[2025] UGCA 138

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASINDI

[Coram: Dr. F. Zeija, DCJ, C. Gashirabake and K. K. Katunguka, JJA.]

## CRIMINAL APPEAL NO. 0494 OF 2017

...................................... ODAGA ISAKA ::::::::::::::::::::::: **VERSUS**

<table>

UGANDA :::::::::::::::::::::::::::::::::::

(An Appeal arising from the decision of the High Court of Uganda held at Masindi presided over by Hon. Mr. Justice A. F. Rugadya Atwoki deliverd on 21^st August, 2017 in Criminal Session Case No. 0061 of 2012)

### **JUDGMENT OF THE COURT**

#### **Introduction**

- 1) The Appellant was indicted on 3 counts of aggravated robbery contrary to sections 285 and 286 (2) (a) of the Penal Code Act Cap 120. At the closure of the Prosecution's case, the trial Judge ruled that the Appellant had no case to answer in respect of count 2. The Appellant was then put to his defence in respect of count 1 and 3. He was convicted on both counts and sentenced to 30 years imprisonment less 6 years spent on remand in respect of each of counts 1 and 3. - 2) Consequently, the Appellant was handed down a sentenced of 24 years imprisonment on each of counts 1 and 3 to run concurrently. He was also ordered to refund one million shillings only (Shs. 1,000,000/=) upon release. - 3) Being dissatisfied with the decision of the trial court, the Appellant filed this appeal on the following grounds;

Page 1 of 17

- 1. That the learned Trial Judge erred in law and fact when he convicted the Appellant based on uncorroborated and unreliable identification evidence made under difficult conditions of night. - 2. That the learned Trial Judge erred in law and fact in finding that the prosecution had proved participation of the Appellant beyond reasonable doubt despite glaring inconsistencies and contradictions in the prosecution's case. - 3. The learned Trial Judge erred in law and in fact when he convicted the Appellant of the offence of aggravated robbery without evidence proving that he participated directly or indirectly in the commission of the offence. - 4. That the learned Trial Judge erred in law and fact in rejecting the Appellant's defence of alibi and failing to properly weigh it against the prosecution's case. - 5. That the learned Trial Judge erred in law when he failed to resolve the benefit of doubt in favour of the Appellant as required in criminal proceedings. - 6. The learned Trial Judge erred in law and in fact when he handed to the Appellant a harsh and excessive sentence of 30 years imprisonment. - 4) The Appellant prayed orders that; - a) The Appeal be allowed. - b) The conviction and sentence be quashed and set aside. - c) The Appellant be acquitted and released from prison forthwith.

#### **Background**

5) The facts as ascertained from the record of the lower Court are that on $13/7/11$ at 1:00 a.m. Kasaija James, Rwakanyegere Robert and Asiimwe Irene were asleep when the Appellant and another attacked their homestead. The Appellant and his colleague demanded for money while beating the three. Rwakanyengere surrendered six hundred thousand shillings only (Shs. 600,000/=), Kasaija surrendered fifty thousand shillings only (Shs. 50,000/=) and Asiimwe surrendered five hundred thousand shillings only (Shs. $500,000/$ =).

Page 2 of 17

- 6) During the said robbery or soon thereafter, the Appellant and another used deadly weapons on the victims including spears, knives, bows and arrows and a metal pipe. The victims were injured in the process. - 7) The prosecution produced six witnesses. In his testimony, the Appellant set up the defence of alibi and grudge to the effect that he was in house sleeping after returning drunk during the night in question. Furthermore, that there was a grudge between the Appellants boss a one Kusemerewa (DW2) a brother to PW5 and that the goats of PW1 (Asiimwe) used to stray in the garden of DW2 and when they were impounded, Asiimwe and Rwakanyegere included the Appellant in the impounding group hence the grudge. - 8) The court was satisfied that the appellant was properly identified and placed at the scene of the crime. Thus the trial court found that the prosecution had proven the ingredients of the offences on Counts 1 and 3 beyond reasonable doubt. The Appellant was found guilty and convicted of the offence of aggravated robbery contrary to sections 285 and 286 (2) (a) of the Penal Code Act Cap 120 on both counts 1 and 3 and consequently handed down a sentence of 24 years imprisonment on each of counts 1 and 3, to run concurrently.

### **Representation**

- 9) At the hearing, the Appellant was represented by Mr. Kasangaki Simon on state brief. Ms. Ainebyona Happiness Chief State Attorney represented the Respondent. Both parties filed written submissions which were adopted by this Court. - 10) On ground one, Counsel for the Appellant submitted that the issue was whether the Appellant was correctly identified at the scene. Counsel cited the cases of Uganda v George Wilson Simbwa (SCCA No. 37 of 1995), Abdalla bin Wendo v R [1953] 20 EACA 166 and Roria v R [1967] EA 583, where Court held that identification made

Page 3 of 17

Albert

under difficult conditions— especially at night—must be treated with utmost caution; Courts must consider the quality of light, the duration of observation, the witness's familiarity with the accused, and the possibility of mistaken identity, particularly under duress.

- 11) Counsel also cited the case of Uganda v George Wilson Simbwa; Supreme Court Criminal Appeal No. 37 of 1995 and urged that there was no proper identification made at 1:00 a.m., after the victims were abruptly awoken, confused, and under attack. He further submitted that the strength and consistency a bulb powered by torch batteries which was said to have provided light, were not independently verified. - 12) That PW1 claimed to have recognized the Appellant, but this was contradicted by inconsistencies with PW2, and the lack of corroborative detail (e.g., clothing, voice or any other distinctive features) undermines the reliability of her testimony. Counsel further submitted that critically, all assailants reportedly spoke Runyoro, yet the appellant testified—and was corroborated by PW4 and PW5—that he does not speak or understand the language, save only Alur and basic Kiswahili. That no prosecution witness testified that the appellant speaks Runyoro. That this inconsistency, which was not adequately addressed by the trial court, significantly undermines the credibility of the identification and points to a possible mistaken identity. That it would have been impossible for the accused to speak Runyoro during the attack on the complainants, as he did not know the language. That on the strength of this evidence alone, the trial court ought to have returned a verdict of not guilty. - 13) Counsel for the Appellant submitted that although the victims claimed to have known the appellant beforehand, prior familiarity does not eliminate the risk of honest error, especially in chaotic and stressful conditions. That the prosecution failed to present any additional evidence linking the appellant to the crime and that no weapons were recovered or forensically connected to him, and no physical evidence placed him at

Page 4 of 17

Croon

the scene. That while medical reports (PE 2 & 3) confirmed the victims were injured, they do not identify the appellant as the assailant.

- 14) Counsel for the Appellant submitted that the absence of corroborative evidence—such as recovery of the weapons or forensic links—should have raised reasonable doubt. He relied on the cases of Abdalla Nabulere v Uganda [1979] HCB 77 and Moses Kasana v Uganda [1992-93] HCB 14, to submit that identification under difficult conditions requires supporting evidence, which was lacking in this case. That the key test in assessing identification evidence is not merely the apparent reliability or honesty of the witness-since even a truthful witness can be mistaken-but whether the identification is free from the possibility of error. That a convincing witness may still be mistaken, and multiple witnesses can all be wrong. That the trial judge failed to adequately caution himself against relying solely on the identification evidence under these adverse conditions. That given the inconsistencies, lack of corroboration, and possibility of bias due to a prior grudge, the conviction was unsafe. That the accused pointed out that there had been previous disputes between him and the victims, which may have led the victims to suspect him first. - 15) Counsel for the Appellant further submitted that the medical evidence (PE2 and PE3) presented by the prosecution does not corroborate the testimony of the victims regarding the violence, the lack of physical evidence—such as the actual recovery of the weapons used. That this raises questions whether these weapons were actually used during the assault or if their use was merely alleged. - 16) On ground 2, Counsel for the Appellant submitted That the prosecution's case is riddled with material inconsistencies that go to the root of the matter and cast serious doubt on the credibility of the evidence presented. That these contradictions, which remain unexplained, fundamentally undermine the reliability of the identification and the alleged events to wit; regarding the number of rooms in the house of the scene of

Page 5 of 17

Noon

crime, PW1 and PW2 testified that the house had two rooms, while PW3 stated it had three. That this is not a minor discrepancy as it affects the layout and understanding of the crime scene, and reveals a lack of consistency in the prosecution's narrative; regarding the manner of arrest, that PW3 initially stated that police arrested the accused but later claimed that civilians, including himself, effected the arrest. That this contradiction undermines the credibility of his entire testimony regarding the appellant's apprehension.

- 17) Further that PW1 described the accused's clothing as a black and yellow T-shirt while PW2 mentioned a shirt with a white stripe; PW3 did not recall any clothing details at all. That these inconsistencies are significant as clothing is a critical element of visual identification; that PW1 stated she was beaten by the appellant whereas PW2 claimed that it was Muhammed who assaulted her; that PW1 claimed she gave the money directly to the Appellant but PW2, by contrast, testified that the money was handed to Muhammed whose role was to collect money; that PW3 stated that on the way to the hospital, they saw and identified both the Appellant and Muhammed trying to stop them but PW4 contradicted this, saying he only saw two men and recognized only Muhammed, who was not charged. Counsel cited the case of **Tindigwihura Mbahe v** Uganda [1987] HCB 6, where Court held that material contradictions, especially on identification, must be resolved in favour of the accused. He further cited the case of Candiga Swadick v Uganda, Crim. Appeal No. 023 of 2012, where this Court held that major inconsistencies, unless satisfactorily explained, warrant rejection of the evidence. - 18) On ground 3, counsel for the Appellant submitted that the prosecution did not adduce sufficient evidence to conclusively place the accused at the scene of crime. That there was no forensic, fingerprint, or recovery evidence linking the Appellant to the crime. That the weapons allegedly used were never recovered nor exhibited in Court and the money was never traced to the Appellant. That the law requires participation to be

Page 6 of 17

$\mathcal{N} \otimes \mathcal{N}$

proved by cogent evidence, not mere suspicion. He cited the case of **Uganda v Okethi** Okale & Others [1965] EA 555 was cited to support this position.

- 19) On ground 4, it was submitted for the Appellant that the Appellant returned home by 8:00 p.m. on the fateful night and slept at the residence of his employer, Kusemererwa Sam (DW2) which was corroborated by DW2, who testified that the appellant was asleep at home when he was awakened to respond to the robbery and even appeared unaware of the incident. That the trial judge dismissed the alibi based on speculation, suggesting the appellant could have left and returned before DW2 noticed. That this reasoning is not supported by evidence and amounts to conjecture. - 20) Counsel cited the case of Sekitoleko v Uganda [1967] EA 531 to argue that it was the prosecutions duty to disprove the defence of alibi. That DW2 (Kusemererwa), who corroborated the alibi, was initially a prosecution witness (PW5) but was discharged without explanation. That his removal suggests his testimony may have undermined the prosecution's case. He cited the case of Kanakulya Mohammed v Uganda, Crim. Appeal No. 60 of 2003 to argue that that failure to call material witnesses allows the court to draw an adverse inference against the prosecution. That in the circumstances, the trial Court erred in rejecting the alibi and failing to resolve the doubt in the appellant's favour. - 21) On ground 5, counsel submitted that the trial judge disregarded the fundamental principle that any reasonable doubt must be resolved in favour of the accused to wit; that PW4—a neutral and independent witness—testified that he only saw Muhammad, not Odaga. That this contradiction further weakens the prosecution's account and undermines the appellant's alleged presence after the incident. That PW1, PW2 and PW3 who were at the scene did not lead evidence on this charge which allegedly transpired at the same time.

Page 7 of 17

- 22) On ground 6, counsel for the Appellant drew to the attention of this Court precedents where lower sentences were imposed for aggravated robbery, many involving more serious aggravating factors to wit; in support of the principle of consistency in sentencing, counsel for the Appellant drew the attention of this Court to the following authorities; Adama Jino v Uganda, CACA No. 50 of 2006 where a sentence of death was reduced to 15 years, Ouke Sam v Uganda, CACA No. 251 of 2002 where the sentence of 9 years was confirmed, Tukamuhebwa David & Mulodo Yubu v Uganda, SCCA No. 59 of 2016 where a sentence of death was reduced to 16 years and 5 months, Muchunguzi Benon & Thomas v Uganda, CACA No. 008 of 2008 where a sentence of 15 years upheld. - 23) Further in Naturinda Tamson v Uganda, SCCA No. 25 of 2015 where a sentence of 16 years was upheld, Twesigye v Uganda, CACA No. 176 of 2013 where 18 months were handed down for aggravated robbery, Pte Kusemererwa & Another v Uganda, CACA No. 83 of 2010 where a sentence was reduced from 20 to 13 years, Kajura & Others v Uganda, CACA No. 136 of 2009 where a sentence of 10 years was confirmed, Amandu Alex v Uganda, CACA No. 153 of 2014 where a sentence was reduced from 30 to 10 years and Sekajja Fred v Uganda, SCCA No. 78 of 2020 where a sentence of 45 years was substituted with 14 years, 4 months. It was submitted for the Appellant that in many of the above cases, the offences involved greater harm or loss of life which was not the case in the instant appeal.

## **Submissions for the respondent**

24) In reply Counsel for the Respondent raised a preliminary point of law to the effect that grounds 1 to 5 raised by the appellant all offend rile 66 of the Court of Appeal Rules, for being a narrative and argumentative. That, these grounds are not specific on point of law or fact for which they fault the learned trial judge. The case of Kayanja Hassan vs Uganda, C. A. C. A 206 of 2021 was cited where grounds of appeal were struck out for offending rule 66 of the Court of Appeal Rules. Counsel for the respondent invited

Page 8 of 17

**NOW**

Court to evoke its powers basing on the cited authority to find that the instant appeal is incompetent for non-compliance with the rules of framing grounds of appeal in this Court.

- 25) The Respondent however proceeded to submit on grounds 1 5 concurrently and ground 6 separately in the event that this case was pleased to determine the merits of the Appeal. It was submitted for the Respondent that PW 1,2,3 all told Court that they knew the appellant prior to the commission of this offence as a worker to their neighbour Mugisa and all members who answered the alarm of the victims immediately after the robbery told Court that the victims were alarming while mentioning the name of the appellant and one Mohammad as their assailants. That the trial Judge found that PW 1,2 and 3 all testified to have identified the Appellant at the scene and each witness corroborated the other. - 26) Counsel for the Respondent invited Court to find that the evidence adduced against the appellant was well corroborated especially as to the participation of the Appellant in the instant case. That there was evidence strongly pointing to the fact that the appellant was properly identified during the commission of the offence to wit; PW 1 testified that they were 4 people who entered the room but he only recognised Odaga. - 27)PW1 further stated that the accused was too close to her as he demanded for the money and he stayed in the room for about one and half hours and they did not switch off their lights throughout the night. PW 2 also testified that he recognised the appellant at the point they were assaulting them and there was light in the room from a bulb. That PW3 testified that he recognised Odaga with the help of the light in the house, that the robbery took about an hour and the Appellant was close as he assaulted him and that PW 3 handed over the money to him; that the evidence of PW1,2,3 is corroborated by the evidence of PW4 who is a neighbour to the victims' and who

Page 9 of 17 answered their alarms and on reaching their home they disclosed to him that they had identified the assailants as Odaga and Mohammad.

- 28) The evidence by the prosecution satisfied the conditions for correct identification of the appellant as laid out in the case of Abdallah Nabulere & ors vs R₂CACA 9/1978, such as when the identification is made after a long period of observation, the length of time the accused was under observation, the distance, the light and familiarity of the witness with the accused. - 29) That the Appellant's alibi was destroyed by the strong evidence of PW 1,2,3 who identified the appellant during the commission of the crime. That the learned trial Judge cautioned himself as to the nature of the evidence adduced against the Appellant and that this evidence squarely placed the Appellant at the scene of crime. - 30) It was submitted for the Respondent that the Appellant's contention that the failure to exhibit in Court the weapons used in the robbery implied that the Respondent had failed to prove the case against the Appellant beyond reasonable doubt. Counsel cited the cases of Mumbere vs Uganda, SCCA 15/2014 and Mutesasira Musoke vs Uganda SCCA 17 of 2009 where the Supreme Court held that in a case of aggravated robbery where the exhibits used in the commission of the offence, for reasons such as being hidden or destroyed or purposely kept away cannot be exhibited in the trial Court the prosecution is entitled to adduce evidence of the description of those items or weapons used in the commission of the offence as well as injuries suffered by the victim of the offence as sufficient and proper proof. - 31) Counsel for the Respondent invited this Court to find that the learned trial Judge correctly found that the victims had sufficient time, light to see and observe the appellant. That there were no inconsistences in the evidence adduced by the respondent and that the trial Judge properly convicted the Appellant.

Page 10 of 17

32) In response to ground 6, it was submitted for the Respondent that the sentence imposed on the Appellant is not harsh nor excessive. That the learned trial Judge listened to the appellants mitigating factors and considered the same in arriving at the sentences imposed on the Appellant. Counsel for the Respondent cited the case of Kyalimpa Edward vs Uganda SCCA No 10 of 1995, where the Supreme Court held that an appropriate sentence is a matter for the discretion of the sentencing Judge.

## **Consideration of the appeal**

33) Before we delve into the merits of this appeal, we find it pertinent to first deal with the preliminary objection raised by Counsel for the Respondent. The Respondent's contention is that grounds 1 to 5 raised by the Appellant offend rule 66 of the Court of Appeal Rules, for being a narrative and argumentative. Rule 66 (2) of the Judicature (Court of Appeal Rules) Directions provides;

"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."

- 34) The challenged grounds (1-5) in the Memorandum of Appeal are set out in paragraph 5 of this judgment. We need not reproduce them. Those grounds are clearly not short and or brief as required by law under Rule 66 (2) of the Judicature (Court of Appeal Rules) Directions. They are rather long and explanatory. - 35) However, the challenged grounds of appeal do specify the particular ingredients of the offence where the Appellant contends that the learned trial Judge erred in fact and in law. The case of Kayanja Hassan vs Uganda (supra) can therefore be distinguished Page 11 of 17

from the case at hand since in the former, the ground of appeal struck out for offending rule 66 of the Judicature (Court of Appeal Rules) Directions was found to be a general narrative that did not specify the particular ingredient(s) of the offence where the learned trial Judge erred whereas in the instant case the Appellant specifies the points of law and fact where he contends that the learned trial Judge erred. In the premises the preliminary objection raised by the Respondent is disallowed. We shall proceed to consider the appeal on its merits.

- 36) We have carefully considered all the materials submitted in this appeal including the record, the submissions of counsel for either side, the law and authorities cited and those not cited. This being the first appeal, we shall proceed under Rule 30(1) (a) of the Judicature (Court of Appeal Rules) Directions, SI 13-10. This Court, has a duty reappraise the evidence from the decision of the High Court and make inferences of fact and law of its own mind without disregarding the judgment appealed from but by carefully weighing and considering it. (see: Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997). We therefore, now proceed to consider the grounds of appeal on merits. - 37) Grounds 1,2,3,4 and 5 shall be considered concurrently. This is because they all relate to the participation of the Appellant in the alleged crime. Ground 6 will be considered separately. - 38) The Appellant submitted that he was convicted and sentenced basing on uncorroborated and unreliable evidence. The Respondent disputed this contention. A keen perusal of the record shows that PW1,2 and 3 all testified that they knew the appellant prior to the commission of the offence as a worker to Mugisa their neighbour. These witnesses testified to have identified the Appellant at the scene. We find that their testimonies corroborated each other. PW1,2 and 3 all testified that they recognised Odaga the Appellant. PW1 indicated that the Appellant was too close to

Page 12 of 17

her when he demanded for money and he stayed in the room for one and a half hours. That there was light from a bulb powered by batteries which was still on at the time of the incident. PW2 testified that he recognised the Appellant at the time when they were assaulting them. PW3 testified that he recognised the Appellant with the help of light in the house and that the robbery took about one hour and the Appellant was too close to him as he was assaulting him and he handed over the money to him.

- 39) The evidence of PW 1,2 and 3 was corroborated by the evidence of PW 4 who was a neighbour to the victims and who answered their alarms and on reaching the victims' home, they all disclosed to him that they identified the assailants as Odaga and Mohammad. - 40) It was submitted for the appellant that the evidence adduced by the prosecution at the trial did not satisfy the conditions for correct identification. The Respondent challenged this submission. The identification evidence of the victims was that it was the Appellant and Mohammad who attacked them. That the robbery took about one hour while the Appellant assaulted the victims and demanded for money. The identification evidence of the three eye witnesses and the conditions under which it was made placed the Appellant squarely at the scene of crime. - 41) On the issue of the Appellant not understanding Runyoro, we agree with the finding of the trial Judge that the Appellant in his testimony stated that he had stayed in Bunyoro for a year doing casual work and this was sufficient time for him to learn some words that he used to demand for money. - 42) The Appellant pleaded the defence of alibi. However, we are in agreement with the finding of the trial Judge that the alibi put across by the Appellant was destroyed by the evidence of PW 1,2 and 3 who identified the Appellant during the commission of the crime. It was submitted by Counsel for the Appellant that the failure to produce exhibits in Court such as he weapons used during the robbery implied that the Page 13 of 17

$\sqrt{80}$

Respondent had failed to prove the case against the Appellant beyond reasonable doubt. We agree with the authority in Mumbere vs Uganda SCCA 15/2014 cited by Counsel for the Respondent to the effect that in a case of aggravated robbery where the exhibits used in commission of the offence, for reason such as being hidden or destroyed or purposely kept away cannot be exhibited in Court, the prosecution is entitled to adduce evidence of the description of those items or weapons used in the commission of the offence. We find that the charge preferred against the Appellant was proved beyond reasonable doubt and that the appellant committed the offences with which he was convicted.

- 43) It was submitted by counsel for the Appellant that the trial Judge convicted the Appellant of the offence of aggravated robbery without evidence proving that he participated directly or indirectly in the commission of the offence. Counsel argued that there was no evidence of finger prints to link the Appellant to the scene. We are of the view that there was direct evidence of PW1, PW2 and PW3 on the record of the lower Court who identified the Appellant at the scene and therefore evidence of ballistic experts (finger prints) was not necessary. - 44) It was submitted for the Appellant that there were inconsistences in the evidence adduced by the Respondent to wit; regarding the number of rooms in the house of the scene of the crime, the prosecution's witnesses' narrative regarding the manner of arrest, the accused's clothing colour, as to who of the Appellant and a one Mohammad beat PWI, as to who of the Appellant and Mohammad was actually given money by PW1; as to whether the Appellant was further identified by the victims on their way to the hospital or as to how the Appellant was arrested. Upon scrutiny of the evidence, we are of the view that these inconsistencies are minor and are not deliberate. They do not go to the root of this case. They relate to individual perceptions of the events and are not intended to mislead court. Minor inconsistencies are immaterial.

Page 14 of 17

Noor

- 45) In the case of Abdallah Nabulere vs. Uganda Criminal Appeal No.9 of 1978, this Court held that the Appellant was identified by two witnesses whose testimonies corroborated each other. It was not a question of a single identifying witness or that of uncorroborated evidence of a child of tender age. This Court thus found that although there were inconsistencies, as to whether the deceased was beaten in the house or outside at the kraal, these were minor and immaterial. - 46) Hearing of the case at hand took place almost 5 years from the date of this incident and such minor incontinences would naturally follow due to lapse of a long time from the date of the incident coupled with individual perceptions of the events. It therefore does not matter whether the Appellant was wearing yellow or black or white or whether the house of the scene of the crime had two or three rooms or whether it was the Appellant or Mohammad who actually received the stolen money or assaulted the victims. - 47) We are in agreement with the finding of the trial Judge that there was light from a bulb powered by batteries sufficient to identify the Appellant, the victims had money because they were organising a wedding and the Appellant was identified by three witnesses who knew him and corroborated each other. The incident took between one to one and a half hour which was enough to identify the Appellant. We agree with the findings of the trial Judge that the alibi of the Appellant was disproved. The goats of Asiimwe were straying into the garden of DW2 (Appellant's boss) and not the Appellant. If there was a grudge over straying animals, it would be between Asiimwe and DW2 and not the Appellant. In any case evidence on the record of the lower Court indicates that DW2 came to the aid of the victims upon hearing of the alarm. Even if it is said there was a grudge between PW1 and the Appellant over impounding straying animals, the Appellant was still identified at the scene by PW2 and PW3. - 48) As rightly observed by the trial Judge, it is interesting that the Appellant who was staying just about 100 to 150 metres from the victims did not respond to the alarm by Page 15 of 17

the victims and even seemed unbothered even when DW2 informed him that his neighbours had been attacked. The Appellant possibly knew what he had done and he was trying to pretend to be sleeping. The Appellant and DW2 were not staying in the same house, and therefore, the Appellant went and committed the offence at the victims' house where he was identified before going back and pretending to have been sleeping. We agree with the trial Judge's finding that the Appellant was placed at the scene of the crime and his participation proved beyond reasonable doubt. The learned trial Judge properly convicted the Appellant. Grounds 1,2,3,4 and 5 do fail for lack of merit.

- 49) In respect of ground 6 of appeal, it was submitted for Appellant that a sentence of 30 years imprisonment is harsh and excessive. In line with the principle of consistency in sentencing the Appellant's counsel cited a number of cases as indicated in paragraph 22 and 23 herein, where lower sentences were imposed. I need not reproduce those cases here. However, we are mindful of the fact that in other cases such as Nakalyaka Fabiano v Uganda Criminal Appeal No. 141 of 2018, this Court reduced a sentence of 35 years imprisonment to 30 years imprisonment in an offence of aggravated robbery. - 50) We are alive to principles upon which an appellate court should interfere with a sentence as considered in Kyalimpa Edward versus Uganda, Criminal Appeal No. 10 of 1995, where the Supreme Court referred to R vs. De Haviland (1983) 5 Cr. App. R(s) 109 and held thus:

"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 trial 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: Ogalo s/o Owousa vs. R (1954) 21 E. A. C. A. 270 and R vs. Mohammed Jamal (1948) 15 E. A. C. A. 126".

Page 16 of 17

51) It is our finding therefore, that the sentence meted onto the Appellant was neither harsh nor manifestly excessive. We find no reason to interfere with the sentence passed down by the trial Judge. From the sentencing factors recorded by the lower Court, we find the sentence appropriate. Thus, this ground of appeal also fails.

## **Decision of Court**

52) In the end result, we find no merit in all the grounds raised in this appeal. This appeal is dismissed. The Appellant will serve his sentence on the terms handed down by the trial Judge.

We so order.

2025. day of $\overline{\phantom{0}}$ Dated at Masindi this.... AMAR Flavian Zeija (PhD)

DEPUTY CHIEF JUSTICE

**Christopher Gashirabake**

**JUSTICE OF APPEAL**

Ketrah Kitariisibwa Katunguka **JUSTICE OF APPEAL**