or imprisonment for a period of fourteen years or upwards, with or without other punishment, commits a felony and is liable, if no other punishment is provided, to imprisonment for seven years.

#### {*Emphasis supplied*}

Pursuant to section 388 PCA, we observed that in respect of attempted robbery, there is a specific offence that is proscribed and the 20 punishment provided for in section 287 of the Penal Code Act as follows:

#### 287. Attempted robbery.

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- (1) Any person who assaults any other person with intent to steal anything and at, immediately before or immediately after the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen or to prevent or overcome resistance to its being stolen commits a felony. - (2) Any person who commits a felony under this section is liable— - (a) on conviction by a magistrate's court, to imprisonment for seven years; - (b) on conviction by the High Court, to imprisonment for life.

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Therefore, rather than convict him of an attempt to commit aggravated robbery under section 388 PCA, the appellant ought to be convicted of attempted robbery, with the result that the maximum sentence would be the higher punishment which is provided for by section 287 PCA. We therefore find that the trial judge erred in law and fact when he convicted the appellant of the offence of aggravated robbery and proceeded to sentence him to more than 27 years and 9 months in prison for it.

Ground 1 of the appeal therefore partially succeeds.

# 10 Ground ²

In this ground of appeal, the appellant complained that the trial judge erred when he dismissed his defence of alibi. He started off with ^a statement in the Memorandum of Appeal that the alibl was not destroyed by the evidence adduced by the prosecution.

# ¹⁵ Submlsslons oI Counsel

In his submissions, Mr Rwakakoko drew our attention to the testimony of the appellant on oath, at page 14 of the record of appeal, where he stated that he was in the Trading Centre at the time the incident occurred. He relied on the decision of the Supreme Court in Androa

20 25 Asenua & Another v Uganda, Criminal Appeal No.1 of 1998; [1998] UGSC 23, for the submission that one way of disproving an alibi is to investigate its genuineness. He went on to state that since the appellant pleaded an alibi, it was incumbent upon the prosecution to investigate it and place him at the scene of the crime, but they did not do so. He prayed that we allow this ground of the appeal.

In reply, Ms Nakafeero emphasised that the prosecution witnesses positively identilied the appellant at the scene of the crime. She referred

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us to the testimonies of PW3, PW4 and PWS. Further, that the appellant admitted that he was a resident of Kisomoro Village, Kinyamaseke, Kasese District. That he was a herdsman employed by the complainant (PW3) at the time he was arrested. She emphasised that the appellant admitted that on l}re 22"a March 2013, he went to PW3's home.

Counsel went on to submit that the defence ol alibi means that the person charged was at another place at the time that the offence was committed. She relied on the decision in Kato Kyambadde v Uganda, Supreme Court Criminal Appeal No. 3O of 2Ol4 to support her submission. She further submitted that trial judge did a thorough evaluation of the evidence adduced by the prosecution, at page 24 of the record, and that he came to the finding that the appellant's alibi was an afterthought. That as a result, the trial judge found that the appellant was correctly identified by the prosecution witnesses. She thus asserted that the appellant's alibi was sufficiently rebutted and discredited by the testimonies of PW3, PW4 and PWS and that ground 2 should fail. 10 15

## Resolutlon of Ground 2

The appellant's alleged alibf was contained in his sworn testimony, at page 14 of the record of appeal, and it was as follows: 20

> "On 22d Marcl4 2O13 I utas looking afier the cows. Mr. Businge came at 11:OO a.m. and found me uith cous and told me he uas looking for my money and told me to prepare myself. I lefi. him u.tith cotus and uent home. I washed mg clothes and I utent to (the) Trading Centre tuhere theg came and arrested me from; theg beat me up alleging that I robbed Jogce Kemigisha. At Police they alleged that I stole Ug. Stts. 1,4OO,OOO/ = tLen I was charged. I do not know about this alleged robbery. I haue neuer been paid mg salary arrears."

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The appellant does not state what time he left home to go to the Trading Centre. He also does not state where 'home' was for him at the time. But he stated that he was an employee of Kemigisha Joyce, the complainant in the case as a herdsman. When he was cross examined, he clarified that his home was also that of Kemigisha. That he got to this home at 11.00 am and spent two hours working. That at 2.00 pm, he left home and went to the Trading Centre in Mailo Kumi. Further that he was arrested at 4.00 pm by Yofeesi Kahaya.

The Supreme Court in Lt Jonas Ainomugisha v Uganda, Criminal **Appeal No. 19 of 2015** discussed what it takes to disprove an *alibi* in 10 the following passage:

> "One of the ways of disproving an alibi is to investigate its genuineness" as was stated in the case of Androa Asenua & Another Vs Uganda (Cr. Appeal No 1 of 1998) [1998] UG SC 23 where the Supreme Court of Uganda cited with approval the authority of **R Vs Sukha Singh s/o** Wazir Singh and Others 1939 (6 EACA) 145 where the Court of *Appeal for East Africa observed that:*

'If a person is accused of anything and his defence is an alibi, he *should bring forward the alibi as soon as he can because, firstly,* if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness *proceedings will be stopped."*

The court went on to discuss the law enacted in the United Kingdom to streamline the management of the defence of *alibi*, the Criminal Justice Act of 1967. Section 11 of that Act prohibits the defendant on an indictment to adduce evidence in support of an *alibi*, unless before the end of the prescribed period, he has given notice of particulars of the *alibi*. The court pointed out that it is desirable that we have a similar law, since it is the practice of accused persons in this jurisdiction to

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present such defences at the last minute. They cited with approval the decision of the East Africa Court of Appeal in R v Sukhah Singh (supra) and concluded thus:

"In absence of a statutory provision one would expect the prosecution to adduce evidence of the investigating officer who would testify as to whether or not an accused person raised the alibi at the earliest opportunity and the evidence would be one of the factors to take into account before admitting or rejecting the alibi."

We are guided by the principles espoused by the two apex courts above and shall follow them in making the decision in this appeal. 10

In the appeal now before us, we observed that there was no statement adduced by the appellant at the trial about a possible alibi. The investigating officer also did not advert to any such statement. It was therefore not possible to investigate the *alibi* which the appellant pleaded 2 years after the offence was committed during the course of his trial.

We note that according to PW3, Kemigisha, the attack on her by the appellant took place at about 5.00pm. The appellant was her employee for a period of 2 weeks prior to the attack. Muhindo Joyce (PW4) did not state what time it was when she rescued her neighbour from the 20 assailant. However, both Kemigisha and Muhindo Joyce knew the appellant well. Since he was in her employment for two weeks, Kemigisha could not have been mistaken about his identity when he put a rope to her neck in broad daylight. Likewise, Joyce Muhindo said she knew the appellant before that day because he lived with the 25 Chairman of her area, Sagara, before he went to work for Kemigisha. She too positively identified him while he was at the neck of the complainant. She made an alarm and when he ran out, she gave chase as she continued to make an alarm. He was eventually arrested by

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$B$ Kahaya and Jackeline. She again saw this happen because she was following him as he fled. PW4 also could not have been mistaken about the appellant's identity, neither could she have made a mistake about the person who was arrested.

5 PWS, Kibuura John, was the Detective in charge of Kinyamaseke Police Post on the 22"a March 2013. He testified that at around 7. OO pm on that day he was at the Police Post with his colleague, Sagara Mugenyi Dan, the Officer in Charge of the Police Post, when a group of people including the LCI Chairman came to the Post. They had arrested the appellant on suspicion of theft and a violent attack on Kamigisha Joyce, the complainant. She was among the group and she had injuries consistent with a physical attack on her neck and face and she complained of pain. 10

We therefore find that given the time of the offence and the incider,ts that followed before the appellant was handed over to the Police, his a/ibi was an afterthought. The trial judge thus made no error when he disregarded the alibi and convicted the appellant. Ground 2 of the appeal therefore had no merit at all and it fails. 15

In conclusion therefore, since it has been conclusively proved that the appellant participated in the crime against the complainant, we hereby quash the conviction for aggravated robbery that was imposed upon him and substitute therefore a conviction for attempted robbery. 20

## Ground 3

This was an alternative ground that the trial judge erred when he sentenced the appellant to 30 years' imprisonment, which was manifestly harsh and excessive in the circumstances. We already pointed out that the sentence that was imposed by the trial court was 25

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27 years and 9 months in prison, not 30 years as it was mistakenly stated in the Memorandum of Appeal.

## Submissions o,f counsel

5 10 The appellant's counsel submitted that the principles upon which an appellate court may interfere with the sentence imposed by the trial court were stated by the Supreme Court in Kyalimpa Edward v Uganda, Criminal Appeal No' lO of 1995. That the court relied on R v Haviland (19981 5 Cr. App. R(Sl 1O9 and held that an appropriate sentence is a matter for the discretion of the sentencing judge and each case presents its own facts upon which discretion is exercised by the judge. Further that it is the practice that an appellant court will not interfere with the discretion of the sentencing judge unless the sentence is illegal or unless the court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice.

15 20 Counsel went on that the trial judge should at the time of sentencing have considered that the evidence before him was contradictory. That the chain was broken as to the money that was recovered and the rope that was obtained from the son of the victim. He went on to submit that the testimony of PW3 suggests that there was a grudge due to the unpaid wages between the appellant and the victim. He added that the appellant was a first time offender and a young man of 2 1 years who was ready to reform and was remorseful. He prayed that this court sets aside the sentence of 30 years and substitutes it with a sentence of ⁷ years in prison. He concluded that the appeal be ought to be allowed,

the conviction quashed and the sentence set aside.

In reply, Ms Nakfeero submitted that the issues that were raised by the appellant's counsel were two: i) a harsh and excessive sentence in the

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circumstances and ii) an omission by the trial judge to consider mitigating factors in favour of the appellant.

She went on to state the role of the appellate court in considering sentences imposed by the trial court as it was stated in lllamutabanewe Jamiru v Uganda, Supreme Court Criminal Appeal No. 74 of 2OO7, worded slightly differently from that in Kyalimpa Edward (supra). That the court in Wamutabanewe (supra) included that the court may interfere where the sentencing court ignores and does not consider an important matter or circumstance which out to have been considered when passing the sentence, or where the sentence is imposed on the basis of a wrong principle. She repeated the dicta in Kyalimpa (supra), as it was stated by counsel for the appellant.

She went on to draw our attention to the manner in which the trial judge arrived at the sentence, at pages 29-30 of the record of appeal. She singled out his comment that the use by the appellant of a rope against his employer could have led to her death, and the fact that the stolen money has never been recovered. With regard to the assertion that the appellant was still a young man and remorseful, and therefore deserving of a lenient sentence, counsel referred us to Ojangole v Uganda, SCCA 15

- No 20 Of 2019, where the appellant prayed that his sentence for aggravated robbery of 34 years in prison be reduced, the court held that the appellant raised issues that did not relate to his sentence. That the fact that he had seven children to look after and other family obligations could have been raised with the trial court, not the appellate court. That 20 - the court then held that it would not reconsider the mitigating factors. That the court then confirmed the sentence of 34 years that was imposed by the trial court. She thus prayed that we disregard the mitigating factors that were considered by the trial judge as a diversion. 25 W

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Counsel further referred us to the decision in Kaddu Kavulu Lawrence v Uganda, SCCA No 72 of 2()18, where the Supreme Court appeared to cast doubt on the application of the principle of consistency in sentencing, and submitted that the decision of the court would imply that if the lower court had taken into account the aggravating and mitigating factors prior to passing sentence, they would not apply. She submitted that the appeilant deserved the sentence imposed and we should uphold it.

## Resolutlon of ground 3

- 10 We have considered the submissions of both counsel and the authorities that they cited. We have already found that the trial judge erred when he convicted the appellant for the offence of aggravated robbery and sentenced him for it. We therefore set aside the conviction and substituted it with a conviction for attempted robbery. It then - 1s follows that the sentence of 27 years and 9 months in prison for the offence also falls with the conviction because it was imposed upon wrong principles and facts that were misapprehended by the trial judge. We therefore hereby set the sentence of 27 years and 9 months in prison aside and shall impose our own sentence, pursuant to section l1 ofthe

20 Judicature Act.

## Sentence

At the sentencing of the appellant, counsel for the prosecution stated that he was a first time offender who had been on remand for a period of 2 years and 3 months. That he committed the crime against an old woman, his employer who he ought to have respected. He prayed for a deterrent sentence.

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For the appellant, it was stated that he was tempted by the devil to pay himself more than was due to him. That he was a lirst time offender and had been on remand for the period stated by the prosecution and it should be considered by the court. That the convict sought to be released. He himself prayed that the court be merciful.

We have considered the aggravating and mitigating factors raised by counsel for both parties and our own observations from the record' The convict was a young man of 18 years when he committed the offence' He was just entering adulthood. It is also not clear whether he actually stole the money. However, the attack upon the older woman was vicious and could have resulted in her death. we note that according to section 287 of the Penal Code Act, the maximum sentence for attempted robbery is life imprisonment, but we shall exercise our discretion to hand down a lower sentence since the theft of the money was not proved and the victim survived the ordeal. But that does not mean that the crime was not serious. The injury suffered by the victim was classified as grievous harm. The convict therefore deserves a deterrent sentence

but the court, on the other hand, must observe the principles of proportionality and consistency in sentencing.

In Muligande Zyedi v Uganda, Court of Appeal Criminal Appeal No 39 of 2013; I2O2L]1 UGCA 1, this court reviewed sentences for simpie robbery that had been imposed by this court and the Supreme Court, including Oryem Rlchard & Nayebale Peter v Uganda, Supreme Court Criminal Appeal No. 2 of 2OO2. ln that case, the Court upheld a sentence of 10 years' imprisonment for simple robbery. 20 25

In Capt Munyangondo v. Uganda, Supreme Court Criminal Appeal No, 5 of 2011, the court sentenced the appellant to B years' imprisonment for robbery, upholding the sentence that had been w

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imposed by the Court of Appeal. And in Muligande Zyedi (supra) this court, relying on the range of sentences, based on the decisions of the Supreme Court, sentenced the appellant to 6 years and 1 months' imprisonment.

- s In the appeal now before us, we have considered the aggravating and mitigating factors. We note that the appellant spent a period of 2 years and 3 months in lawful custody before his trial was completed. We think that a sentence of I I years in prison will be suflicient to meet the ends of justice in this case. We now deduct the period of 2 years and ³ 10 months spent in prison before conviction, as it was required of sentencing courts by the Supreme Court in Moses Rwabugande v Uganda, Criminal Appeal l{o. 25 ol 2OL4, in order to meet the requirements of Article 23 (8) of the Constitution; so that the appellant serves a period of 8 years and 7 months in prison. - This appeal therefore partially succeeds in that the conviction and sentence for aggravated robbery are hereby set aside and the conviction is substituted with that for the offence of attempted robbery. We hereby sentence the appellant to a period of imprisonment of 8 years and 7 months for attempted robbery to run from the 26th June 2015, the date on which he was first convicted. 15 20

v day of OV-\14./ 2022. Dated at Kampala this tcl

Rlchard Buteera 25 DEPUTY CHIEF JUSTICE

Irene Mulyagonja

JUSTICE OF APPEAL

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JUSTICE OF APPEAL $10$