[2024] UGCA 207

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT ARUA

*Coram: Kiryabwire, Mulyagonja & Luswata, JJA*

## CRIMINAL APPEALS NO. 123, 126 and 128 OF 2022

1. OUMA COTA **:::::::::::::::::::::::::::::::::::::** 2. OKOK DENIS alias LARACH 3. ONEKA DAVID AND

**::::::::::::::::::::::::::::::::::::: UGANDA** 10

(Appeal from the decision of Philip Odoki, J. delivered at Gulu on $21^{st}$ July 2022 in High Court Criminal Session Case No. 0243 of 2020)

#### JUDGMENT OF THE COURT

#### **Introduction** 15

$5$

The Appellants were indicted on two counts of aggravated robbery contrary to Sections 285 and 286, attempted murder contrary to Section 204, assault occasioning actual bodily harm contrary to Section 236, all of the Penal Code Act. They were convicted after a full trial and sentenced to 24 years, 11 months and 28 days for aggravated robbery, 14 years, 11 months and 28 days for attempted murder, and 2 years' imprisonment for assault occasioning actual bodily harm, a period they had already served by the time they were convicted.

#### **Background**

The background, as could be ascertained from the Record, was that on 25 26^th January 2017 at Paomo Village in Amuru District, Ocira Richard was at home with this mother, Auma Lucy, and his sister Apiyo Jeniffer. At about 1.00 p.m. they were attacked by the Appellants who were in the company of Ouma Cota (now deceased) and others still at large. The assailants robbed Ocira of his panga and hoe valued at 18,000 shillings and used a panga to cut him on his head. It was alleged that the assailants also robbed Auma Lucy of her beans, sorghum, a hen and two hoes and attempted to use the panga to cut her but she deflected the blow with her hand causing the panga to cut it. She was also assaulted by one of the assailants who kicked her at the waist causing actual bodily harm.

The Appellants together with Ouma Cota were arrested, charged and indicted with the offences stated above. They each pleaded not guilty but the trial Judge found sufficient evidence to convict and sentence them. Being dissatisfied with both conviction and sentence, they appealed to this court on the following four grounds of appeal: 10

- 1. The learned trial Judge erred in law and fact when he misdirected himself and held that the defence of alibi set up by the Appellants had been disproved by the prosecution who proved beyond reasonable doubt that the Appellants were at the scene of crime as participants in the commission of the offence thereby occasioning the Appellants a miscarriage of justice. - 2. The learned trial Judge further erred in law and fact when he believed the respondent's case that was tainted with glaring inconsistencies and contradictions to convict the Appellants thereby occasioning a miscarriage of justice. - 3. The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on Record and came to the wrong conclusions that the Appellants committed the offences charged thereby occasioning a miscarriage of justice.

4. That the learned trial Judge erred in law and fact when he imposed harsh and excessive sentences upon the Appellants thereby occasioning a miscarriage of justice.

## Representation

5 At the hearing of the appeal on 2l"t November 2023, the Appellants were represented by Mr. Onencan Ronald holding the brief for Mr. Michael Pirwoth. The respondent was represented by Ms Immaculate Angutoko, a Chief State Attorney in the Office of the Director of Public Prosecutions, holding the brief for Mr. Joseph Kyomuhendo, Chief State Attorney in the same office. 10

Counsel for the respondent informed court that the 1"t Appellant, Ouma Cota, died in prison. A report of death was presented to confirm it. The Appeal by Ouma Cota therefore abated on account of death and the court proceeded to consider the 2"a and 3.a Appellants' appeals.

Counsel for both parties liled written submissions before the hearing date as directed by the Registrar. They each prayed that the submissions be adopted as their final arguments in the appeal and their prayers were granted. 15

We observed that in the submissions filed on 7th November 2023, counsel for the Appellant addressed only three grounds of appeal, leaving out ground 2 stated in the Memorandum filed on the same date. We understood that to mean that the Appellants abandoned that ground of their appeal leaving the court with only 3 grounds to consider. 20

The Respondent opposed the Appeal and in her submissions, Ms Angutoko addressed the three grounds that counsel for the Appellants addressed,

omitting ground 2 as counsel for the Appellants did. Ground 3 therefore became ground 2 which she attacked in the following preliminary objection.

## Preliminary objection

- 5 Ms. Angutoko contended that ground 2 (ground 3 in the Memorandum of Appeal) offended rule 66 (2) of the Judicature (Court of Appeal Rules) Directions, the "Court of Appeal Rules." Relying on Turyahabwe Ezra & LS Others v. Uganda, Criminal Appeal No. 0156 of 2O1O and Mutebi Ismah & Kiwanuka Mubiru v. Uganda, Criminal Appeals No. O8O and - O89 of 2O2L, where the court struck out a ground of appeal that did not comply with Rule 66 (21 tf the Rules of this Court, she submitted that ground 2 did not specify any aspect of the law or fact that the trial Judge failed to address. Further, that the requirement in rule 66 (2) is not a mere technicality that can be cured by Article 126 (21 (e) of the Constitution. She 10 - relied on Kasirye Byaruhanga & Co. Advocates v. Uganda Development Bank, SCCA No.2 of 1997, where it was held that Articie 126(2)(e) of the Constitution is not a magic wand in the hands of litigants who fail to follow procedure that is specified by law. Counsel contended that it was not clear from the ground whether the Appellants were contesting all the ingredients of the offences of aggravated robbery and attempted murder or just their participation. She thus prayed that ground 2 be struck out. 15 20

In reply, Mr. Onencan argued that the objection was devoid of merit. Citing Bogere Moses & Another v. Uganda; SCCA No. 1 of 1997 and Re: Christine Namatovu Tebajukira 1L992-L993] HCB, he submitted that the administration of justice requires that the substarce of disputes be investigated rather than hindered and that errors and lapses should not

debar the Appellants from the pursuits of their rights. He prayed that the objection be overruled.

## **Resolution of Preliminary Objection**

Ground 2, which was originally ground 3 in the Memorandum of Appeal, was couched in the following terms: $\mathsf{S}$

> "The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on Record and came to the wrong conclusion that the Appellants committed the offences charged thereby occasioning a *miscarriage of justice.*"

We are mindful of the fact that It is the duty of this court to re appraise 10 the whole of the evidence adduced before the trial court under rule 30 (1) of the Court of Appeal Rules. However, rule 66 (2) of the same 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.*

Ground 2 as it stands requires this court to reappraise the whole of the evidence, which is its duty. It requires the court to do so in respect of all the ingredients of all the offences in respect of which the Appellants were indicted. However, rule 66 (2) of the Rules of this court delimits this and

is mandatory. An Appellant who comes to this court on appeal must 25 concisely state the error(s) of law by the trial Judge or the particular pieces of evidence which the Judge failed to evaluate properly, being the error(s) that this court will address in the appeal.

$\mathsf{S}$

We accept the submission that ground 2 of the appeal was imprecise; it stated no particular point of law in respect of which the trial Judge erred. Neither did it state particular facts that were misconstrued by the trial Judge in his decision.

5 Ground 2 offends Rule 66 (2) of the Rules of this court and we have no alternative but to strike it out, and we hereby do so.

We shall now proceed to address grounds 1 and 3 of the appeal as they were set out and addressed in the submissions of the parties to this appeal.

# 10 Ground ¹

The Appellants' grievance in this ground was that the trial Judge erred when he ignored the defence of alibi set up by the Appellants, which was not destroyed by the evidence adduced by the prosecution, and therefore he occasioned a miscarriage of justice when he convicted them.

## ¹⁵ Submissions oJ Counsel

Mr. Onencan for the Appellants submitted that the learned trial Judge misdirected himself when he held that the defence of alibi set up by the Appellants was disproved by the prosecution who proved, beyond reasonable doubt, that the Appellants were at the scene of crime and therefore participated in the commission of the offence.

Counsel referred to the 2"a Appellant's defence, at page 33 of the Record of Appeal, where he asserted that he was in the garden from 7.00 am to 12.00 pm when he returned to his home and stayed there. That he did not see A1, Ouma Cota, and did not hear of the allegations. That he saw Ouma on 27 th January 2Ol7 when he went to his home with a swollen right cheek

and told him that he was from the police station because 4 people assaulted him namely: Auma Lucy, Ocira and Apici, but he had forgotten the name of the fourth person. He narated the events that led to the arrest of the 1"t Appellant, stating that he was arrested because he carried Ouma (the deceased Appellant) to the police station and also because of a land dispute. It was his submission that the prosecution did not discredit the evidence that on the fateful day, the 2"d Appellant was in the garden from 7:00am to 12.00 pm.

Counsel went on to state that the 2nd Appellant in his testimony stated that on 26th January 2017, he spent the whole day at home because he was drunk after taking alcohol from 9:00pm the previous night to 1O:OOam that morning. That he thus suffered a hangover and went to bed. Further that the following day, he took some more alcohol and stayed at home. That he was arrested from Amuru Court on 19th April 2Ol7 where he was a witness in a land dispute between Auma, Angola and Kaci. 10 15

Counsel submitted that while finding that the Appellants were at the crrme scene as participants in the commission of the offence, the trial Judge relied on the isolated evaluation of the evidence led by the prosecution without considering that of the l"t and 2"4 Appellants. He relied on the decision in Ssekitoleko v. Uganda 11967l E. A 531 on the duty of the prosecution to disprove an alibi set up by an accused person; and Bogere Moses & Another v Uganda; SCCA No. I of 1997 on what amounts to placing the accused person at the scene of the crime. He then submitted that the prosecution did not challenged the Appellants'alibis. He prayed that ground one of the appeal succeeds. 20 25

In reply, Counsel for the respondent submitted that the trial Judge came to the correct conclusion regarding the Appellants' defence of alibi. She

referred to Woolmingtom v. DPP (19351 AC 462 and Miller v. Minister of Pensions ll947l2 ALL ER 372, with regard to the burden and standard of proof observed by the courts in criminal prosecutions.

She went on to agree that the Appellants'counsel rightly cited Sekitoleko

v. Uganda (supra) but failed to apply it to the facts and evidence in this case. She referred to Thomas Nkurungira alias Tom v. Uganda, Criminal Appeal No. 168 of 2O11, where it was held that the defence of alibi requires certainty of three things namely: the place at which the crime was committed, the time at which the crime was committed and the whereabouts of the accused at the material time. 10

Ms. Angutoko then asserted that the prosecution adduced evidence that placed the Appellants at the scene of the crime at the material time the offence was committed. She referred court to the testimony of Ocira Richard (PW2), at page 19 of the Record, where he stated that he knew the Appellants, that they fought him and robbed him of a hoe arrd a panga. That he also saw Ouma Cota (now deceased) together with his son and others and that they attacked him and cut him on the head with a panga.

Counsel went on to state that this evidence was corroborated by that of Auma Lucy (PW3) who testified that the Appellants were known to her and that they robbed her of her property in the night of 26rh January 2017. Further, that Ouma Cota used a panga to cut Ocira (PW2) while the 1"t Appellant had a club. That the other people who were with them entered her house and made off with various items therefrom such as sorghum, beans, hoes and a chicken. 20

Counsel submitted that the conditions existing at the time of the attack favoured positive identilication since the witnesses knew the Appellants 25

for a long time before the attack and had sufficient tirne to identify them, thereby ruling out the possibility of a mistaken identity. Counsel further submitted that the testimonies of PW2 and PW3 were not shaken during cross examination. She thus concluded that the trial Judge evaluated both the prosecution evidence and the Appellants' defence of alibi and found that they were squa-rely placed at the scene of crime. Further, that even if it was not proved that the Appellants carried property away from PW3's house, they were working with their accomplices to achieve a common goal.

- Counsel for the respondent then drew court's attention to Section 2O of the Pena-l Code Act which provides for the common intention to prosecute arr unlawful purpose, and citing Obwalatum Francis v. Uganda; SCCA No. 3O of 2015, submitted that common intention can be inferred from the presence of the accused persons, their actions and the omission of any of them to disassociate themselves from the action. She argued that the Appellants were part of a gang that attacked and robbed the victims, working hand in hand to ensure that their mission succeeds, and none of them restrained the other gang members. She emphasised that the Appellants and their accomplices all participated in the robbery. 15 10 - In rejoinder, counsel for the Appellants submitted that there was no evidence adduced by the prosecution to show that the assailants had a common intention. That the evidence was weakened by further evidence that Cota Ouma went and started beating Ocira, pulled the grass from the hut and attempted to torch it while the others entered the house and removed properties therefrom. He argued that this rajsed doubt as to the existence of a common intention as the prosecution failed to prove what purpose the assailants sought to achieve. 25 20

## **Resolution of Ground 1**

$\mathsf{S}$

In R v. Chemulon Wero Olango (1937) 4 EACA 46, it was held that the burden on the person setting up the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible to have committed the imputed act. The Supreme Court in **Festo Adoroa** Asenua v. Uganda [1998] UGSC 23 cited with approval the principle laid down by the East African Court of Appeal in **R v. Sukha Singh s/o Wazir** Singh & Others (1939)6 EACA 45 that:

"If a person is accused of anything and his defence is an alibi, he should bring forward that 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 $2^{nd}$ and $3^{rd}$ Appellants did not raise their alibis at the earliest opportunity because prosecution was never informed about them at the commencement of the trial. When they took their pleas on 11^th September 2020, they both simply stated that they each understood all the charges against them but they were not true. The next opportunity was at the point when they were informed that they had a case to answer, on 28^th October 2020. They each said they would testify on oath and call witnesses but they did not notify the court and the prosecution that they would each thereby raise alibis as their defence.

The 2^nd and 3^rd Appellants tried to account for their whereabouts from the 25 26^th to the 29^th January 2017, at pages 36 and 37 of the Record of Appeal. On his part the $2^{nd}$ Appellant stated thus:

> "On the $26/1/2017$ , in the morning I was in the garden from 7:00am to finish the garden. I returned around 12:00 noon. I continued staying home. I did not hear of the allegations. On the 26/1/2017, I did not see A1. I saw him on $27/1/2017$ from my home. He had come to my home. He had a swollen right cheek, he told me that when he was from the Police, four people assaulted him, i.e. Auma Lucy, Ocira & Apici. I have forgotten the last person. I asked him to go to Police but he told me that he had already gone to Police but the Police told him that it is a busy day. On that day I went to Police to inquire if A1 reported a case and they agreed. On 28 1/2017 A1 went back to the Police. I was at home. On the 29/1/2017 the Police came to take the picture of the burnt house.

*I took A1 to Police. Police asked me to go and buy a paper from a stationery* 10 shop. I went and bought the paper. When I brought the paper, I was arrested saying both of us have a case at the Police. The following day we were told of a case of assault. I don't have knowledge of the allegations against me. I was arrested because I am the one who carried Ouma to the Police. The other reason is because of the land dispute between Otto and us. On the 15 26/1/2017 I did not see Ocira or Auma."

The $3^rd$ Appellant, at page 37 of the Record, testified thus:

"On the 26/1/2017 I was at home from morning. I was drunk because I was drinking. I started drinking at 9:00am. I was drinking from home the previous day. I entered the house and slept. I slept at 10:00 am. I suffer *from hang-over.*

On the 26/1/2017 I also took some alcohol. The whole of 26/1/2017 I stayed at home, I did not go anywhere. On the 27/1/2017, Ouma Cota told me his house was brunt. I asked him if he reported to Police and he said he did it. I was arrested from Amuru Court on 19/4/2017 as a witness on a land dispute between Ouma, Angola and Kaci. I was taken to Police and I was told my case is up to Gulu. On the allegation that I assaulted somebody."

Both Appellants did not call any witnesses to support their testimonies about the alibis, as they had intimated that they would do. The trial Judge 30 tested the alibis against the evidence adduced by the prosecution at pages 89 to 91 of the Record where he recounted the testimonies of PW2, PW3 and PW4. The three witnesses where at the scene of crime; it was broad day light and they each narrated what the Appellants did in great detail.

$\mathsf{S}$

The witnesses all knew the Appellants before this for they were their neighbours living in close proximity with them for several years.

Each of the three witnesses called by the prosecution therefore positively identified their assailants and their testimonies were not shaken in cross

5 examination. The trial Judge thus came to the conclusion, at page 93 of the Record, that:

> "l therefore find that the alibi of the accused persons rucs disproued bg the prosecution euidence uhich proued beyond reasonable doubt that theg u.tere at the scene of the crime as participants in the commission of the offence."

We are therefore unable to fault the triai Judge for his finding above for it was consistent with the evidence on the Record. 10

Ground 1 of the appeal therefore must fail

## Other concerns of the court

Before we take leave of Ground 1, we observed that the Appellants were indicted on two counts of aggravated robbery c/t Sections 285 and 286 of the Penal Code Act, one count of attempted murder and one count of causing actual bodily harm, c/t Sections 2O4 and 236 of the PCA, respectively. The Appellants were indicted for the additional counts of attempted murder and causing actual bodily harm as substantive offences, not as alternatives to the two counts of aggravated robbery, which in our opinion was the main offence for which they were indicted. They were then convicted and sentenced in respect of one count of aggravated robbery, as well as for attempted murder and causing actual bodily harm. 15 20

Counsel for the Appellants did not appeal against this but it is our view that we must deal with it since it relates to the right to fair hearing that is

guaranteed by Article 28 of the Constitution. We do so because rule $2(2)$ of the Rules of this Court provides that:

(2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside Judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay. *{Emphasis added}*

We are of the view that the trial and conviction of the Appellants for 10 offences that were constituted by facts that also constituted the offence of aggravated robbery resulted in double jeopardy which is prohibited by Article 28 (9) of the Constitution, which provides as follows:

$\mathsf{S}$

(9) A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings *relating to the conviction or acquittal.*

$20$ Ordinarily, the principle of double jeopardy attaches to cases in which a new trial is commenced on the same facts upon which an accused person was previously convicted (See Opio & 3 Others v. Uganda, Criminal Appeal 291 of 2021; Criminal Appeal 400 of 2019; [2023] UGCA 144). However, the principle may also attach to different offenses constituted by the same facts in the same criminal trial, as happened in this case, and 25 as it was adumbrated by the Supreme Court of the United States in Blockburger v. United States, 284 U. S. 299 (1932).

In that case, Harry Blockburger was convicted for violating certain provisions of the Harrison Anti-Narcotic Act. In order to review the Judgment of the Circuit Court of Appeals [50 F.(2d) 795], affirming the Judgment on conviction, he brought proceedings for certiorari.

The facts set out by the court were that the petitioner was charged with violating provisions of the Harrison Narcotic Act. The indictment contained

5 five counts. The jury returned a verdict against the petitioner upon the second, third, and fifth counts only. In each of these counts he was charged with the sale of morphine hydrochloride to the same purchaser. On the second count he was charged with the sale, on a specified day, of ten grains of the drug not in or from the original stamped package. On the third count he was charged with sale on the following day of eight grains of the drug not in or from the original stamped package; while on the fifth count he was charged with the latter sale, also not having been made in pursuance of a written order of the purchaser as required by the statute. The court sentenced the petitioner to five years' imprisonment and a fine of US \$2,000 upon each count, the terms of imprisonment to run 10 15

consecutively. The Judgment was affirmed on appeal.

On his application for certiorari, the petitioner's contestations were two; that: (i) upon the facts, the two sales charged in the second and third counts as having been made to the same person constituted a single offense; and (ii) that the sale charged in the third count as not having been made from the original stamped package, and the same sale charged in the fifth count not having been made in pursuance of a written order of the purchaser, constituted one offense, for which only a single penalty could have law{ully been imposed.

25 With regard to the second contestation, the court found that Section 1 of the Narcotic Act created the offense of selling any of the forbidden drugs except in or from the original stamped package; and Section 2 created the

offense of selling any of such drugs without a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses were created. But in the circumstances of the case, there was only one sale, and the question was whether, because both Sections were violated by the same act, the accused committed two offenses or only one.

It was explained that the statute was not aimed at sales of the forbidden drugs qua sales, a matter entirely beyond the authority of Congress, but at sales of such drugs in violation of the requirements set forth in Sections 1 and 2. Further, that the purpose of the provisions was to aid the enforcement of the stamp tax imposed by the Act. The court then found that:

"Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each *provision requires proof of an additional fact which the other does not.*"

The 'Blockburger test' was then established that in such situations the court must consider a number of things:

- i) the court must examine the statutory elements/ingredients of each offense; it must examine them without regard to the actual evidence *that the prosecution will introduce at the trial;* - ii) the prosecution must demonstrate that each offense has at least one different element; if one offense entirely subsumes another, the two offenses are deemed the same for purposes of a double jeopardy *{Emphasis added}* analysis.

We are of the view that the decision of the US Supreme Court is not only persuasive but instructive and we adopted it in the resolution of what to us appeared to be not just an anomaly but also an injustice in this case.

$\mathcal{L}^{\mathcal{S}}$

$\mathsf{S}$

The indictment against the Appellants in counts 1 and 2 was brought under Sections 285 and 286 (2) of the Penal Code Act, which provide as follows:

## 285. Definition of robbery.

Ang person uho steals anything and at or immediately before or immediatelg afier the time of stealing it uses or threatens to use actual uiolence to anA person or property in order to obtain or retain the thing stolen or to preuent or ouercome resistance to its being stolen or retained commits the felony termed robbery.

- 286. Punishment for robbery. 10 - (1) Any person uho commits the felony of robbery is liable-

(a) on conuiction by a magistrate's court, to impisonment for ten aears;

(b) on conuiction bg the High Court, to imprisonment for life.

(2) NotutitLtstanding subSection (1) (b), where at the time of or immediatelg before or immediately afier the time of the robbery, an offender is in possession of a deadly ueapon, or causes death or qieuous harm to arut peEon, the offender or any other person jointly concern-ed in committing the robbery shall, on conuiction by the High Court, be liable to suffer death.

{Emphasis Added)

Attempted murder and causing actual bodily harm are provided for by Section 2O4 and 236 of the PCA in the following terms:

204. Attempt to murdet

Any person who-

(a) attempts unlaufully to cause the death of anotlrcr; or

(b) with intent unlanafullg to cause the death of another, does ang act or omits to do ang act, which it is his or her dutg to do, such act or omission being of such a nahtre as to be likelg to endanger human Itfe,

commits a felong and k liable to impisonment for life. 30

236. Assaults causing actual bodilg harm.

Any person who commits an assault occasioning actual bodilg harm commits a misdemeanour and is liable to imprisonment for fiue gears.

The state did not produce a report in respect of the offence for which the Appellants were indicted in count 4, the actual bodily harm occasioned to Lucy Auma. It therefore may have been necessa-ry, on the basis of the oral evidence adduced by the eye witnesses, to press charges under Section 236 of the PCA.

In respect of the charge under count 3, attempted murder, the medical examination report of Ocira Richard, PExhI, at page 102- lO5 of the Record of Appeal, showed that he suffered "grieuous harm" at the hands of his assailalts. The charge may have amounted to an attempt to cause his death on the basis of the fact that one of the assailant cut him on the head with a panga and the doctor's report described him as "a sicklg looking 10

Aoung man uith cut u.tound at the head, about 6cm, uisible mental disorder and conanssion, " among other injuries. However, the harm caused to him was consistent with the requirement in Section 286 that an offender who causes grievous harm in the course of committing robbery with a deadly weapon is to be found guilty of the offence of aggravated robbery. If it also amounts to an attempt to kill the victim, because malice aforethought is inferred pursuant to the definition thereof in Section 191 of the PCA, it is subsumed under the facts that constitute the aggravated robbery. ?o t5

An analogr may also be drawn from the treatment of indictments that contain substantive offences together with counts on conspiracies to commit felonies, proscribed by Section 390 PCA. This court considered the treatment of such indictments by the trial court in Serunkuma Edirisa v Uganda & 5 Others, Criminal Appeal No. 147 of 2OL6, where the Appellants were convicted of the offence of theft. They were

contemporaneously convicted with the conspiracy to commit a felony contrary to Section 390 of the Penal Code Act. Finding for the Appellants, this court (consisting of Musoke, Musota and Tuhaise, JJA as they then were) held that:

$\cdot\,,$

$\mathsf{S}$ "It would be unnecessary to punish an accused person for an agreement to carry out an offence, as well as the offence itself, especially as the agreement constitutes the mens rea for commission of the offence in question. We are further persuaded by the observations of the learned authors of (the) Halsbury's Laws of England (supra), that the conspirators' agreement, which is the basis for the offence of conspiracy is terminated by 10 completion of its performance that is, when the offence itself is committed. Accordingly, we agree with the submissions of the Appellants' counsel on this point, and find that the learned trial Judge should not have convicted the Appellants of the offence of conspiracy to commit the felony of theft and yet he had already convicted them for the felony of theft itself. We therefore 15 quash the convictions of the 1^st, $2^{nd}$ , $3^{rd}$ , $4^{th}$ and $6^{th}$ Appellants for conspiracy to commit the felony of theft."

That is not to say that the filing of indictments with charges for attempts and conspiracies is precluded. The courts have over time established principles upon which such indictments and charges may be brought and 20 treated by the trial court. In Patrick Sentongo v. Uganda, Court of Appeal Criminal Appeal No 37 of 2017; [2021] UGCA 113, this court (consisting of Kakuru, Mutangula Kibeedi & Mulyagonja, JJA) extensively dealt with the subject.

We are therefore of the opinion that the prosecution ought to have framed 25 the charge for attempted murder in the alternative and not as a substantive charge to be considered on the same evidence after the possible conviction for aggravated robbery. Proceeding with both offences on the same facts was not only unfair to the Appellant but also oppressive and an embarrassment in their defence. 30

The trial Judge therefore erred in law when he convicted and sentenced the Appellants with attempted murder, after he did so on exactly the same facts for the offence of aggravated robbery. We therefore hereby quash the conviction and set aside the sentences imposed on the Appellants for the offence of attempted murder.

## Ground 3

The Appellants' grievance in this ground was that the trial Judge erred when he imposed a harsh and excessive sentences upon them thereby occasioning a miscarriage of justice.

## 10 Submisslons of counsel

Counsel for the Appellants stated that the 1"t Appellant was sentenced to 24 years, 11 months and 28 days in respect of aggravated robbery while the 2",i Appeilalt was sentenced to twenty-four years, 11 months and ¹¹ days for the same offence. He referred to Mugasha Joseph v. Uganda

15 SCCA No. lO of2O1O and Bikanga Samuel v. Uganda CACA No. 38 of 2OOO on the appellate court's power to vary the sentence imposed by the trial court.

20 It was also his submission that the tria-l Judge failed to take into account material factors which were that the 2"d Appellant was 5O years old; the value of the property stolen was only UGX 18,000/=; the injury sustained by the complainant, Ocira, a-rose out of a fight. He further submitted that a custodial sentence is intended to help offenders to reform. Therefore, a sentence of 30 years for robbery where the property stolen was valued at only UGX 18,OOO/= was excessive in the circumstances.

Counsel maintained that the mitigating factors outweighed the aggravating factors and so the sentences imposed were harsh and excessive in the circumstances. Relying on the decision in Kiiza AIex v. Uganda, CACA lto. 177 of 2013, he prayed that the sentences of 30 years' imprisonment be quashed and substituted with that of 8 years less the period spent on remand before conviction. He also prayed that Okoko Denis be acquitted of count 3 for which he was not charged and that the sentence against him be set aside altogether, but we already quashed that conviction.

In reply, Ms. Angutoko for the respondent stated that the sentences were neither harsh nor excessive. Relying on Kiwalabye Bernard v Uganda, SCCA No. 143 of 2OO1, she submitted that there is no justification for this court to interfere with the sentence of the trial Judge because he considered all the relevant factors ald deducted the period spent on remand. Further, that the trial Judge would have imposed a higher sentence if the aggravating factors had outweighed the mitigating factors. 10 15

Counsel went on to state that the Appellants were convicted of aggravated robbery which is a very serious offence that attracts a minimum sentence of 35 years according to the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2O 13 and a maximum sentence of death. Counsel referred court to Guloba Rogers v. Uganda, Crimlnal Appeal No. 57 of 2013 where the Appellant was sentenced to 35 years' imprisonment for aggravated robbery, Abasa Johnson & Anor v. Uganda, Criminal Appeal No. 33 of 201O, where the Appellants were sentenced to 33 years' imprisonment for the offence of murder, and Ojongole Peter v. Uganda, Criminal Appeal No. 34 of 2OL7, where this court confirmed a sentence of33 years for the offence of aggravated robbery. She prayed that this court maintains the sentences imposed by the lower court. 20 25 In rejoinder, counsel for the Appellant summarised the submissions that he filed earlier in the appeal.

## Resolution of Ground 3

5 The principle that this court is not to interfere with a sentence imposed by the trial court exercising its discretion unless the sentence is illegal or this court finds that the trial Judge did not consider an important matter or circumstance which ought to have been considered while passing sentence is well settled. The court may also interfere with the sentence if it is shown that it was manifestly excessive or so low as to amount to arr injustice.

## [See Livingstone Kakooza v. Uganda, SCCA No. 17 of 1993]. 10

In this appeal, counsel for the Appellants raised four main issues to challenge the validity of the sentences imposed upon them, as follows:

- i) Okoko Denis, the 2"d Appellant was not indicted for the offence in count 3, attempted murder; - ii) the trial Judge did not deduct the period spent on remand before conviction from the sentence of 15 years imposed in respect of count 3; - iii) the trial Judge did not take into account mitigating factors such as the age of Oneka David who was 50 years old, and - iv) he did not take into account the fact that the value of the property that was stolen was only UGX 18,000/=. - We therefore addressed the 3'a and 4tr, issues since we already set aside the conviction and sentence in respect of the offence of attempted murder.

## Issues 3 and 4

With regard to the grievance that the trial Judge did not take into account the mitigating factors such as the age of Oneka David who was 50 years old, and that the property stolen was worth only shs 18,OOO, we observed

that the trial Judge in his ruling, at page 45 of the Record of Appeal, referred to the submissions of counsel where he informed court that A3, Oneka David was 50 years old. He referred to other aspects of the submissions and then came to the conclusion, at page 46 of the Record,

$\cdot,$

that: $\mathsf{S}$

"I have carefully considered the aggravating factors as enumerated by the learned Chief State Attorney and the mitigating factors as enumerated by the Counsel for the Convicts. I find the mitigating factors outraged (sic) the aggravating factors. The accused persons were first offenders with the possibility of reforming and the property is only $18,000/=$ .

(I) Consider the custodial sentence of 30 years appropriate on Count 1, on Count 3 I consider a custodial sentence of 15 years and on count 4 I consider a custodial sentence of 2 years' imprisonment appropriate.

I have considered the fact that A1 has been on remand for a period of 5 years and 4 days.

A2 has been on remand for a period of 5 years and 4 days and A3 has been on remand for a period of 5 years and 20 days. I hereby deduct the above *remand period(s) from the sentence.*

A1 and A2 are each hereby sentenced to a custodial sentence of Twenty*four (24) years, eleven (11) months and twenty-eight (28) days on count 1.* 20 A3 is sentenced to a custodial sentence of twenty-four (24) years, eleven (11) months and eleven (11) days on count 1.

> On Count 4 all the convicts have already served their sentence. The sentence on Count 1 and 3 shall run concurrently.

On the prayer for compensation, I shall order that the convict jointly and 25 severally pay Ocira Richard 18,000/= which is the value of his hoe and panga which the convicts stole.

> The same will be paid six (6) weeks after completing their sentence. Any other claim for expenses and general damages can be by way of filing a civil suit."

Counsel for the Appellants prayed that the sentences of the $2^nd$ and $3^rd$ Appellants for 30 years for the offence of aggravated robbery in count 1 be set aside and substituted with one of 8 years less the period of 5 years spent on remand. However, it is clear that the trial Judge did not sentence the Appellants to a period of 30 years' imprisonment. Rather, he sentenced each of them to imprisonment for 24 years and 11 months and several days.

Counsel for the Appellant did not specify failure by the trial Judge to follow $\mathsf{S}$ any legal principles while sentencing the Appellants. His only complaint was that the sentence was harsh and excessive and it occasioned a miscarriage of justice to the Appellants.

ln Kiwalabye Bernard v. Uganda, Supreme Court Criminal Appeal No.

**143 of2001**, the Court spelt out the principles upon which an appellate 10 court may interfere with a sentence imposed by the trial court as follows:

"The appellate Court is not to interfere with the sentence imposed by the trial Court which has exercised its discretion on sentence, unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice, or where the trial Court ignores to consider an important matter or circumstances which ought to be considered while passing the sentence, or *where the sentence imposed is wrong in principle.*" *{Emphasis added}*

The Supreme Court in Aharikundira Yustina v. Uganda [2018] UGSC 49

had occasion to consider what is meant by the expression "manifestly" 20 excessive" in circumstances were a sentence of death for the offence of murder was challenged and held thus:

"There is a high threshold to be met for an appellate court to intervene with" the sentence handed down by a trial Judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation."

*Emphasis added*

The court further observed that: 30

$\cdot$

"lt is the duty of this court uhile dealing utith appeals regarding sentencing to ensure consistencg u.tith coses that haue similar facts. Consistency is ^a uital principle of a sentencing regime. It is deeplg rooted in the ntle of law ond requires that laus be applied uith equalitg and uithout unjustifiable differentiation."

In this appeal, counsel for the Appellant cited one case, Kiiza Alex v Uganda (supra), in which a sentence of 60 years' imprisonment for murder was substituted with a sentence of 25 years' imprisonment. The circumstances under which it was substituted were not given but it was clearly inapplicable to the circumstances of this case. On the other hand, counsel for the respondent cited sentences imposed by this court for aggravated robbery of 33 and 35 years' imprisonment. It thus became necessarJi for us to review other sentences imposed by the courts for similar offences before we come to a conclusion about this ground.

In Rutabingwa James v. Uganda, Court of Appeal Criminal Appeal No. 57 of 2011; l20lal UGCA 79, where Judgment was delivered on l9th September 2014, this court confirmed a sentence of 18 years' imprisonment for the offence of aggravated robbery. 15

In Ssenkungu Akim v. Uganda, Court of Appeal Criminal Appeal No.

264 of 2Ol5:.12022] UGCA 192, where the Judgment was delivered on 19th July 2022, this court upheld the sentence of 27 years' imprisonment for the offence of aggravated robbery. The court emphasised that it is the trial Judge who hears the case, with the primary role of determining the appropriate sentence. That the trial Judge in that case imposed a sentence 20

of 27 years' imprisonment which was well within the sentencing range for aggravated robbery under the Sentencing Guidelines for the Courts of Judicature. The court found no reason to fault the trial Judge and so upheld the sentence. 25

In Lule Akim v. Uganda, CriminalAppeal No. 274 of 2Ol5;l2022l UGCA 28, in which the sentence was handed down on 1ltt' February 2022, th,is court upheld a sentence of 2O years' imprisonment for aggravated robbery that had been imposed by the trial court. The court found that it was neither harsh nor excessive.

And in Ntambi Robert v Uganda, Court of Appeal Criminal Appeal No 334 of 2019;12022] UGCA 264 where Judgment was handed down on 25tt October 2022, the trial court convicted the Appellant of the offences of murder and aggravated robbery on his own plea of guilty. The court sentenced him to 2O years and 18 years' imprisonment for murder and aggravated robbery, respectively, to run concurrently. On appeal to this court, it was observed that considering the mitigating, aggravating factors and the precedents set by this court and the Supreme Court, the sentences were neither manifestly harsh nor excessive. Further that according to the sentencing range laid down in the Third Schedule of the Sentencing Guidelines, sentences for both offences range from 35 years' imprisonment to the death sentence, after considering the mitigating and aggravating factors. The court thus found no reason to interfere with the sentences imposed by the trial court and they were upheld.

In Avuni Tipas Mike v. Uganda, Court of Appeal Criminal Appeal No. 4O3 of 2016;12023] UGCA 241, handed down on 16th June 2023, the Appellant appealed against the sentence of 35 years' imprisonment imposed by the trial court for aggravated robbery. The Appellant and another broke into the victim's house with a gun, subdued him and robbed him of a total of UGX 12 million. No injury was caused to the victim. 20 25

On appeal, this court was of the view that the sentence was excessive in the circumstances of the case. The sentence was set aside and the

Appellant resentenced to l8 years' imprisonment, upon which the period spent on remand was deducted to arrive at a sentence of 12 years and ¹¹ months' imprisonment. The order to pay back the sum of UGX 11,500,000/= to the victim was maintained.

- 5 From the review of sentences above, we find that the sentence of 35 years' imprisonment was harsh and excessive in the circumstances of this case and we hereby set it aside. Pursuant to Section 11 of the Judicature Act, we shall now impose an appropriate sentence in the circumstances of the C SC, - We have considered the aggravating and mitigating factors in this case and the sentences that were imposed in similar cases. The main aggravating factor in this case is not that the Appellants stole a hoe and a panga from their victims; rather, they cut one of them with a panga on the head and occasioned grievous harm. 10 - The main factors that aggravate a sentence for robbery are stated in paragraph 31 of the Sentencing Guidelines as: the degree of injury or harm; the part of the victim's body where harm or injury was occasioned; whether there was repeated injury or harm to the victim; and use and nature of the weapon used. In this case, Ocira was cut on the head with a pangq he narrowly survived death. That items stolen being of the value of only UGX 18,OOO/= does not mitigate the sentence to be imposed. In fact, it puts the Appellants' offence in a perspective that is worse than if they had caused such injury to steal items of higher value. It reflects the fact that they had no respect for human life at all. 15 20 - We are therefore of the view that a sentence of 2O years' imprisonment would be appropriate in the circumstances of this case. From that, we 25

deduct the periods spent on remand of 5 years and 4 days for the second Appellant and 5 years and 20 days for the 3.d Appellant. The 2"d Appellant shall therefore serve a sentence of imprisonment of 14 years 11 months and 26 days, while the 3.a Appellant shall serve a sentence of 14 years 1 I months and 4 days. The order for compensation imposed by the trial Judge is maintained. The sentences shall run from the 22"d J:uly 2022, the date on which they were first sentenced.

We so order.

Dated this o\il- day of 2024. ,\^

Geoffrey Kiryabwire JUSTICE OF APPEAL

Irene Mulyago

JUSTICE OF APPEAL

Eva K JUSTI ta ²⁵ EOF APPEAL

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