[2025] UGHC 392

**THE REPUBLIC OF UGANDA**

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

**HCT-25-CR-SC-0096-2024**

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

**VERSUS**

1. **MBAJU STEPHEN** 2. **MASEREKA MORIS======================================ACCUSED**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

The Prosecution in this matter was represented by State Attorney Ruth Naisamula while the Accused persons were represented by Counsel Geoffrey Chan Masereka on State Brief.

The indictment in this case is for Aggravated Robbery contrary to Sections 266 and 267(2) of the Penal Code Act.

The particulars of the offence are that on the 1st day of April 2023 at Kyondo Cell in Kasese district, Mbaju Stephen, Masereka Moris alias Mumbere and others at large robbed Mbusa Sibughenderwa of cash worth UGX 75,000, a Tecno phone worth UGX 60,000, pair of shoes, a vest and used a deadly weapon being a panga during the robbery.

According to the time-honoured case of **Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The guiding precedent in Uganda to date is the case of **Miller v Minister of Pensions (1947) 2 All ER 372** wherein Lord Denning stated at Pages 373-374 that,

*“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”*

The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

Section 266 of the Penal Code provides that any person who steals anything and at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits the felony termed robbery.

Section 267(2) of the Penal Code Act provides that notwithstanding subsection (1)(b), where at the time of or immediately before or immediately after the time of the robbery, an offender is in possession of a deadly weapon, or causes death or grievous harm to any person, the offender or any other person jointly concerned in committing the robbery, shall on conviction by the High Court, be liable to suffer death.

In the case of **Uganda v Mawa alias Matua** (1992-93) HCB 65 it was held that to secure a conviction in aggravated robbery, the prosecution must prove beyond reasonable doubt that there was use of or threat to use a deadly weapon at or immediately after the theft and that the accused participated in the commission of the robbery

For the Accused to be found guilty of Aggravated Robbery the following ingredients must be proved beyond reasonable doubt by the Prosecution.

1. Theft – In proving theft the Prosecution is expected to prove the following: (see **R v Turner (No.2) [1971] 1 WLR 901**) 2. Taking of property belonging to another 3. Lack of consent or claim of right 4. Intention to permanently deprive another person of property 5. Participation of the accused 6. The Accused used or was in possession of a deadly weapon 7. The Accused participated in the offence

The Prosecution led evidence from three witnesses concerning theft.

PW1 Mbusa Sibhughenderwa testified that he knew the accused persons as people he had met at Majengo on 1st April 2023. He testified that at around 9PM while on his way to a burial in Kihara the motorcycle he was being transported on developed a problem in Majengo and that while at Majengo he had met the accused persons who told him they were also going for burial. He further testified that he had seen the Accused persons by means of a torch. He went on to testify that he spent about 50 minutes with the Accused persons during which they had pounced on him and cut him several times and removed his shoes and took UGX 70,000 from his pocket as well as a Tecno phone worth UGX 65,000. He also testified that A1 had cut him on the head while A2 had bitten him on the breast.

PW1 further testified that during the attack someone had interrupted the attackers and asked what he had done and upon being told A1 was a thief the person advised the attackers to take him to the LC1 Chairperson. He went on to testify that three of the attackers left and A1 had then taken him to the LC1 Chairman. PW1 further testified that A1 had taken his National ID from him and that the National ID was recovered from A1 at the police station.

PW2 Katuramu Emmanuel testified that he was the LC1 Chairperson of Nyondo cell. He testified that the victim Mbusa was brought to his home by Mbaju Steven and five other people who alleged he had stolen a chicken from someone called Kule. PW2 had then tried to call Kule who denied knowledge of the theft. He went on to testify that he asked A1 why he had cut the victim and A1 had told him that it was medicine for thieves. PW2 had then advised the persons holding the victim to take him to the police. PW2 went on to testify that as they were going to police some of the persons that had brought the victim left and only A1 and A2 remained.

PW2s testimony was challenged on grounds that it was inconsistent with his plain statement admitting in evidence as DEX 1. The inconsistency was on account of the fact that PW2 had only referred to Mbaju as having brought the victim and not any other persons.

PW3 No. 56906 D/C Katende Vincent testified that he was allocated the case file on 5th April 2023. He testified that the accused persons had robbed PW1 of UGX 175,000, Tecno phone, pair of shoes, vest and a National ID. He went on to testify that PW1 had informed him that he had been with the accused persons on 1st April 2023 at around 2100HRS at a bar and had requested them to escort him for a burial. The accused persons had then turned on him and robbed him.

PW3 also testified that A1 had been found with PW1s National ID and that he had also interviewed the suspects. However, no charge and caution statements were tendered in evidence to confirm whether the accused persons confessed. PW3 further testified that he had taken pictures of the victim copies of which were admitted in evidence as PEX 3.

During cross-examination PW3 testified that he had not tracked the stolen phone and relied on what PW1 told him to determine what was stolen. He further testified that he never visited the crime scene was not present when the National ID was recovered from A1.

PW4 Cpl Ochok John Bosco testified that he was allocated the case file on 4th April 2023 and he had exhibited the National ID which was received in evidence as PEX 4. During cross-examination he stated that the panga and National ID had been handed over by the Chairman LC1 along with the suspects. The panga was tendered in Court and exhibited as PEX 4B He further testified that he did not record a statement from the LC1 Chairman and charge and caution statement was recorded. However, the statement was never tendered in evidence.

PW4 further stated in cross-examination that the panga was taken to the Exhibit Store at Kasese Central Police where the Exhibits Officer signed it in on 4th April 2023.

The Exhibits Officer did not appear to testify in Court.

I have considered the evidence available concerning the theft. The evidence of theft in this matter comes directly from the victim who testified as PW1 and is corroborated by circumstantial evidence from other witnesses. PW1 testified that money, a mobile phone and a National ID were taken from him. Of these items it was only the National ID exhibited as PEX 4 that was recovered. PW4 testified that the National ID and a panga were handed in by the LC1 Chairperson.

The LC1 Chairperson testified as PW2 and while he did not testify about handing in the National ID and the panga, this detail was not contested. Furthermore, PW2s testimony about the victim having been accused of being a chicken thief and then PW2 establishing that it was not true tended to corroborate PW1s story that the reason he had been attacked was theft.

It is also pertinent to note that according to PW4, the victim’s National ID was recovered from the LC1 Chairman. A2 testified during his defence that the National ID was taken from the victim by A1. By this testimony it is clear that A1 and A2 were jointly involved in theft of the victim’s property.

I therefore find that in the circumstances, and in the absence of any other evidence to the contrary, the Prosecution has proved beyond reasonable doubt that a theft did in fact occur.

As concerns use of a deadly weapon PW1 testified that A1 cut him on the head with a panga during the robbery and continued to cut him several times.

PW2, the LC1 Chairman in Kyondo testified that the accused persons had brought PW1 to his home while he was bleeding from the head, arms and breast. He further stated that A1 had told him that it was medicine for thieves.

PW3 testified that PW1 had been interviewed and he had stated that the accused persons cut him with a panga. PW3 went on to testify that pictures were taken of PW1s condition and put on the case file.

The pictures were received in evidence as Prosecution Exhibit 3. The pictures were endorsed by PW3 on 5th April 2023. He further testified on cross-examination that he was not aware whether fingerprints were lifted from the panga and that he was transferred before investigations were concluded.

There was also evidence in the form of Police Form 3 received in evidence as an agreed fact as PEX 1. In that form it was reported that the victim PW1 had a cut wound on the right side of the scalp, cut wounds on the fingers of his left hand and cut wound on the right wrist.

PW4 testified that he received a panga allegedly used in the robbery from PW2 and the panga was received in evidence and marked as Prosecution Exhibit 4B.

Based upon the available evidence I do find that the Prosecution has proved beyond reasonable doubt that a deadly weapon being a panga was used during the robbery.

As concerns participation PW1 testified that he had been with the accused persons for about 50 minutes and had seen them by the light of his torch. He particularly singled out A1 as the one who cut him on the head and A2 as the one that bit him on the breast. He also testified that they switched between speaking Lukonzo and Rutooro.

PW2 testified that A1 and A2 had brought PW1 to his home in the night in April 2023 claiming PW1 was a thief. He further testified that he had then taken PW1 along with A1 and A2 and others who escaped along the way to Rukoki Police.

PW3 and PW4 the investigating officers testified that A1 and A2 had been brought to the station by PW2 along with PW1.

A1 testified on oath and denied robbing and assaulting PW1. He went on to testify that PW1 had approached him and A2 at the market in Kyondo and asked them to help take him to PW2 as he had been assaulted in a bar. He further stated that he did not know why PW2 lied about him and A2 claiming PW1 was a chicken thief. He also denied knowledge of the panga and claimed that it was PW2 that had handed it over to police. During cross-examination he stated that he had no grudge with PW2.

A2 similarly testified on oath stating that on 1st April 2023 he and A1 had met PW1 while returning from making bricks in Kyondo village. He testified that PW1 was barefoot and had no shirt. He further testified that PW1 had informed them that he had been hurt in a bar fight and he wanted them to take him to the LC1 Chairman. When the LC1 Chairman took them to police PW1 claimed they had robbed him. A2 denied having told the Chairman anything about stolen chicken.

Elaborate on chain of participation ….

From the available evidence I do find that the Prosecution has proved beyond reasonable doubt that A1 and A2 shared a common intention and participated in the aggravated robbery of PW1 in this matter.

In light of the foregoing analysis I do agree with the Assessors in this matter and I do find the Accused persons Mbaju Stephen and Masereka Moris guilty as indicted of the offence of Aggravated Robbery and I do hereby convict them of the same.

**ALLOCUTUS:**

The Prosecution presented the following aggravating factors in sentencing:

* Aggravated Robbery is a capital offence. * The sentencing range for the offence starts at 35 years and falls in the range of 30 years to death. * The degree of injury to the victim. * The offence was pre-meditated. * The weapon was used repeatedly.

The Prosecution prayed for a deterrent sentence.

Counsel for the Accused presented the following mitigating factors:

* Convicts are first time offenders and have spent two years and 1 month on remand. * Convicts are remorseful. * Convict No. 1 is 48 years old and is married with 11 children. * Convict No. 1 was in an accident and has a metal implant. * Convict No. 2 is 18 years old and is remorseful and capable of reform

The Convicts both prayed for forgiveness and Counsel for the Accused concluded by praying for leniency.

**SENTENCE:**

I have considered the aggravating and mitigating factors in this matter. I am also mindful of the manner in which the offence was carried out. By the testimony received in Court the victim likely owes his life to the random passer-by who insisted that the convicts take him to the LC1 Chairman. The intention of the convicts appeared to be focused on not only robbery but also taking the victim’s life and passing it off as an act of mob justice which act is also very much illegal. The convicts have asked for forgiveness but do not seem to regret their actions against the victim. It is also pertinent that the convicts attacked the victim repeatedly and then attempted to falsely accuse him of theft.

Nonetheless I also take into consideration that the convicts appear to be first time offenders and are on different ends of the age spectrum with one almost 50 years old and the other now 20 years old having been charged at the age of 18. It is unfortunate that someone who should be an elder to the younger and therefore a good influence can get caught up together with a youth in such a matter.

In light of the above, I do hereby sentence Mbaju Stephen to serve a term of imprisonment of 10 years less time spent on remand of 2 years, 1 month and 1 day. He will therefore serve a remaining term of 7 years, 10 months and 29 days.

I also sentence Masereka Moris to serve a term of imprisonment of 10 years less time spent on remand of 2 years, 1 month and 1 day. He will therefore serve a remaining term of 7 years, 10 months and 29 days.

Right of Appeal explained.

**David S. L. Makumbi**

**JUDGE**

**15/05/25**