[2024] UGSC 48

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA CRIMINAL APPEAL No. 34 of 2018

[CORAM: Tuhaise, Chibita, Musota, Madrama, Bamugemereire, JJSC]

# TWONGO SAULO a.k.a MASABA :::::::::::::::::: APPELLANT VERSUS

**::::::::::::::::::::::::::::::::::::: UGANDA :::::::::::**

[An appeal arising from the decision of the Court of Appeal before] Kasule JA, Cheborion JA, Obura JA in Criminal Appeal No. 849 of 2014 dated 27^th March 2018 at Jinja]

#### JUDGMENT OF THE COURT

#### Introduction

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This is a second appeal from the decision of the Court of Appeal which upheld the conviction and sentence of the appellant imposed by the High Court of Uganda at Mukono.

## Background

The appellant was indicted for the offence of Murder contrary to sections 188 and 189 of the Penal Code Act. It was alleged that on the 3^rd day of June 2009 at Bajjo village, Seeta Goma Sub-County in Mukono district, the appellant murdered Wamala Ibrahim. The appellant was tried, convicted, and sentenced to 26 years' imprisonment.

Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal against both conviction and sentence arguing that the trial Judge erred when he convicted

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the appellant when all the ingredients of the offence of murder had not been proved beyond reasonable doubt and that the sentence of 26 years was excessive.

The Court of Appeal dismissed the appeal against conviction and held that the trial court properly analyzed the facts, applied the law and arrived at a proper conclusion. The Court further held that the sentence of 26 years' imprisonment was appropriate in the circumstances ofthe case.

Dissatisfied with the decision of the Court of Appeal, the appellant appealed to this Court on the following ground: -

> That the Lsarmed Justices of Appeal entd in l,aw when they confirmed the appellant's conviction when all the ingredients of the offene of murder werre not proved.

The appellant prayed that this court allows the appeal, quash the conviction and set aside the sentence.

### Representation

At the hearing of this appeal, Mr. Badru Mulindwa Principal Assistant DPP appeared for the respondent while Mr. Andrew Ssebuggwawo appeared for the appellant on State Brief. The appellant was present via video link from Luzira Upper prison. Both counsel proceeded by way of written submissions, which this Court adopted in considering the appeal.

## SubmiEeions for the Appellant

Counsel for the appellant invited this court to take with caution the evidence of the single'identifying witness, PWl I(ayaga Proery. He contended that although Prossy's evidence was that she witnessed the appellant attack her former boyfriend (now deceased) on the head there was no station diary entry or police report ofan incident at the Seeta Police Post. Counsel further contested the approach taken by the prosecution of identifying the assailant in the dock, two years later.

In the same measure counsel for the appellant implored this court to regard with interest the evidence of PW2 No. 36324 D/CPU Barasa Jamee who stated that he did not find a file or any report regarding this murder case at the Police Counter in 2010 when he was transferred to the Criminal Investigation Department (CID) at Seeta Police Post.

Counsel submitted that there was no contemporaneous investigation of the assault that resulted into a death and therefore the evidence of PWB Sgt Oketcho who investigated the murder case two years later in 2011 based his information on hearsay. He argued that the sketch plan drawn by PW3 two years later was hearsay evidence and had no evidential value.

Regarding the Death Certificate relied on by police and tendered into evidence, counsel contended that it was not tendered by a medical person known to the doctor who had

authored and signed the report and therefore the process of accepting the report did not comply with eestion 30 of ths Evidence Agt. Counsel invited this court to find that although the cause ofdeath was suspicious, it did not prove the offence of murder beyond reasonable doubt.

Counsel also urged this court to find that the element of malice aforethought was not proved beyond reasonable doubt. He based his argument on sectiou 191 of the Penal Code Agt which stipulates that malice aforethought is deemed to be established once there is proof of an intention to cause the death of any person, whether such person is the person actually killed or not. It was counsel's submission that there was no conscious intent on the part of the assailant to cause death or grievous bodily harm on any person. He maintained that it was not the appellant who accosted and killed the deceased.

He relied on PW1's evidence to advance the theory that the appellant did not attack the deceased but only wished to get even with PWl for double-crossing him. In his view this proved that the hitting the deceased was random and sudden, arising from the deceased's meddling in the relationship the appellant had with PW1. Counsel contended that there was no sufficient time for the appellant to form an intention to kill the deceased but rather it was a spontaneous reaction arising from suddenly seeing PW1 with the deceased. He submitted

that there is evidence that the threei the deceased, PWl and the appellant had been drinking at the bar. He cast doubt on the assertion of PWl that the trio were not drunk.

Counsel relied on I(azibwe I(assim v Uganda SCCA No. 01 of 2003 to make the point that in the present case, police left glaring gaps which make evidence on cause of death of the deceased uncertain.

Counsel invited this court to believe the defence of the appellant when he denied participation and testified that before his arrest, was a builder and was residing at his uncle's home in Ntawo and had never gone to Bajjo.

In conclusion counsel for the appellant invited this court to find that overall, the evidence relied on to convict was weak and unreliable. He contended that respondent/prosecution had failed to adduce sufficient evidence upon which a court could safely convict the appellant. He urged this court to quash the conviction and sentence set aside.

### Submieeions for the Reepondent

At the onset counsel for the respondent objected to the ground of appeal. He submitted that it is too generic and offends nrle 62 @) of the Judicature (Supreme Court Bulee) Directions. And that rule 62(2) anticipates that the memorandum of

appeal shalli concisely set forth the grounds of appeali under distinct heads and numbered consecutively without necessarily becoming argumentative or simply a narration of the decision appealed against.

Based on rule 62Q) of the Rules of this Court counsel invited this court to flrnd the gr:ound of appeal offensive, incompetent and strike it out.

Without prejudice to the above contention, counsel for the respondent submitted that at the Court ofAppeal and at trial, the appellant abandoned most ofthe ingredients ofthe offence of murder except the ground of participation. He submitted that at trial counsel for the appellant withdrew the objection that death did not occur and invited the court to find that death occurred.

He submitted that the counsel for the appellant could now not bring up the issue ofproofofdeath on second appeal, when he abandoned it at the trial court. He relied on Rwabugande Moees v Uganda SCCA No. 26 of 2014 where this Court observed that the general rule is that an appellate court will not consider an argument raised for the frrst time on appeal except if it is addressing an illegality. Counsel submitted that the Justices of Appeal made an evaluation on the ingredient and concluded that death was proved. He invited this court to disregard this ground.

Regarding the question whether malice aforethought had been proved beyond reasonable doubt, counsel for the respondent submitted that this ingredient was equally abandoned at trial and at the Court of Appeal but that notwithstanding, he submitted that the Court of Appeal exhaustively evaluated the evidence regarding malice aforethought, and found that by inflicting injuries on the deceased's head and neck three times using a stick and coupled with the accused running away, malice aforethought had been proved in accordance with eection 91 of the Pennl Cods Ast. He noted that the Justices of Appeal found that the medical proof on the death certificate that was admitted in evidence was consistent with the evidence of PWl that the deceased died of brain injuries and head trauma. Counsel appealed to this court to disregard the arguments raised by counsel for the appellant.

Regarding participation, counsel submitted that the Justices ofAppeal thoroughly evaluated the evidence ofthe appellant's participation and found that he was successfully placed at the scene of crime by PWl. He submitted that the Justices evaluated PWl's evidence and found that the appellant had been at the scene of crime before the incident and that after the incident, he escaped from the village until 2011 when he was subsequently arrested.

It was counsel's submission that the Justices of Appeal properly evaluated the evidence regarding identification by a

single identifying witness and found that the circumstances for identification were favourable and good.

Counsel concluded that the appellant's appeal is without merit as the Justices of Appeal were alive to their duty as a first appellate Court and indeed effectively disposed of the same. He implored this Court not to interfere with the decision of the Court of Appeal but to instead uphold the conviction and sentence.

#### Submieeions in Rejoinder 10

In reply to the preliminary objection raised by counsel for the respondent, counsel for the appellant submitted that the appellant's memorandum of appeal was in line with rule 62 (2) of the rules of this Court. He prayed that the preliminary objection is overruled.

Counsel for the appellant reiterated his earlier submissions in support of the appeal regarding proof of death, malice aforethought and participation of the appellant.

#### Detarmination of the Apped 20

This is a second appeal. As the supreme court we are alive to our duty as a second appellate court in matters emanating from the high court. As laid down, nrtre 30 (1) of the Judicature (Supreme C,ourt Rules) Directions provides that:

nV[Ihere the Court of Appeal has reverse4 affirmed or uaried a decision of the High Court actingin its oiginal

jurisdiction, the court may duide matters of law or aixed law and fact, but shall not have discretion to take additional euidence.

This duty was re"echoed in Kifamunte Henry v Uganda SC Criminal Appeal No. 10 of 1997 where the justices of this court determined that:

"...h does not seem to us that except in the clea.rest of cases, we are required to re-evaluate the euidence like is a first appellate court save in Constitutional cases. On second appeal it is sufficient to decide whether the first appellate court on approaching its task, applied or failed to apply such principles."

In a case such as the present one our duty as a second appellate court is to examine whether the first appellate court applied the principles which it ought to have applied properly and if it did not, we consider it our cardinal duty to lay down the principles and then proceed and apply the said principles. In Father Nareensio Begumisa and 3 Others v Eric fibebaga [UGSC 18 of 2004] the Supreme Court laid down the law:

> 'It is a weII settled pinciple that on a firct appeal, the parties are entitled to obtain fipm the appeal court its own decision on issues offact as well as law. Although in a case of conllicting euidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the

## witnesses, it must weigh the conllicting euidence and draw its own inference and mnclusions."

Ordinarily, this Court on a second appeal can only re-evaluate evidence and interfere with the concurrent findings of the lower courts where it is apparent that the Court of Appeal has failed in its duty or in circumstances where the findings are not supported by competent evidence. {See: Boger€ Charles v Uganda, Criminaf Appeal No. 10 of 1998(SCl.

## A(1997) t-tP"7zGCIrl

It is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. In so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. It is only through such re-evaluation that this court reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. {See Baguma Fted v Uganda SCCA N0.7 of 2004}. 15 10

To this end we have considered the submissions made by both sides as well as the record ofthe appeal and the Judgments of the lower courts.

First, we wish to note that the respondent's counsel raised a preliminary objection to the effect that the ground of appeal offends ruLe 62(2) of the Rules of this Court for being too generic and he urged us to find the appeal incompetent and strike it out on that basis.

RuIe 62(D provides as follows:

The memorandum ofappeal shall set forth oncisely and under distinct heads numbeted consecutively, without argument ornarrative, the gtounds of objection to the decision appealed against...'

The rule on the framing of grounds of appeal is couched in mandatory terms. The understanding is that courts are not to accept grounds of appeal which are argumentative and contain a narration but rather they ought to specify with particularity the error the decision being appealed against contained. The ground ought to be crisp clear and to the point. We have considered the ground of appeal in the instant case which reads as follows:

## The Learned Justicos of Apped ened in law when they confirmed ths appellant'e onvicti,on when dl the ingredients of the offence of murder were not proned.

It was argued for the respondent that the ground ofappeal is argumentative and a narration of facts. The appellant invited this court to find no error in the ground.

We have had a granular look at the above ground of appeal. In our view the ground states with specificity the error against which that the appellant faults the learned Justices of Appeal that is: confirming the conviction without proving

all the ingredients of the offence of murder. It is not simply ^a narration of facts nor is it argumentative. We find that the ground does not offend rule 62(2) of the Rules of this Court. The preliminary objection raised by the respondent is dismissed.

We now proceed to consider the appeal on its merits. This appeal questions the conviction entered against the appellant for the offence of Murder contrary to section 188 of the Penal Code Act. The arguments for the appellant were that there was no proofofthe ingredients ofthe offence ofmurder beyond reasonable doubt.

Counsel for the appellant challenged the evidence led in the proof of death. He submitted that the medical expert who interpreted the medical report neither had personal knowledge or a relationship with the doctor who authored it.

It was the submission for the appellant that there was no record of the report made by PWl at Seeta Police Post concerning the death of deceased in 2009. It was also argued that the death certificate relied on by police and allowed by court was not tendered in court by the person known to the Doctor who wrote it.

Counsel submitted that the element of malice aforethought was not proved beyond reasonable doubt. To support this assertion, he argued that the appellant had no time to form an intention to kill the deceased. Lastly, he contended that the appellant was not placed at the scene of crime.

For the respondent it was argued that the appellant had withdrawn the arguments on proof of death and malice aforethought at the trial Court and at the Court ofAppeal but nonetheless, the justices of appeal re'evaluated the ingredients and found that they had been proved beyond reasonable doubt.

Being mindful of our duty as a second appellate court not to re-evaluate evidence as a first appellate would, we will start by examining the principles applied by the first appellate court in re'evaluating the trial court's evidence in order to determine whether indeed the frrst Appellate Court was within its limits or if not, whether it failed in its duty or misapplied the law.

We bear in mind that in all criminal trials the onus lies on the respondent/state and never on the appellant to prove the appellant's guilt. {See Okethi Okale & othem v R 1966 EA 669, Sekitoleko v Uganda 1967 EA 631and Seuri v R 1972 EA 4861. It is trite that an accused person should be convicted

on the strength of the case as proved by prosecution but not on weakness of his defence. An appellant must not be convicted because he gave a weak and incoherent defence. A conviction should only result from the strength of the prosecution case. {Slee: Inerail Epuku do Achietu v R {1934 I 1661.

It is imperative to remind ourselves that whereas in cases of a civil nature a party who asserts a fact must prove it and the standard is met when and if a fact is more probable than not, this is not true of criminal trialsi the standard in criminal trials is much higher. The prosecution is required prove every element the beyond reasonable doubt. See: Miller v Minister of pension6 [fglZ] ZAIIER BZ2, T[oolmingtonvDpp 19B6AC 462, Uganda v Ol,oya 1977 HCB 4, Uganda v DC Ojok 1992 HCB 64 and Akol Patrick and othsre v Uganda @OOe) HCB 6. We shall commence by having a discourse on the evidence of proof of death. The question was whether report of death tendered in evidence by a person who was not the maker had any adverse effect on the prosecution case?

The other question was whether the evidence of a single identifying witness was sufficient to convict. Counsel for the respondent/state relied on the evidence of the single identifying witness, Prossy Kayaga. PW1's testimony was that she was present when the deceased was accosted and that she reported the matter to police. The records at Seeta Police Post in 2009 or at Mukono Police Station do not reveal 20 25

that there was any such record. When we perused the court file, this issue was not tackled by the trial Judge neither was it handled by the Court ofAppeal, yet the appellant raised it in both courts.

PWl Prossy Ihyaga, the single-identifying witness testified that in 2009 the appellant hit the deceased on the head with a big stick, the deceased became unconscious. Her evidence was that she rushed to Seeta Police Post to report what had happened. She claimed that she made a police report and a statement at the police station of Seeta Mukono.

PW2 D/CPL Janes Barasa who, in 2011, carried out the appellant's arrest, testified that on 16th January 2011, a certain man going by the names of Emmanuel Muhenda appeared at the station and reported that he had cited the appellant who was a wanted person. PW2's evidence was that Barasa reported that the appellant had killed someone in 2009 and ran away and the matter was being investigated at Mukono Police Station. He testified that he did not have the case number but carried out the arrest because it was ^a serious offence. In cross'examination PW2 responded that when he checked the police records, he did not find any file about the appellant as a wanted person. To his memory, which was hearsay, he recalled that Muhenda Emmanuel had mentioned that he had a case reference but had not moved with it on the day he reported the presence of the appellant

on the village. This witness was never procured to testifu. Detective Barasa did not recommend an identification parade to his seniors. None was conducted.

PWB D/SGT Oketcho's testimony was that he was allocated the file on 25th January 2011, and he went to Seeta Police Post for inquiries. It was his evidence that he found Emmanuel Muhenda who identified the appellant, causing his arrest. His testimony was that during the investigation of the murder case he interviewed Kayagga who narrated to him what transpired in 2009. PW3 testified that the matter was handled by D/C Musinguzi who had since died. It was his testimony that he established from one Othembi who knew the appellant and the deceased, that the appellant had killed the deceased. His evidence was that he was only able to retrieve the Death Certificate since Dr. Kalungi who prepared the report was out of the Country and could not be traced without undue delay.

In cross-examination, PW3 stated that at the time he took over the frle, there was no witness statement on the file and no medical evidence except a recent entry on assault. Further, he did not establish when the deceased was buried but that the deceased was removed from the scene of crime by Othembi and his father called Sembuga, who had since died. He added that the deceased was not removed from the scene by the police.

From the above testimonies it is evident that the police detectives while lawfully carrying out their duties as investigators, were unable to obtain the original police file containing the statement allegedly made by PW1 in 2009. We also notice that Emmanuel Mugenda who allegedly reported the appellant to the police in 2011 was neither called upon to testifu in court nor was his statement recorded. Further, a one Othembi who is said to have taken the deceased to hospital on that fateful night was never called upon to testify. His evidence could have been helpful in corroborating PWl's testimony concerning what occurred on the fateful night in 2009.

Section 166 ofthe Evidenco Act Cap 6 provides that:

"In order to cortpborate tlte testimony of a witnesq any former statement made by the witness relating to the same fact, at or about the time when the fact took plare, or befote any authority legally competent to inveetigate the fact may be pwved.'

Prior statements made by witnesses are ordinarily recorded and stored by the police and adduced before the court at hearing. No such statements or files related to them were recovered. Clearly the procedural requirement under s.156 of the Evidence Act was not fulfilled. In Rex v Shaban Bin Donaldi [f%O] ? EACA 60. The Court of Appeal for Eastern

Africa underscored the necessity to document and produce in court witnesses:

" We desire to add that in cases kke this, and indeed in almost every case in which an immediate report has been made to thepolice bysomeone who is subsequently called as a witness, euidence of details of such rcprt (save such portions of it as may be inadmissible as being hearsay or the likd should always be gtven at the tial. Such euidence fiequently prpves most valuable, sometimes as conmboration of the euidence of the witness under eection 157 of the Euidence Act, and sometimes as showing that what he now swears is an afterthought, or that he is now purporting to identi{y a person whom he really did not recognize of the time or an article which is not really his.'

The above excerpt was reproduced with approval by the Supreme Court of Uganda in Bogere Moees and Anor v Ugandai SCCA No 1 of 1997, where the similarity of the provisions of the Tanganyika Evidence Act referred to in Shaban bin Doneldi (supra), and our section 155 of our Evidence Act (now section 156 in the Laws of Ugandd, were juxtaposed and discussed. We agree that in cases where ^a contemporaneous report is made to the police by someone that individual should subsequently be called as a witness and evidence of details of such report, with the exception of hearsay, should always be brought up at the trial.

In the present case, the said Emanuel Muhenda was not called as a witness and his evidence was not availed at the trial. The police file could not be traced. This court finds it difficult to appreciate the learned justices of appeal were able to conclude with certainty that what Prossy Kayaga saw two years later in 2011 was truthful or fanciful and that whether what she stated at the trial was truthful or not. Had the learned justices considered the loopholes in the police investigations, the failure to call witnesses and the possibility of error in investigations, they would have found that the conviction was unsafe.

In IGlla v Republic [fSeZ] EA 809 at p 813 the court restated the importance of upholding that practice ofreference to prior statements on the same subject matteri and observed that:-

The deeinbility for this practice would apply with special force to a case of this natwe whete the dwision depende upon the identification of the accused person some two and half years after the incident happened. The police must in their investigation have taken statements frpm both the principal w"itnesses Hallima add Jercyasio. In her euidence Hallima states that she gave the statement the following day, naa.ing-the two appellants. If this statement had been pruduced and she had in fact identifred both appellants by name the day after the incident, this would have considerably

IU

strengthened her testimony but if this portion of her euidence was untrue then it would have the opposite elfect and have made her testimony of little ualue."

Relating I&lla v R to the present case, this court seeks to find whether evidence of prior statements is available or even applicable. Ms. Kayaga is said to have reported the incident to Seeta Police after it happened. However, that record of her report is missing and was not adduced at trial. The police officer purported to have handled the matter passed away. It appears to us that the officer who took over the investigations relied on evidence from PW1 but could not retrieve her earlier report. Emmanuel Muhenda who allegedly caused the arrest ofthe appellant and connected him to the murder case was never called as a witness. The first appellate court and the trial judge ought to have taken interest in the omissions which formed part of the prosecution case.

In Bogere and Another Supreme Court Crininal Apped No I of 1997, when faced with a similar situation regarding identification of the assailants this court laid down factors which we consider pertinent when the issue of visual identification comes up as in the present case. These are:-

> 1. lllhether there were factors or citzuastances which at the material time rcndered identifrcation of the attackers difficult, notwithstanding that there were those which could facfitate identitication:

2. llthether the absence of euidence of anest and or lnlice investigation had any or no adverse effect on tlte cogency of the prosecu tion case :

## 3. Whether the appellants defences of alibi wete g'iven due consideration.

With regard to the question of relying on a single'identifying witness, the Supreme Court in Bogere (suprd gave the following guidelines:-

'flhis Court has in vety many dxided cases givea gaiddines on the appruach to be taken in dealing with euidence of identification by eyewitnesses in crtuinal cases. The starting point is that a Court ought to satisfy itself fmm the euidence whether the onditions under which identifrcation is claimed to have been made wene or were not difficult, and to wara itself of the possibility of mistaken identity.

In view of the above considerations, we find as follows:

There was no proof that this crime was reported or that Prossy Kayaga made a statement to the police two years prior to the time the appellant was arrested. Failure to conduct an independent identification parade in order to prove that Prossy Kayagga knew the appellant, makes her dock identification of the appellant suspect and wanting. There was equally no proof that the appellant was the assailant whom Prossy saw accosting the deceased. Her evidence was based on perception which after two years could be fraught with human error. The evidence of prime witness does not

meet the standard laid down in Abdala Nabulele & Another v Uganda, 1979 HCB 77 which followed Abdqlla Bin Wendo and another v R (fS6e) EACA 166; Roria v Republic [fg0Z] E. A 6683 and was followed in Bogere Moees and another v Ugandq SCCA I of 1997 which states that:

> " lVhere the case against the accused depends wholly or substantially on the correctness of one or mone identifications of the accused which the defence disputes, the judge should warn himself and the assessors of the special need for caution befote conuicting the accused in reliance on the conectness of the identification or identifrcations. The teason for the special caution is that there is a possibility that ^a mistaken witness can be a conuincing one, and even a number of such witnesses can all be mistaken. th.eiudge should then examine closely the citumstances in which the identification came to be made particularly the length of time, the distance, the light, the fauiliarity of the w"itness with the arcused. ...

VIIhen the quality is good as for example, when the identification is made after a long peiod of observation or in satisfactory conditions by a petson who knew the accused before, a Court can safely anuict even though therc is no other euidence to support the identifrcation euidence, prouided the Court adequately warns itselfof the special need for caution".

In the matter before us we find that although the learned Justices of Court of Appeal and the learned trial Judge believed that the evidence relating to the conditions under which the appellant was identified was cogent, they did not subject this evidence to sufficient scrutiny this being the evidence of a single-identifring witness. There is no evidence that the learned Justices did weigh the evidence against the looming gaps and the alibi proffered by the appellant. Had they done so they would have found that the evidence of Prossy was rife with prejudice often associated with such evidence. She may have spoken with great force and assurance and was convincing, however, her evidence was never subjected to further identifrcation to rule out the possibility of mistake or error. The Turabull rule is that ^a mistaken witness can be a convincing one and a number of such witnesses can all be mistaken (see R v I\unbult [1976] ³ All ER 64. In order to satisfy itself that the evidence is free from the possibility of mistake or error, the court considersi whether the witness was familiar with the accused, whether there was light to aid visual identification, the length of time taken by the witness to observe and identify the accused and the proximity of the witness. In our view the passage of twos, loss of police files, failure to produce other witnesses made the evidence of this witness wea and unreliable.

The above coupled with failure by the police to prove, by way of the Police Station Diary, that this crime was reported and the subsequent failure to find any proof of evidence collected two years earlier was yet another setback to the respondent/prosecution case. We therefore find that the evidence presented before the court was wanting in material particulars.

Fa\re to produce Emmanuel Muhenda dealt a big blow to the evidence of the respondent/prosecution since he was the remaining nexus to the incident who could explain and corroborate his knowledge ofthe appellant and how he placed him at the scene. His absence creates a doubt as to whether his evidence was useful at all. And if his evidence was not helpful, not producing him draws a negative inference.

Considering the above findings regarding the question of identification of the appellant the next step would be whether this matter should be sent back for retrial. In considering whether a retrial ought to be conducted, we find that in a case where there was obvious oversight by prosecution to find the missing witnesses and failure to hold identification parades and produce vital witnesses it would be an exercise in futility to assume that if this matter was sent back for retrial, a police file would miraculously appear. The above circumstances invite this court to infer that if there was ever a police frle it

was not in favour of the prosecution. Having regard to the effluxion of time and its attendant problems such as fading memory, this is not a proper case in which this court should call for retrial-

We therefore find that it is unsafe to hold that the appellant's participation was proved beyond reasonable doubt. With due respect, the learned Justices of Appeal erred in law in upholding the appellant's conviction.

10 We can safely conclude that a court properly directing itself to the law, ought to have drawn adverse inference from the failure of the prosecution to produce prime witnesses and to adduce evidence ofthe police file pertaining to the events in 2009 particularly in a case such as this, where the accused ¹⁵ person (appeltant) was arrested two years after the incident.

> The appeal is allowed, the conviction quashed, and the sentence set aside. The appellant is to be released forthwith, unless he is held on other lawful charses.

Date d at Iompata thl". . l.#. T"y rr.. O.qC..g.,m J.,J. k . . . rorn

HON. JUSTICE PERCY NIGHT TUHAISE JUSTICE OF THE SUPREME COURT

## HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT

Manuthur

HON. JUSTICE STEPHEN MUSOTA JUSTICE OF THE SUPREME COURT

HON. JUSTICE CHRISTOPHER MADRAMA JUSTICE OF THE SUPREME COURT

HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE JUSTICE OF THE SUPREME COURT

## Nota Bene

Please note that our learned brother Mike Chibita JSC opted note to sign this Judgment for reason that he would have come to a different conclusion and verdict. His position is provided for under rule 33(3) of the Judicature (Constitutional) Court of Appeal Rules SI 13 of 2010.

Rule $33(3)$ states that

(3)In criminal appeals, one judgment shall be given as the judgment of the court, but a judge who dissents shall not be required to sign the judgment.

judgment delivered as disable<br>He Ha Justicis In 1²⁶

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