[2025] UGHC 397

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CR-SC-0197-2024**

**UGANDA=======================================PROSECUTOR**

**VERSUS**

**KULE RASTO========================================ACCUSED**

**BEFORE JUSTICE DAVID S. L MAKUMBI**

**RULING ON SUBMISSION OF NO CASE TO ANSWER**

**BACKGROUND:**

The Prosecution case in this matter is that on the night of 29th October 2023, the accused person and others robbed Biira Neverless, Kabugho Sulaya and Lanyero Joyce of mobile phones and cash amounting to UGX 1,245,000 and immediately before or immediately after the robbery used a deadly weapon being a panga.

The accused person was identified at the scenes of the robberies by all the victims and by other witnesses.

The matter was reported to the police and investigations commenced leading to the arrest of Kule Rasto who was then charged with three counts of Aggravated Robbery.

The victims were all examined and found to have sustained cut wounds on their bodies inflicted by the accused during the robbery.

The accused was also medically examined and found to be mentally stable.

Plea taking was done on 22nd January 2025 and the matter was adjourned to 7th March 2025. Trial was supposed to commence on 11th March 2025 but Prosecution prayed to court for more time to enable attendance of the victims in the matter. Court granted a last adjournment to 18th March 2025. On 18th March 2025, the Prosecution again prayed for more time as two of the victims in the matter were not present in court. Court then directed Prosecution to open its case for the victim present in court and dismissed two of the counts where the victims were not in court for want of prosecution.

**EVIDENCE:**

The Prosecution primarily relied on the testimonies of three witnesses as well as a letter from Mubuku Prison Health Centre II concerning the medical state of the accused tendered in evidence as Prosecution Exhibit 1.

PW1 Kabugho Sulaya, a resident of Kizungu I Cell testified that on the 29th day of October 2023, three men entered her house and one of them cut her with a panga on her head and arm as she resisted them taking her phone. She further testified that she could not identify the attackers as they had masks on their faces. She further testified that the phone that was stolen was worth UGX 400,000 and that she reported the matter to police.

During cross-examination PW1 confirmed that she did not identify anyone during the robbery as they had covered their faces. She further testified that she had no previous knowledge of the accused.

PW2 No. 51850 Cpl Babara Joseph testified that he was the Officer in Charge at Kizungu Police Post in October 2023. He further testified that he got to know about the accused when he was arrested. He went on to testify that on 29th October 2023 he received a report about robbers near Kizungu Mosque. He and his team responded to the call where they found people had gathered and the robbers had fled. They also found Kabugho Sulaya injured at the scene. PW2 and his team then received more information about a robbery around Kizungu Railway Market and was informed that another woman had been cut and her properties taken. Subsequently at Kizungu Catholic Church PW2 and his team encountered three men who tried to run but they managed to arrest the accused Kule Rasto. PW2 then found out that Lanyero Joyce had been robbed and injured.

PW2 then established the following morning that there were reports of robbery received from Lanyero Joyce, Kabugho Sulaya and Biira Neverless. He went on to testify that Biira Neverless and Lanyero Joyce had identified the accused. Kule Rasto was among the persons that were subsequently arrested. PW2 went on to testify that whereas Kabugho Sulaya reported her case, she did not go on to identify the suspects.

During cross-examination PW2 confirmed that none of Kabugho Sulaya’s stolen items were recovered from the accused. He further confirmed that the accused was never subjected to an identification parade.

PW3 No. 430011 D/Cpl Rugahafi George testified that he investigated the three robberies. However, his testimony concerning the robbery of Kabugho Sulaya was limited to simply relaying Kabugho Sulaya’s report and he did not disclose any evidence relevant to the robbery as it related to her.

**SUBMISSIONS:**

At the close of the prosecution case, Counsel for the Accused Mr. Mishele Geoffrey left it to court to determine whether the Prosecution had made out a prima facie case against the accused person.

**ANALYSIS OF EVIDENCE:**

In criminal trials, it is trite that the burden of proof is always on the Prosecution and never shifts save for specific statutory exceptions of which the offence of Aggravated Robbery does not qualify.

Section 74(1) of the Trial on Indictments Act provides that upon the closure of the prosecution case if the evidence of the prosecution is found not to be sufficient then the court shall record a finding of not guilty after hearing from the advocates for the prosecution and the accused.

Section 74(2) of the same Act conversely provides that where the evidence of the prosecution is found to be sufficient then the accused is informed of their rights and accordingly given the option to commence their defence.

The sufficiency or insufficiency of the evidence as referred to in Section 74 of the Trial on Indictments Act is what ultimately determines whether or not there is a prima facie case against the accused by the close of the prosecution case.

While the standard of proof criminal trials is proof beyond reasonable doubt the standard for determining whether an accused person has a case to answer is evidence of a prima facie case. It is also trite that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence.

In the case of **Bhatt v R (1957) EA 322**, the East Africa Court of Appeal held that *a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence*.

The standard of proof for a prima facie case therefore may not reach proof beyond reasonable doubt but should also not be based on whimsical evidence and allegations.

To that extent therefore the sum total of the evidence adduced by the close of the Prosecution case must be of such sufficiency that in the absence of any evidence being led in defence of the Accused it would result in a conviction.

The main issue therefore is whether the Prosecution has established a prima facie case warranting the Accused being put to his defence.

In addressing this issue the Prosecution must lead evidence of the following ingredients for Aggravated Robbery.

1. Theft or stealing of some property; 2. Actual use of, or threat to use violence during the theft; 3. Actual use of, or threat to use a deadly weapon either immediately before or at the time of perpetration or immediately after perpetration of the theft; and 4. Participation of the accused in the perpetration of the offence.

**(**See **Uganda v Cpt Munyangongo Benz Tushabe and 2 Others – High Court Criminal Session at Kyenjojo Case 85 of 2003).**

The Prosecution case against the Accused was primarily dependent on the testimony of three witnesses. PW1 the victim, testified that she never identified the Accused when she was robbed as all the assailants were wearing masks. PW2 and PW3 the arresting and investigating officers respectively also provided no useful testimony linking the accused to the crime. None of the evidence given by the witnesses was useful in establishing the ingredients of aggravated robbery.

When it came to theft, it was clear that Kabugho Sulaya’s phone was never proved to have been stolen and was not recovered on the accused either.

As far as use of violence was concerned, there was no medical report tendered in court to establish whether Kabugho Sulaya was injured and the extent of the injury. To that extent even the use or threat to use a deadly weapon could not be proved beyond the word of PW1 for whom no independent medical report was tendered in court.

As far as participation is concerned there was no evidence at all to suggest that the Accused was involved in robbing PW1 as she testified that she could not identify the persons that robbed her because they were masked.

In my considered view the evidence in this matter falls far below the standard required to establish a prima facie case against the accused as none of the ingredients of the offence of Aggravated Robbery can be reliably proved against the accused.

**ACQUITTAL:**

Considering the analysis of this Court above, it is my conclusion in line with Section 74(1) of the Trial on Indictments Act that the Prosecution has not made out a prima facie case against the Accused in this matter.

The Accused Kule Rasto is found not guilty of the offence of Aggravated Robbery and accordingly acquitted and is free to go unless held on other lawful pending charges.

Right of Appeal explained.

Ruling delivered this 31st day of March 2025.

**David S. L. Makumbi**

**JUDGE**