[2024] UGHC 1234

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE**

**CRIMINAL SESSION NO. 0172 OF 2022 (Arising from Criminal Case Kisoro – AA – No. 0034 of 2021) (Arising from Kisoro CRB No. 675 of 2020)**

**UGANDA :**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **PROSECUTION VERSUS NO. 56426 D/SGT AHAISIBWE HERBERT alias KYABOONA**:::::**ACCUSED**

## **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

This case entails an indictment for Aggravated Robbery Contrary to **Section 285** and **286 (1)** and **(2)** of the **Penal Code Act**. The facts giving rise to this indictment are that Ahaisibwe Herbert and others still at large on the night of the 26/11/2020 at Muhabura View Guest House in Bunagana Town Council in Kisoro District robbed Kadusabe Provia of her money UgX 50,000,000/= and at or immediately, before or immediately after the time of the said robbery caused grievous harm by use of a sedative noxious substance to wit chloroform on the said Kadusabe Provia.

The Accused pleaded not guilty.

#### **Representation.**

Ms. Najjunju Julie (Senior State Attorney) appeared for the Prosecution while Mr. Bakanyebonera Felix represented the Accused on state brief.

The Assessors for this trial were Mr. Livingstone Ndyamutunga and Ms. Kembabazi Christine.

During the preliminary hearing pursuant to **Section 66** of the **Trial on Indictment Act (TIA)** medical evidence in PF3 and PF24 were received as un contested evidence.

PF3 was in respect of the medical examination of the Accused. It is dated 14/12/2020 and carried out at Mutolere Hospital and signed by Dr. Twine. It was received as Exhibit P1.

PF24 was in respect of the medical examination of the Accused. It is dated 12/12/2020 and carried at Kisoro Hospital The findings being that the Accused is of a normal mental status. It was received as Exhibit P2.

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

This being a criminal case it is one whose proof lies squarely on the Prosecution and the Accused has got no duty to prove his innocence.

It is also proof beyond reasonable doubt. Any doubts must be resolved in favour of the Accused and the Accused must only be Convicted on the strength of the Prosecution case and not on the weakness of the defence case.

## **See Ssekitoleko versus Uganda (1961) EA 531.**

#### **Ingredients of the offence**.

The Prosecution must prove each of the following essential ingredients beyond reasonable doubt for the Accused to be Convicted of Aggravated Robbery.

#### **1) That there was theft of property.**

- **2) Use of actual violence at, before or after the theft or that the Accused persons caused grievous harm to the complainant.** - **3) That the Assailants were armed with a deadly weapon before during or after the theft.** - **4) That the Accused participated in the robbery.** - a) **Theft of property**.

**Section 254(1)** of the **Penal Code Act** provides that theft occurs when a person fraudulently and without claim of right and with intent to permanently deprive the owner of a thing capable of being stolen takes that thing from the owner without a claim of right.

To prove theft, the prosecution relied on the evidence of the victim Provia Kadusabe (PW7) who testified that in 2020 she was staying in Bunagana Kisoro where she was the manager at Muhabura Guest house between August 2020 and November 26th 2020.

It is her evidence that as the manager she was overseeing the affairs of the guest house that included 2 bars, a Centenary Bank Agency, Mobile Money business and Restaurant. Provia (PW7) states that they would bank the money in Centenary bank every 2 days depending on the amount of money collected. That in the month of November 2020 the Accused checked into the Guest house and was later joined by 2 men who also became guests. According to Provia one night that month at around 1:00AM she received a call from one of the three men asking for a room on the upper floor and that this was not an unusual request so she opened her office and got her keys and that one of the men was waiting for her on the second floor to open the rooms and while opening the rooms she felt something covering her nose and mouth and everything went blank.

That she remembers being woken up by people and the rooms were open and the money that she had in the bag was all gone totaling to UgX 55,000,000/=. That the money had been collected from mobile money, the bars and banking agency. Her evidence is corroborated by that of Mutesi Joseph (PW4) who testified that he established Muhavura View Guest House and to this effect tendered to Court its certificate of registration that was received as Exhibit P9. It is his evidence that the business offers accommodation for guests, food and banking agents for Centenary bank. It is the evidence of Mutesi (PW4) that the guest house was robbed on the 26/11/2020 and UgX 55,000,000/= was stolen. According to Mutesi their accounts were audited and this was the money that was found to be missing.

To this effect he tendered to Court the transaction register that was received as exhibit P6 and the same reveals that as of 25/11/2020 the business had transactions amounting to UgX 58,830,000/=. A demand deposit statement from Centenary bank was also tendered in by the Prosecution showing transactions from the 23/11/2020 to 26/11/2020 for UgX 58,830,000/=.

The defence did not discredit the Prosecution evidence in regard to the fact that money belonging to Muhavura View Guest House was stolen on the night of the 26/11/2020.

It is therefore my finding that the prosecution has proved beyond reasonable doubt theft of money amounting to UgX 58,830,000/-.

# 2**. Use of actual violence at, before or after the theft or that the Accused persons caused grievous harm to the complainant.**

It is the evidence of Provia Kadusabe (PW7) that in 2020 in the month of November she was the manager at Muhavura View Guest House when in the night she received a call from one of her customers that they wanted to change their rooms. That she got her keys and one of the men was waiting for her on the second floor to open the rooms and that while opening the rooms she felt something covering her nose and mouth and everything went blank and she remembers things being forced down her throat and trying to vomit those things out and trying to crawl to the door and later waking up in hospital. Her evidence is corroborated by that of Tumusiime Stephen (PW1) the supervisor at the Guest house and Mukamitwe Warren (PW2) who both testified that on the 26/11/2020 they conducted a search for Provia (PW7) when she was not reachable on phone and she was not in her room. It is their evidence that they discovered her in room 13 lying on the floor, unable to talk and unconscious and they quickly organized transportation for her to Mutolere Hospital.

Corroborative medical evidence is contained in PF3 which is the medical examination of the victim Provia Kadusabe (PW7) dated 14/12/2020 that shows that she was admitted on the 26/11/2020 and her medical state on the 14/12/2020 reveals that she had red eyes, with very low blood pressure that was unrecordable, that she was semi-conscious and had features of inflammation around the neck. The observation was that the victim might have been forced to inhale a sedative noxious substance which made her get sedated and the pain might be due to forcing her on a hard object when struggling. The injury was classified as grievous harm.

The evidence presented by the Prosecution in the testimony of the victim Provia (PW7) shows that she was attacked from behind and a sedative substance was forcefully applied on her mouth and nose. She also recalls some substance being forced down her throat. The extent or impact of this attack was still felt 3 weeks later on the 14/12/2020, P1 the medical report reveals that her eyes were red and her blood pressure so low that it was unreadable and she was still semi-conscious and there was inflammation around her neck. This inflammation is proof that great force was exerted on her neck when she was attacked from behind. The injury caused to Provia (PW7) was also classified as grievous harm. The evidence of Stephen (PW1) and Warren (PW2) that they found Provia (PW7) unconscious on the floor in room 13 is testament to the fact that she did suffer actual violence.

It is therefore my finding that the Prosecution has proved beyond reasonable doubt that actual violence was used at and before the theft causing the victim Provia (PW7) grievous harm.

# **3. That the assailants were armed with a deadly weapon before during or after the theft.**

It is the evidence of the victim Provia (PW7) that upon receiving the request for change of rooms she picked her keys and moved to the second floor where she found one of the men waiting for her to open the rooms and that while opening the rooms she felt something covering her nose and mouth and everything went blank. Her evidence is supported by that of Stephen (PW1) and Warren (PW2) who testified to finding her unconscious in room 13 and organizing her transport to Mutolere Hospital. Corroborative evidence is contained in the medical report in Exhibit P1 carried out 3 weeks later on 14/12/2020 that details that the victim (PW7) had red eyes with very low unreadable blood pressure and was semiconscious.

The report also indicates that the victim might have been forced to inhale a sedative noxious substance which made her get sedated. The victim in her evidence to this Court testified that 4 years later she still suffers the effects of this drug and has developed blood shot eyes, swollen eyes and her eyes continue to tear up to this day.

## **Section 319 of the Penal Code Act provides**:

*"(3) in sub section (2) a deadly weapon includes: -*

*(a) (i) an instrument made or adapted for shooting, stabbing or cutting and any imitation of such instrument,*

*(ii) any substance,*

*which when used for offensive purposes is capable of causing death or grievous harm or is capable of inducing fear in a person that is likely to cause death or grievous bodily harm and*

*(b) any substance intended to render the victim of the offence unconscious"* The evidence presented by the Prosecution that a substance was administered to the victim (PW7) causing her to lose her consciousness is credible as testified to by the Provia (PW7) the victim and the two eye witnesses Stephen (PW1) and Warren (PW2) who attended to her while she was unconscious.

It would appear that a high dosage was administered on the victim leading to her still being semi-conscious 3 weeks later as per the report in Exhibit P1.

The victim still feels the effects of this substance 4 years later.

The medical report in Exhibit P1 finds that the victim might have been forced to inhale a sedative noxious substance which made her get sedated.

The prosecution however has not been able with certainity to establish the exact substance that was administered to the victim. This omission is not fatal to the prosecution case. The supreme Court faced with a similar scenario in **Simbwa Hassan Kisembo versus Uganda SCCA No.0015 of 2020** did not fault the two lower Courts on making a finding that a deadly substance was used in the robbery interalia observing that:

*"Regarding the failure on the part of the Prosecution to establish with certainity what the deadly substance was, the record shows that the adduced evidence on record considered by the lower Courts is that what was ingested by the victim left him unconscious for four days. The two lower Courts relied on the expert evidence of the Doctor (PW5) who confirmed that the Appellant's state of unconsciousness was not due to illness or alcohol but possibly chloroform, ethyl, halothane which can cause unconsciousness when administered through food.*

*Thus based on the above, we cannot fault the concurrent findings of the lower Courts…"*

The facts of the instant case are on all fours with the above case and the victim in this case just as in the above case lost consciousness immediately the substance was administered on her and only recovered days later. The findings of the medical report in Exhibit P1 are that sedative noxious substance could have been used in the attack. After taking in to full consideration the facts of this case I have no doubt that the substance administered on the victim Provia(PW7) was to render her unconscious which it did with immediate effect and the same also caused her grievous harm.

It is therefore my finding that the prosecution has proved beyond reasonable doubt that the assailants were armed with a deadly weapon before during and after the theft.

## **(c) Participation:**

The Accused in his sworn defence denied the charge against him stating that he has never been to Bunagana or Muhabura View Guest House. That he only got to hear about Kadusabe provia (PW7) in this Court and has never booked any rooms at Muhavura Guest House. It is the evidence of the Accused that he was handed over to Kisoro Central Police Station by Military Personnel from a Safe House on a charge of Aggravated Robbery under CRB 492 of 2020 which was discontinued by a Nolle prosequi dated 15/10/2021 that the defence tendered to Court as Exhibit D1. It is the testimony of the Accused that a one Annet had spent 3 days at the station and even attended a suspects' parade before she said that she had reorganized him and that all this while they had been together at Police. The Accused also testified that later he was taken by D/ASP Kyalimpa who he did not know and that he was interrogated over a robbery in Bunagana and subjected to torture and he was forced to confess by telling them what they wanted to hear.

The Accused therefore denies committing the charge.

It is trite law that where an Accused person raises the defence of alibi the onus is on the Prosecution to discredit this defence and to place the Accused at the scene of crime.

## **See Kyalimpa Edward versus Uganda SCCA No. 0010 of 1995.**

To discharge this burden, the Prosecution relied on the evidence of the victim Provia Kadusabe (PW7) who testified that in 2020 between August until 26/11/2020 she was staying in Bunagana Kisoro where she was the manager at Muhabura Guest House. It is her evidence that she knows the Accused and that the Accused in the month of November 2020 went to the Guest House where he booked an entire floor of rooms 1 – 7 and that he was later joined by two other men. It is the evidence of Provia (PW7) that the two other men would leave and return in the evening while the Accused would stay the entire day at the Guest House and would even go into her office and they would hold conversations. It is her testimony that in the evening of the 25/11/2020 the other two men returned between 6:00 – 7:00PM and tried to offer her apples but that she refused. That the two men including the Accused then ordered for food and that at midnight like she usually did she closed her office and went to her room that was on the 3rd floor.

According to Provia (PW7) at around 1:00AM she received a call from one of the three men asking for a room on the upper floor and that this request was not unusual so she went and opened her office and got keys and that she found one of the 3 men waiting for her on the second floor to open the rooms and as she did so she felt something covering her nose and mouth and everything went blank.

Her evidence is corroborated by that of Tumusiime Stephen (PW2) who testified that in November 2020 he was working at Muhavura View Guest House in Bunagana Town as the supervisor. It is his evidence that he knows the Accused by face but not by name. That the Accused was one of the customers at the Guest House and that he had made payments for 3 – 4 days and the next day was joined by 2 men who also stayed in the Guest House. It is the testimony of Stephen that on the 26/11/2020 at around 6:30PM they received a call from their boss Mutesi Joseph (PW4) that he was trying to call Provia (PW7) but her phones were unavailable. It is upon this call Stephen (PW1) states that they mounted a search for Provia (PW7) until they discovered her unconscious in room 13 and that they also discovered the money collected at the hotel was missing having been stolen. It is further the evidence of Stephen (PW1) that the Accused and his colleagues left the hotel that morning between 5:00 – 6:00AM and that they located Provia (PW7) at around 7:30AM.

His evidence is corroborated by that of Warren Muhamitwe (PW2) who testified that he is a security guard at Muhabura Guest House and that in November 2020 he was still the security guard. It is the evidence of Warren (PW2) that he knows the Accused because the Accused used to sleep at the Guest House however he did not know his name. It is his evidence that in November 23rd, 2020 the Accused and two others were guests at the guest house and that it was the Accused who had booked for the other two men, Warren (PW2) states that on the 26/11/2020 Stephen (PW1) informed him that the boss was looking for Provia the manager but that she was not in her room and that they looked for her until they found her in a room in which the Accused and his friends used to sleep and that the one they used to call the "boss" was the one staying in that room.

It is the testimony of Warren (PW2) that they found Provia in a terrible condition, her eyes were red, she was weak and could not speak. That they found items like empty bottles that they suspected to be chloroform and they organized for her to be taken to Mutolere Hospital.

It is also the testimony of Warren that the Accused and his friends left the Guest House at around 6:00AM and they asked him to open the gate for them saying that they were going to repair their car and return. According to Warren they had with them their bags and they never returned to the Guest House. Warren (PW2) states that later he was invited to Kisoro Police station where an identification parade was organized and he identified the Accused as one of the men who had stayed in the Guest House prior to the robbery.

The evidence of Provia (PW7), Stephen (PW1) and Warren (PW2) that the Accused had been a guest at the Guest House in the month of November 2020 and that he had made reservations for 2 other men who joined him at the Guest House has been very consistent. All 3 witnesses were emphatic that they knew the Accused from his stay at the Guest House. They all gave their evidence in a candid and forth right manner and they did not waiver under the rigorous cross-exanimation that they were subjected to by the defence Counsel. I believe their testimony to be true and free of any ill will or malice. I do not believe the defence of the Accused that he was handed over to the Police in Kisoro straight from a safe House. I believe this defence of alibi to be false and merely a work of fiction.

According to Provia (PW7) the Accused used to spend the entire day at the Guest House and would even go to her office and they would hold conversations. All 3 Prosecution witnesses were familiar with the Accused and I rule out any possibility of error in the identification of the Accused. The Accused according to Warren (PW2) in the morning of the 26/11/2020 left with the two other men before Provia (PW7) was discovered unconscious in a room previously occupied by one of the two men referred to as the *"boss".*

The testimony of Warren (PW2) that he identified the Accused later at an identification parade conducted at Kisoro Police Station is corroborated by D/ASP Kyalisima Hillary (PW5) who testified that he together with DC Mutungi arrested the Accused on the 07/12/2020 from Mutanda Road in Kisoro Town over Aggravated Robbery committed in July 2020 and that while he was detained at Kisoro Police Station a suspect one Annet an employee of Muhabura Guest House who had been arrested in an operation in Bunagana Town on the 10/12/2020 recognized the Accused in the morning parade as one of the robbers who had robbed Muhabura Guest House where she was working and notified him of the same. It is the evidence of D/ASP Kyalisima (PW5) that they sought for an employee of the Guest House and they received Warren (PW2) upon which he arranged for an identification parade that consisted of 9 suspects including the Accused. That they were all of similar height, size and appearance in colour. According to PW5 he placed the Accused 4th from the right and that Warren (PW2) selected the Accused from the parade. That he re-arranged and made the Accused to wear a vest and placed him as No. 6 from the right and warren still identified him. According to the witness (PW5) Annet also separately identified the Accused in an identification parade.

PF69 filed by D/ASP Kyalisima (PW5) was received as Exhibit P3 together with 3 photographs that were received collectively as Exhibit P4.

It was the evidence of D/ASP Kyalisima (PW5) that the Accused signed and also used a thumb print on PF69.

It is trite law that for a successful identification parade to be mounted the following must be observed:

- *1) The investigating officer in the case is not entitled to be present at the identification parade.* - *2) The identification itself should consist of at least 8 people who resemble the suspect in age, height and general appearance.* - *3) Where the suspect has an unusual feature which cannot be replicated by other members of the parade, steps should be taken to conceal the location of the feature on the suspect.* - *4) The suspect has a right to be represented by an advocate.* - *5) When the suspect is brought to the place where the identification parade is held, they are asked if they have any objection to the arrangements.* - *6) The suspect is also allowed to choose his/ her own position in the line.* - *7) Before the witnesses attend the identification parade, arrangements should be made so that they are unable:* - *(a) To communicate to each other if they are many in the case.*

- *(b) To see any member of the parade* - *(c) To see or be reminded of the photograph or description of the suspect e.g in this case one would not be allowed to say point at your teacher.* - *(d) To see the suspect before the identification parade.* - *(e) A video recording or colour photograph must be taken of the identification parade.* - *8) Exclude every person who has no business there.* - *9) If the witness desires to see the Accused walk, hear him speak, see him with his hat on or off, see that this is done. As a precautionary measure it is suggested the whole parade be asked to do this.* - *10) See that the witness touches the person he identifies.*

## **See** (1) **Baluku and another versus Uganda SCCA No. 0021 of 2014**

## (2) **Uganda versus Lanyero Grace High Court Criminal Session No. 0062 of2016.**

In the present case the investigating officer was D/ASP Natukunda Claphas (PW3) and the officer who conducted the identification parade was D/ASP Kyalisima Hillary (PW5).

It is the evidence of D/ASP Kyalisima (PW5) that the identification parade consisted of 9 participants.

PF69 received as Exhibit P3 corroborates his evidence and is signed by 9 participants including the Accused.

Further corroboration is the coloured photographs in Exhibit P4 that show 9 participants. I am satisfied from the photographs that the participants do resemble the Accused in height, age and general appearance.

The Accused did sign Exhibit P3 indicating that he was satisfied with the manner in which the parade was conducted.

According to D/ASP Kyalisima (PW5) the Accused was placed first as the 4th from the right and when Warren (PW2) selected him his position was changed to No. 6 from the right and this time he wore a vest together with another participant and still Warren (PW3) selected him.

The photographs in Exhibit P4 do corroborate these changes in the parade.

The defence did not discredit the manner in which the identification parade was conducted in cross examination of D/ASP Kyalisima (PW5) his evidence to this effect remains intact. The Accused in his defence only attacked the participation of Annet in the identification process stating that she had already seen him in the cells at the Police. It is imperative to note that Annet was not called as a Prosecution witness as per the evidence of D/ASP Kyalisima (PW5) Annet and Warren (PW2) were kept separately during the entire process of identification. The Accused it would appear did not have any objections to how the identification parade was conducted when Warren (PW2) identified him as one of the men who had robbed the Guest House.

It is therefore my finding that the identification parade was properly conducted and Warren (PW2) owing to his previous interaction with Accused at the Guest House was familiar with him and properly identified him.

The Prosecution also tendered in the Accused's charge and caution statement through D/AIP Tukwasibwe Isdolo (PW6) and the same was admitted after a trial with in a trial was conducted and received as Exhibit P5. In his statement the Accused admits checking into the Guest House on the 12/11/2020 and securing rooms for Davis and Eddie and that the two joined him on the 24/11/2020. That the Accused stayed in Room No. 7 while Davis was in Room No. 1 and Eddie in Room 13. The Accused narrates the different roles that they each played, his was to befriend the security guard while Eddie fell in love with Fravia. That on the 26/11/2020 they called him at 0230hours to Davis's room and they told him they had finished and would leave at 0400hours.

That they left at 0430 hours and that they told him that they had managed to get UgX 14,ooo,ooo/= out of which he received UgX 3,200,000/=, Eddie UgX 7,000,000/= and Davis UgX 3,800,000/=. That he left for Mbarara leaving Davis and Eddie in Kisoro Town but returned to Kisoro on 7/12/2020 and was identified by a suspect at Kisoro Police Station.

The allegations of torture by the Accused leading to his admissions in the charge and caution statement are obviously false as determined by this Court prior to admitting the statement as Prosecution evidence.

The Prosecution evidence has corroborated the charge and caution statement in Exhibit P5.

It is imperative to note that Provia (PW7) did not testify that it was the Accused who administered the sedative substance but rather that it was one of the 2 colleagues of the Accused. This fact not withstanding **Section 20** of the **Penal Code Act** provides:

*"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the Prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of that purpose each of them is deemed to have committed the offence".*

The Accused in this case acted in unison with his 2 colleagues who he made reservations for at Muhabura Guest House and continued to be identified with his colleagues throughout their stay at the Guest House. The Accused did not disassociate himself from the actions of his colleagues but proceeded to share with them the fruits of their robbery and even left in their company. It is therefore irrelevant that one of the other two administered the sedative substance on the victim Provia (PW7) the Accused is just as guilty of the same.

The evidence presented by the Prosecution in this case has been cogent and consistent and has not been rebutted by the defence.

It is my finding that the defence of alibi put up by the Accused has been discredited and he has been placed at the scene of crime.

After considering the evidence adduced by the Prosecution and the defence together and in full agreement with the assessors it is my finding that the Prosecution has successfully proved its case beyond reasonable doubt and I find the Accused guilty of the offence of Aggravated Robbery Contrary to **Section 285** and **286(1)** of the **Penal Code Act** and accordingly convict him of the same. Before,

……………………………. **Samuel Emokor 25/07/2024**

**25/07/2024**

**Accused**: Present.

**Prosecution**: Ms Najjunju Julie (Senior State Attorney)

**Mr. Bakanyebonera Felix**: On state brief.

Both Assessors present.

**Clerk**: Vianney.

**Court**: Judgment delivered in open Court.

**Prosecution**: The Convict is convicted on a serious offence that carries a maximum penalty of death.

The victim suffered serious injuries classified as grievous harm. These injuries have left a lasting impact on the victim and 4 years later the victim still suffers physical and psychological trauma. She still has nightmares over the incident and will always suffer from the same. The offence was premeditated. There was planning and the Convict and others deliberately targeted the Guest House. Befriended the workers and executed their plan.

The offender was part of a group who had committed several offences and this was laid out by the several Police Officers who testified. There was a dangerous substance that was used on the victim and impacted on her health. There was loss of property that was never recovered. The Convict was a serving Police officer at the rank of a sergeant and took oath to serve the Country to protect life and property, to defend and protect against crime and to respect the laws of this Country and to maintain and protect Public safety. The Convict broke the code of conduct by involving himself in the commission of crime. This is a person charged with the duty to protect others. We pray for a deterrent sentence.

The sentencing guidelines start at 35 years. Court can either enhance or reduce the same.

The Convict is a danger to community like his colleagues still at large. We pray for a sentence of 35 years. I so pray.

## **Allocutus**:

**Mr. Bakanyebonera Felix**: The Convict is 39 years old. He is a Public servant and a serving Police Officer because he has not been interdicted by the force in which he has served for 14 years. He was arrested as D/Sgt which he attained through a lot of training and he was useful to the Police Force.

The state has not shown that the Convict has ever been convicted, he is a first offender. Earlier attempts to frame the Convict were proved by the Nolle prosequi that he tendered to this Court.

He is a married man with 6 children. The oldest being 14 years and youngest 7 years.

This big family depends on the Convict as the sole bread winner. The children are still in school where they need fees and his wife cannot cope.

Coupled by the fact that they are staying in a rented house and it is taking a high toll on the family. The family has never stabilized in the absence of the Convict. We pray that this honourable Court exercises lenience when passing sentence because the Convict is not a danger to the community. There is no evidence to this effect and only one person was affected by the acts of the Convict.

We therefore pray for mercy.

**Court**: Does the Convict have anything to say?

**Convict:** I am No. 56426 D/Sgt Ahaisibwe Herbert. It is 7 years since my incarceration. The initial file was dismissed on 10/08/2022 when the present charge was placed on me. I pray that this Court considers the period spent on remand from 14/12/2017. I also pray that this Court considers that the charge and caution statement of 14/12/2020 to 15/12/2021 I had never appeared before a Judicial Officer for remand and Judicial Proceedings.

This I pray is considered. I therefore pray that this honourable Court gives me a lenient sentence and consider my entire period on remand. I so pray.

**Prison Warder**: We received the Convict on 15/12/2021. He has been on remand for 3 years, 7 months and 10 days.

**Court**: Sentence reserved for 26/07/2024.

## Before

……………………………. **Samuel Emokor Judge 25/07/2024**

## **REASONS FOR SENTENCE.**

**No. 56426 D/SGT AHAISIBWE HERBERT alias KYABOONA** is convicted of Aggravated Robbery Contrary to **Section 285** and **286(1)** of the **Penal Code Act**. The offence was committed at Muhabura View Guest House in Bunagana Town Council where a sedative noxious substance was administered on Kadusabe Provia rendering her unconscious and UgX 58,830,000/= was stolen.

The Prosecution has submitted that the victim in this case suffered serious harm and that even 4 years after the crime still suffers physical and psychological trauma with nightmares. The Prosecution emphasizes that the robbery was born out of proper planning and the workers at the Guest House were first befriended before the Convict and others executed their mission. That the Convict was part of a group that had been involved in other robberies as well laid out by the Police Officers who testified in this case. The Prosecution was also critical of the Convict highlighting the fact that the Convict is a serving Police Officer at the rank of a sergeant who took an oath to serve this Country to protect life and property, detect and prevent crime. The Prosecution therefore prays for a deterrent sentence of 35 years imprisonment.

Counsel on state brief on the other hand in mitigation submits that the Convict is a Public servant as a serving Police officer and that he has served for the last 14 years and is not on interdiction. That as a Detective sergeant he has undergone extensive training and was useful to the Police Force.

That the Convict is a married man with a family of 6 children that is dependent on the Convict as the sole bread winner and therefore prays for lenience. The Convict also made a personal prayer that this Court takes into consideration the period spent on remand.

I would wholeheartedly agree with the Prosecution that the actions of the Convict should not be treated lightly. The Convict is not the common robber that one may encounter from time to time on. The Convict in this case is a Detective Sergeant with the Uganda Police Force, a well-trained and skilled Police Officer as well stated by the Prosecution the Convict took an oath to serve this Country to protect life and property. As a detective the Convict is to detect and prevent crime. It is very ironical that the Convict used his skills gained with the Uganda Police to advance his criminality.

The Convict was the one who scouted and carried out surveillance of the Guest House since he arrived first and always stayed behind as his colleagues moved out and returned in the evening. It is the Convict who offered the blue print on how the robbery could be orchestrated.

The tax payer's money spent in the training of the Convict was instead turned around by the Convict and used to aid robbers of which he was part and parcel of. The defence has submitted that the Convict is still a serving Police Officer and to this my response is that the Convict is a bad apple that must be routed out of the Police Force.

The Court of Appeal in **Etoma Tom versus Uganda CACA No. 0404 of 2016** in a similar case reduced a sentence of 35 years to 20 years imprisonment.

The same Court in **Azabo Badiru alias Yayanga** versus **Uganda** reduced a sentence of 35 years to 28 years imprisonment.

The **Constitution (Sentencing Guidelines** for **Courts of Judicature**) **(Practice) Directions** places starting point for Aggravated Robbery at 35 years with the aggravating factors increasing the same and the mitigating factors reducing. I have taken into consideration both the mitigating and aggravating factors in this case.

For the offence of Aggravated Robbery Contrary to **Section 285** and **286(1)** of the **Penal Code Act** I hereby sentence the Convict to serve custodial sentence of 25 years imprisonment. I will from this sentence deduct the period spent on remand by the Convict of 3 years, 7 months and 10 days. In the result the convict will serve 21 years, 4 months and 21 days of his sentence commencing today the 26th day of July, 2024. An order for compensation of UgX 58,830,000 doth issue to the proprietor of Muhavura View Guest House.

Right of Appeal Explained within 14 days.

Before me,

………………….………………. **Samuel Emokor Judge 25/07/2024**

## **26/07/2024**

Convict present.

Prosecution: Ms. Najjunju Julie

Mr. Bakanyebonera Felix on state brief.

Both Assessors present.

Clerk: Vianney.

**Court**: Sentence delivered in open Court.

Before,

…………………………………….

**Samuel Emokor Judge 25/07/2024**