[2024] UGHC 1249

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

## **HCT-17-CR-CN- 0006-2023**

# **(Arising from Nakasongola Chief Magistrate Courts vide Criminal Case No. 310 of 2022)**

**MUHANGUZI DAVID ………………. APPELLANT**

## **VERSUS**

**UGANDA ……………….. RESPONDENT**

# **JUDGMENT**

#### Introduction

1. By a memorandum of appeal lodged on 14.6.2023 by MS Ajju, Baleese, Bazirake Advocates, the appellant Muhanguzi David appealed the judgement of Hope Bagyenda, Chief Magistrate dated 8.5.2023 on five grounds of appeal to which I will revert later in the judgment. Both parties filed written submissions that I have carefully considered.

## Background facts.

2. On 28.7.2022, the appellant Muhanguzi David was charged in the chief magistrate's court Nakasongola with the offence of Kidnapping or abducting a person in order to subject him to harm contrary to Section 245 of the Penal Code Act. It was alleged that on 27.4.2022, at Kikooba village, Nakitoma sub – county, Nakasongola the appellant kidnaped or abducted a one Kasasa Samuel with knowledge and intent to subject him to harm or danger which charge, to which he pleaded not guilty. At the trial, prosecution presented seven (7) witnesses to prove its case, while the appellant had one (1) witness (himself). Towards the closure of the prosecution case, the accused through his advocate asked the trial court to recall the witnesses for examination and they were recalled. The trial court in light of the evidence presented convicted the appellant and sentenced him to seven (7) years imprisonment on the offence of kidnapping or abducting a person in order to subject him to harm c/s 254 of the Penal Code Act hence this appeal.

3. When the appeal was fixed for hearing on 30.08.2023, parties were directed to file their written submissions. The appellant filed his written submissions on 19.09.2023 while the respondent filed their written submissions on 24.1.2024. I have carefully considered submissions of both counsel.

#### Duty of the first appellate court

- 4. The duty of the first appellate Court is to re-evaluate the evidence adduced in the trial court and arrive at its own conclusions on issues of law and fact without disregarding the lower court judgment bur carefully weighing and considering it. **See Kifamunte Henry v Uganda Supreme Court Criminal Appeal No.10 of 1997.** - 5. The prosecution had a duty to prove the offence charged of Kidnapping or Abducting with intent to subject a person to grievous harm c/s Section 245 of the Penal Code Act. Section 241 of the Penal Code Act Cap. 120 defines abduction as compelling a person by force or any deceitful means to go to any place. Read together with Section 245, the ingredients of the offence that was charged are as submitted by counsel for the respondent are:

- a) Unlawful taking of a person without authority - b) The taking away is accomplished by force or deception - c) The taking away was against the will of the victim - d) The perpetrators were motivated by an intent to subject the person to grievous harm. - e) Participation of the accused person. - 6. It seems to me that it is the compulsion or forcible movement with the intention to put the victim in danger of being subjected to harm that must be proved in order for the offence under section 245 to be complete regardless that the victim was not actually subjected to grievous harm. - *7.* I note that the learned trial magistrate did not list ingredient (d) in her judgment which is: *'the perpetrators were motivated by an intent to subject the person to grievous harm',* an essential ingredient of the offence under Section 245 of the Penal Code Act. The trial magistrate analysed medical evidence which is an indication that she was alive to its relevance. As the first appellate court, I have the same powers as the trial court which means the omission by the trial magistrate was not fatal as I will re-evaluate the evidence in light of all ingredients and arrive at my own conclusions on the facts.

#### Burden of proof

:

8. The learned trial magistrate was alive to the high burden of proof in criminal cases which is proof beyond reasonable doubt. This common law standard of proof was re-affirmed in the classic case of **Woolmington V DPP [1935] AC 462** based on the common law doctrine of presumption of innocence in criminal cases where the House of Lords ( Viscount Sankey) held that

*'…If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given by either the prosecution or the prisoner…the prosecution has not made out the case and the prisoner is entitled to an acquittal'.*

9. This standard is now grounded in the constitutional right to be presumed innocent until proved guilty. ( Article 28(2) of the Constitution 1995 as amended)

### Resolution of the appeal

#### **Grounds one**

*That the learned trial Magistrate erred in law and fact to convict the appellant of the offence of Kidnap or abduction of a person in order to subject him to harm when all the ingredients of the offence had not been proved.*

#### **Ground two**

*The learned trial Magistrate erred in law and fact when she resolved that the victim's evidence had been corroborated.*

#### **Ground three**

*The learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby convicting the appellant.*

10. In considering these three grounds of appeal, I shall address myself to the ingredient of whether the appellant kidnapped the complainant in order to put him in danger of being subjected to grievous harm.

- 11. The state relied on seven witnesses to prove its case. The key witness was PW1 Kasasa Emmanuel Male, aged 38 years, resident of Nakitooma –Kikooba. From my re-evaluation of the testimony of the complainant, on 27.4.2022, at night, he was at his home in Nakitooma when unknown people came demanding that he opens the door but he declined and they forced the door open. Since there was light from a bulb, he was able to see three men enter the house including Sam, the appellant and two others. - 12. According to Kasasa PW1, the appellant hit him on the hand with a stick while another man hit him on the head. The group then handcuffed and chained his legs and placed him in a drone vehicle whose number plate he never identified. While in the vehicle, the men demanded to know where he kept his land title as they threatened to kill him. At 4 a.m, he was left at Bombo and he managed to run to a maize mill from where he was assisted. It was his testimony that he had been abducted at 12 midnight. Worthy of note is that in crossexamination, Kasasa described the appellant as a pastor who was also called Walugembe Denis and a resident of Nakitooma. Kasasa also revealed the appellant has a land dispute with him and his brothers. - 13. Counsel for the appellant relied on the police statement of the complainant which, incidentally, he never tendered in evidence as an exhibit but which he attached to his submissions in the trial court. Counsel for the appellant submitted that Kasasa never mentioned in his police statement that he was dropped off in Bombo but merely mentioned a place near a maize mill. It was the counsel's contention that this revealed major contradictions in the prosecution case which

should be resolved in favour of the appellant. I agree with counsel for the respondent that as defence Counsel never cross-examined Kasasa on the police statement, to introduce it in evidence at this stage is highly irregular. As held by the Supreme Court in **Criminal Appeal No. 21 of 2005, Muhwezi Alex and another v Uganda which was cited with approval Supreme Court Criminal Appeal No. 20 of 2000 Okwanga Anthony v Uganda (**unreported) the only way to prove a statement made to the police is to call the police officer who recorded it. I quote verbatim this holding

> '*The only way to disprove the witnesses' allegation of incorrect recording of their statements was to adduce evidence of rebuttal by the statements. If it was proved that the statements were correctly recorded, then they could be used to discredit the evidence in court of persons who made the statements. Only the Police Officers who had recorded the statements could do so."*

- 14. Relying on the same unproved police statement, counsel submitted that Kasasa informed the police that one of the kidnappers was a man who used stay at Sam's place . In my analysis of the testimony of the complainant, he mentioned three people who man handled him: Sam, another man and the appellant. I therefore find no merit in the submissions of counsel for the appellant which submission is based on a police statement that I have already discounted. - 15. Regarding the concerns of counsel for the appellant on where Kasasa was dropped, I find as a fact that he was moved from his home against his will in a drone vehicle and left away from the home. Whether he was dropped half a mile away or in Bombo is immaterial in proving the ingredient of kidnapping. What is material is that he was transported and then freed.

- 16. Kasasa's brother Kaye Amos aged 48 years resident on Nakitoma knew the appellant as a villagemate. On 27.4.2022, he saw the appellant driving a drone and then walk towards his fence. It was at this point he identified the appellant as there was solar lighting . When the dogs barked, the appellant then drove away. It is evident that Kaye did not witness the abduction of Kasasa but he did see the appellant in a drone vehicle the night Kasasa was abducted. Kaye went further to describe the clothes the appellant wore that night as an overall with a reflector. - 17. Noah Mukasa PW3 aged 26 years brother to Kasasa testified that on 27.4.2022, he was at his home when the appellant and one Dennis Salongo came to his home at night at about midnight and then they drove to Kasasa's home which was about ten meters away. He did not witness the kidnap. - 18. PW6 Olive Nakaze aged 32 years and wife of the complainant was at home with her husband on 27.4.2022 at about midnight when many people banged their door, entered the house and pulled him outside. She tried to follow him but was stopped, sprayed with pepper spray and warned she would be killed . She did not identify the appellant at the scene.

- 19. PW5 No. 598517 DC Ayewu Peter attached to Nakasongola Police investigated the case and ascertained that on 26.4.2022, a drone vehicle drove into Nakasongola police station with officers from CMI who informed the police authorities that they were in Nakasongola for investigations. Next day, DC Ayewu heard of the kidnap. He obtained a call log for the appellant's mobile number 0786544018 and ascertained he had been in Nakitoma after 11 p.m on 26.4.2022. Given that the appellant is a resident of Nakitoma, I will discount the evidence of the call log. I will however, accept his testimony on the drone vehicle which carried security officers who called at Nakasongola police station on 26.4.2022. - 20. In defence, the appellant gave a sworn statement in which he admitted to being in Nakitoma on 27.4.2022 at his home but denied participation in the abduction. He also admitted to having a land dispute with the complainant's family which is in court as attested by Kaye Amos PW2 and Kasasa PW1. - 21. As the complainant was a single identifying witness, I am alive to my duty as the first appellate court to look for circumstances that favoured correct identification as reiterated by the Court of Appeal in **Mubiru v Uganda (Criminal Appeal No. 34 of 2020) 2023 UGCA 25(30 January 2023)** citing **Abudalla Nabulere and two others v Uganda SCCA NO.9 of 1978.** In the latter precedent, the Supreme Court guided that the court should warn itself of the dangers of convicting an accused on evidence of a single identifying witness. Furthermore, that the court should consider factors such as lighting, distance between the accused and the witness, familiarity between the accused and the

witness, length of time of observation before accepting the evidence of identification.

- 22. Bearing in mind these principles, I am satisfied that the learned trial magistrate correctly found that the appellant was an active participant in the crime charged based on the fact that the complainant knew the appellant very well as a resident of the village with whom they had a land dispute and who moved with the appellant and others in the same drone vehicle from Nakasongola for almost four hours that night until he was left in Bombo and was therefore able to identify him by voice, among other favourable factors. - 23. From the foregoing analysis, the facts that emerge are that on 27.4.2022 soon after midnight, the complainant was forcefully taken from his home by a group of men moving in a drone vehicle. Although only the complainant identified the appellant as one of the abductors, DC Ayewu PW5 confirmed some security officers reported to Nakasongola police station on 26.4.2022. Kaye PW2 saw the drone vehicle which first went to his home which is about one mile from the home of Kasasa. - 24. Although no one identified the number plate, I accept it as a fact that the appellant and other abductors moved in a drone vehicle. Counsel for the appellant submitted that the failure by Kaye and Kasasa to identify the registration number plate of the drone means that their testimonies are unreliable. I disagree with this analysis because it is not so much the number plate but the type of car identified coupled with other circumstantial evidence such as being seen not only by eye witnesses but also by DC Ayewu. All these pieces of evidence put together including the fact that the appellant was well known to the

complainant as a village mate and a person with whom they had a land dispute constitute circumstantial evidence that leads to an inference incompatible with innocence of the appellant. The fact that the court case number was not given is an omission that casts some doubt as to the veracity of the existence of a land dispute but this is not fatal because what is material is that the complainant identified the appellant as one of his kidnappers.

25. Cognisant of the fact that Kasasa correctly identified the appellant as one of his kidnappers, I find that the learned trial magistrate properly evaluated the evidence and arrived at the correct conclusion that the appellant was an active participant in the abduction of Kasasa.

*Whether the kidnap was with intent to put him in danger of being subjected to grievous harm*

- 26. It was Kasasa's testimony that the appellant hit him with a stick on the head while another man hit him on the head as they took him out of his house. On 27.4.2022, Kasasa was examined on PF3 at Nakitoma Health Centre by Bukenya Henry clinical officer and found with an open wound on the scalp classified as harm. The said Bukenya Henry testified as PW5 and his evidence is that the complainant had blood stained clothes and he classified the injuries as harm. - 27. Counsel for the appellant submitted that the medical evidence is unreliable as Bukenya PW5 testified that the complainant had been beaten yet he did not witness this. Obviously the medical officer did not witness the assault and only recorded and testified to what the complainant narrated to him. Nonetheless, given that the complainant

testified that he was assaulted and given medical evidence in PF3, it is evident that the complainant was assaulted.

28. What is material is putting the complainant in danger of being subjected to harm. By kidnapping the complainant, uttering threats to kill him and putting him in a car that transported him away from his home as confirmed by both Kasasa and his wife Olive Nakate PW6, the offence under Section 245 was complete. I find that in principle, the learned trial magistrate arrived at a correct conclusion that the appellant abducted the complainant although she did not make a finding on the aspect of putting him in danger of being subjected to grievous harm.

## **Ground four**

*The learned trial Magistrate erred in law and fact in imposing a manifestly harsh sentence on the appellant.*

- 29. Learned counsel submitted that a seven-year sentence imposed on the appellant was harsh since the victim suffered minor injuries and was held for a few hours, that is to say, he was kidnapped on 27.04.2022 and returned home on 28.04.2022 and that the accused was also a first-time offender. - 30. The maximum penalty for this offence pursuant to Section 245 of the Penal Code Act is fifteen (15) years. The Supreme Court in **Kyalimpa v Uganda Criminal Appeal No.10 of 1995**(unreported) held that;

*"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with* *the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice." Cited by; Court of Appeal in Mubiru Yasin v Uganda Criminal Appeal No.030 of 2020.*

- 31. In considering the circumstances of this case, the appellant was part of a gang that kidnapped the victim and confined him for several hours and as such, the victim was terrified by these unlawful acts. Although the conduct of the appellant was criminal, I find the sentence of 7 years imprisonment excessive especially, when the complainant was released after four hours of confinement. In the premises, I shall reduce the sentence to three years with effect from date of sentencing by the trial court. - 32. In the result, as all grounds of appeal have failed, it is dismissed. The sentence of seven years is substituted with a sentence of three years with effect from the date of sentencing by the trial court.

## **DATED AT LUWERO THIS 31ST DAY OF JANUARY 2024 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

## **LADY JUSTICE HENRIETTA WOLAYO**

## **Legal representation**

Ajju, Baleese, Bazirake Advocates for the appellant Gloria Okello, Resident State Attorney, Luwero for the Respondent