[2025] UGSC 22

#### ⁵ THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT I(AMPALA

ICORAM: TIBATEMWA. BKIRIKIIBINZA; TUHAISE; CHIBITA; MUSOTA; MADRAMA; ,J"ISC]

#### CRTMTNAL APPEAL NO.161OF 2023

#### BETWEEN

10 SSENKUNGU AKIM APPELLANT

#### AND

UGANDA. RESPONDENT

lAn appeal from the Judgment of the Court of Appeal before Hon. Justices: Buteera, DCI; Musoke and Baishaki; JJA dated, 19h Julg, 2022 in Ciminal Appeal No. O264 of 2015.1

#### ¹⁵ JUDGMENT OF THE COURT

This is a second appeal lodged by the Appellant who was aggrieved with the decision of the Court of Appeal. The Memorandum of Appeal had only two grounds as follows:

- 1. The learned Justices of the Court of Appeal erred in law when they upheld coaviction of the Appellant without properly evaluating the evidence relating to identification and the doctrlne of recent possession. - 2. The learned Justices of the Court of Appeal erred in law when they upheld the sentence of the Appellant to wit 27 years' imprisonment without consideration of the mitigating factors. I

\,

#### ⁵ Background:

The Appellant was indicted on charges of aggravated robbery, contrary to Sections 285 and 286(21 of the Pena-l Code Act. The prosecution's case was that on 6 May 2012, at Bwebajja, Ssisa Sub-County in Wakiso District, the Appellant robbed Kalule Abdul of his Beretta pistol, No. D49958Z,loaded with 14 rounds of ammunition; one Tecno Mobile Phone T390, with numbers 0772394457, 0701394457, and 07llol4l98; two ladies' handbags; and 10O,O00 shillings. At or immediately after the robbery, a deadly weapon, namely a gun, was used on the victim.

¹⁵ On 9 August 2012, about four months after the incident, police oflicers intercepted the Appellant on the Mbarara-Masaka Road while he was traveling as a passenger on a motorcycle ridden by another man. The police officers conducted a search and recovered a pistol with eight rounds of ammunition. The police officers discovered that the pistol was the sarne one stolen from the victim. The Appellant and the other man were arrested, charged, and tried for aggravated robbery. At trial, the Appellant denied participating in robbing the victim; he stated that he was only carrying the pistol to its owner in Mbarara. However, the trial judge rejected the Appellant's defense and found him guilty of aggravated robbery under the doctrine of recent possession of stolen property, and sentenced him to 27 years' imprisonment. 20 25

Dissatished with the trial court's decision, the Appellant appealed to the Court of Appeal against the sentence, which upheld the sentence.

### ⁵ Representation

At the hearing of the Appellant while Ms. Respondent. appeal, Mr. Mooli Robert represented Ahimbisibwe Winfred, represented the the

#### Submissions:

### ¹⁰ Appellant's submissions

### Ground ¹

Counsel for the Appellant contends that the case was based on identification, wherein the offence was committed at night and both the accused and victim were strangers. The principles governing identification, as laid down in Abdullah Nabulere and 2 Others v. Uganda SCCA No. 9/ L978, are that where a case substantially depends on the correctness of identification of the accused, which the defense disputes, the judge should warn himself before convicting the accused.

²⁰ Counsel argues that PW2 and PW3 both stated during the trial that they could not recall the assailants' faces because it was a long time since the incident, it was late at night, and one of them had his face covered during the robbery.

Counsel for the Appellant contends that the Court of Appeal relied on the doctrine of recent possession without properly evaluating the evidence on record to uphold the trial court's decision. Counsel for the Appellant submitted that, in the Appellant's defense, a man brought a bag to his home and asked him to keep it, saying it 25

contained clothes. The Appellant did not check its contents and he was surprised upon arrest to find that the bag contained a pistol.

# Ground 2

Counsel for the Appellant argued that a sentence of 27 years' imprisonment is harsh and excessive, given that the appellate court did not consider the mitigating factors. The court of appeal should have addressed the mitigating factors and imposed a reduced sentence.

### Respondent's submissions

Preliminary point of Law

15 Counsel for the Respondent raised a preliminary point of law that the issue of evaluating the evidence relating to identification and the doctrine of recent possession was never raised before nor resolved by the Court of Appeal.

Counsel contends that this court cannot address an issue not ruled on by the appellate court.

## Ground ¹

Counsel for the Respondent argued that the trial judge correctly disregarded the identification evidence and relied on circumstantial evidence to convict the Appellant. The trial judge invoked the doctrine of recent possession to support the circumstantia-l evidence.

Counsel for the Respondent contends that in considering whether the possession was recent, the nature of the object, its rarity, how readily

it could and likely would pass to another, and the ease of its identifrcation were considered to establish the Appellant's culpability.

#### Ground 2

Counsel for the Respondent submitted that the appellate court did consider the mitigating and aggravating factors in upholding the sentence imposed by the tria-l court.

### Court's Consideration

The preliminary point of law by counsel for the Respondent on the first ground, was essentially that the Court of Appeal entertained an appeal by the Appellant based solely on sentence. The Appellant never raised the issue of his conviction before the appellate Court. Therefore, the Justices of the Court of appeal should not be criticized for what they had no opportunity to address.

This Court had occasion to consider the issue of a ground of appeal being raised before this Court when the issue had not been raised before the Court of Appeal in TWinomugisha Alex alias TWine Patrick Kwezi & John Sanyu Katuramu v. Uganda, Criminal Appeal No. 35 of 2OO2. This Court held that a ground which was not raised before the Court of Appeal and thus not considered by the court is not maintainable before the Supreme Court. The Court specifically held that: "... lt is erroneous to citicize the learned Justices of Appeal as hauing erred when the complaint was not raised before them for consideration"

⁵ We have reviewed the record of appeal, and note that Counsel for the Appellant sought leave of Court to appeal only the sentence, which the court granted. Therefore, we cannot fault the Court of Appeal on a matter never raised before it. Consequently, we uphold the preliminary objection raised by counsel for the Respondent and dismiss the first ground of appeal.

## Ground 2

The power of this court to hear and determine criminal appeals against sentence is stipulated under Section 5 (3) of the Judicature Actt. This Court has repeatedly emphasized that under the said Section, the Appellant has a right of appeal only against the legality

of sentence and not its severity.

Counsel for the Appellant argued that the Court of Appeal did not consider the mitigating factors presented in the tria-l court while passing sentence.

- Counsel for the Respondent on the other hand contended that the mitigating factors were considered by both lower courts. Indeed, as argued by the Respondent, it is on record that both the High Court and the Court of Appeal considered the mitigating factors. This is what the Court of Appeal stated inter alia: "... the learned tial Judge 20 - 25

considered all the mitigating and aggrauating factors, ...." The submission of Counsel for the Appellant is therefore without merit.

¹cap 16 (7th Revised Edition laws of Uganda, 2023)

Be that as it may, consideration of mitigating factors by a court in the process of arriving at a sentence has the potential to lead to a reduced sentence. One can therefore conclude that in essence, this appeal is an appeal against severity of sentence and is thus prohibited by Section 5(3) of the Judicature Act. On this ground alone, this appeal is bad in law and would be dismissed.

In conclusion, tJre sentence of 27 years' imprisonment is upheld.

### Decision and Orders

Since both grounds appeal have failed, this appeal lacks merit and is dismissed.

¹⁵ The decision and sentence of the Court of Appeal is upheld.

Dated at Kampala this ff, day of 2025. rg

20 v!o.ca,,Ie-.,,n HON. JUSTICE PROF. TIBATEMWA-EKIRIKUBINZA WSTICE OF THE SUPREME COURT.

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C-\ HON. WSTICE PERCY TUHAISE JTISTICE OF THE SUPREME COURT.

HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT.

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HON. JUSTICE SPTEPHEN MUSOTA JUSTICE OF THE SUPREME COURT.

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HON. JUSTICE CHRISTOPHER MADRAMA JUSTICE OF THE SUPREME COURT.