[2022] UGHCCRD 32

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CRIMINAL APPEAL NO.0009 OF 2018**

(Arising from Crim. Case No.117 of 2018)

## **1. RUGAJJU GEORGE**

**2. ASIIMWE STELLA ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

### **VERSUS**

**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **JUDGMENT**

## *Before: Hon. Justice Byaruhanga Jesse Rugyema*

[1] This is an appeal from the judgment and conviction orders of the Magistrate Grade 1 Masindi Chief Magistrate's court delivered on the 23rd Aug.2018.

## **Brief facts of the Appeal**

- [2] The Accused persons; **Rugajju George** (A1) and **Asiimwe Stella** (A2) were charged with the offence of Stealing Cattle **C/ss 261 & 264 PCA**. It was alleged that during the month of February, 2018 at **Banuti Ranches** in the Masindi District, the 2 accused persons and others still at large stole 52 heads of cattle valued at approximately Ugx 46,800,000/= the property of **Rwamushaija Stephen**. Both the accused pleaded not guilty to the offence - [3] It was the prosecution case that whereas **A1** was the Assistant Manager at **Banuti Ranches** responsible for the herdsmen and Safety of cattle at the Ranch, **A2** was a Secretary at the Ranch responsible for recording and keeping the record of the stock i.e count the animals that go for deeping; record calves that born, animals that are sold out and or die and those that are received at the farm.

- [4] During the month of December and March 2018, the manager of the farm, **Stephen Rwamushaija** (PW1) fell sick and was away from the Ranch for hospitalization. In his absence, **A1**, the Assistant Manager was in charge of the Ranch. During the absence of the manager **(PW1**) when **A1** was in charge, 52 heads of animals went missing. Upon the return of the manager **(PW1),** the 2 accused persons failed to account for the 52 missing heads of animals. The matter was reported to police upon which the 2 accused persons were arrested and charged with the instant offence at police. - [5] On their part, the 2 accused persons denied the commission of the offence. **A1** attributed the allegations to the fact that the manager **(PW1**) had not paid him his salary. **A1** implied that the manager therefore wanted to justify his failure to pay **A1** his dues. **A2** put out flat denial. - [6] On her part, the trial Magistrate found that there was no direct evidence against the accused but only circumstantial evidence. She considered the fact that **A1** was in personal custody of the animals which he had shifted from one kraal to that one which was near his house and because at the time of the incident, he was the manager of the Ranch, she found **A1** guilty of the offence charged while the case against **A2** was not proved beyond reasonable doubt and she was accordingly acquitted of the charge. - [7] **A1** was aggrieved and dissatisfied with the whole judgment and conviction orders of the trial Magistrate and filed the present appeal on the following grounds: - *1. The learned trial Magistrate erred in fact and law when she failed to properly evaluate the evidence on record and arrived at a wrong decision thereby occasioning a miscarriage of justice on the person of the Appellant.* - *2. The learned trial Magistrate erred in law and in fact when he held that the prosecution had proved its case beyond reasonable doubt thereby occasioning a miscarriage of justice on the person of the Appellant.* - *3. The learned trial Magistrate erred in law and fact when he imposed an illegal, manifestly harsh and excessive sentence thereby occasioning a miscarriage of justice on the person of the Appellant.*

- [8] On the 28/4/22 when the appeal came up for hearing, whereas the Appellant was represented by counsel **Zemei Susan** of **M/s Zemei, Aber Law Chambers, Masindi,** no State Attorney appeared for the Respondent. This court nevertheless set timelines for the Appellant and the Respondent to file their respective submissions and the time lines to be served upon the Respondent. The Respondent was duly served with copies of the timelines order, Appellant's written submissions and proceedings on the 1/6/2022 as per the affidavit of service of **Erasmus Wandera** on record dated 2/6/22 but no Respondent State Attorney complied with the timelines to file the submissions. - [9] In the above circumstances, this court is entitled to proceed with the disposal of this appeal without the input of the Respondent.

#### **Duty of the 1st Appellate court**

[10] The Supreme Court in the case of **Kifamunte Henry Vs Uganda S. C. C. A No.10 of 1997** held that it is the duty of the first Appellate court to rehear the case on appeal by reconsidering all the materials which were before the trial court and make its own mind and failure to do so amounts to an error of law.

The instant appeal from the Magistrate Grade 1 is a first appeal and therefore, I shall proceed being guided by the above principles.

### **Resolution of the grounds of Appeal**

[11] The 1st and 2nd grounds of appeal appear to rotate around how the trial Magistrate evaluated the evidence before her and as a result, I shall tackle them together while the 3rd ground shall be tackled separately.

#### **Grounds 1 and 2: Evaluation of evidence**

[12] Counsel for the Appellant submitted that the trial Magistrate in the instant case relied on the circumstantial evidence to convict the Appellant. That in **Xavier Kayemba Vs Uganda, H. C. Crim. Appeal No.39 of 1983,** it was held that before a conviction is entered on a case wholly dependent on circumstantial evidence, the court should first find that the inculpatory facts are incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis than that of guilt. It is also necessary before drawing the inference of the accused's guilt from the circumstantial evidence to be sure that there are no existing circumstances which would weaken or destroy the inference.

[13] Counsel argued that it is a principle of law that an accused person should be convicted on the strength of the case as proved by prosecution but not on weakness of his defence. That in this case, the prosecution failed to adduce any evidence to connect the accused to the taking of the missing cattle as none of the prosecution witnesses testified as having seen the accused stealing or taking the animals from the Ranch.

#### **Burden and standard of proof**

- [14] It is a requirement by the law that the prosecution must prove its case beyond reasonable doubt because the accused has no duty to prove his innocence; **Uganda Vs Joseph Lote [1978] HCB 269.** It is also our principle of the law that an accused person should be convicted on the strength of the case as proved by the prosecution but not on weakness of his defence; **Israil Epuku S/o Achietu Vs R [1934]1EACA 66 at p.167**. - [15] In the instant case, as alluded to by the trial Magistrate in her judgment, the prosecution adduced the following circumstantial evidence to secure a conviction against the Accused/Appellant; - a) Evidence of **Mukahaburwa Robert** (PW2) and **Nuwagaba Moses** (PW3) which is to the effect that the Appellant relocated the Kraal from its ordinary place to near his home where the animals with disabilities (Abalema) were located. - b) Evidence of the manager **Steven Rwamushaija** (PW1) that the incident regarding the missing of the animals happened when the Appellant was the manager i.e during the absence of **PW1**. - c) Evidence of **Stella Asiimwe** (DW2) which is to the effect that whenever **DW2** would count and discover animals missing at deeping, the Appellant would underrate the claim and pronounce that the animals would be found and be brought for deeping. - [16] It is upon the foregoing pieces of circumstantial evidence that the trial Magistrate found that the prosecution had proved its case beyond reasonable doubt against A1 and convicted him accordingly. The trial Magistrate however overlooked the fact that the Ranch had many herdsmen who included **Mafulu, Mugabi** and **Byayesu** (See evidence of **PW2** and **PW3**) who could have been behind the missing 52 heads of cattle. The above inculpatory facts clearly show that there are co-

existing circumstances which are compatible with the innocence of the Appellant and therefore weaken the inference of the Appellant's guilt.

[17] In the premises, I find grounds **1** and **2** having merit.

#### **Ground 3: The learned trial Magistrate erred in law and in fact when she imposed an illegal, manifestly harsh and excessive sentence thereby occasioning a miscarriage of justice on the person of the Appellant.**

- [19] According to **S.264 PCA**, the offence of stealing cattle carries a maximum sentence of 7 years for a first offender. In the instant case, the Appellant was sentenced to 8 years imprisonment yet as was clearly submitted by the prosecution during the sentencing proceedings, the Appellant was found to have had no previous criminal record. In the premises, I find that the sentence passed against the Appellant was illegal, harsh and manifestly excessive and as a result, occasioned an injustice on the person of the Appellant. - [20] This ground of Appeal has merit. It is accordingly allowed. The entire appeal is generally found to be having merit. It is allowed and the conviction and orders of the trial Magistrate are quashed/set aside. The Appellant is acquitted and set free unless he is being lawfully held on other charges.

Dated at Masindi this **14th** day of **June, 2022**.

**............................................ Byaruhanga Jesse Rugyema JUDGE.**