[2025] UGHC 396

**THE REPUBLIC OF UGANDA**

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

**HCT-25-CR-SC-0102-2024**

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

**VERSUS**

**MUMBERE ROGERS==================================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 2nd of August 2023 at about 0530HRS Bakesigaki Protozio, a UPDF Officer resident in Rumuri A Cell in Kicwamba Sub-county in Rubirizi district was attacked by the Accused and others at large at Stanley Street in Kasese District and was seriously beaten and robbed of a mobile phone and shoes all valued at UGX 160,000 as well as cash of UGX 170,000. He made an alarm and was rescued by patrol officers on duty who managed to arrest the Accused at the scene.

The victim was medically examined and was found to have suffered grievous injuries to both his eyes.

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

**EVIDENCE:**

The Prosecution primarily relied on the testimonies of two witnesses as well as Police Form 3A and Police Form 24 tendered in evidence as Prosecution Exhibits 1 and 2 respectively.

PW1 No. 26117 D/C Tumwebaze Jotham testified that on 2nd August 2023 he was on duty at Kasese Police Station when he received the victim Bakesigaki Protazio who had come in to report a case. The victim had wounds on his face and head and the eyes were swollen. The victim had then narrated the ordeal and when asked whether he could identify the culprits, he said that they had ran away after he made an alarm. PW1 then testified that foot patrol police had arrested the Accused while he was on the run and that the suspect identified himself as Mumbere Gerald at the time of arrest. PW1 went on to testify that he took the victim to the cells and he identified the Accused as one of the assailants who had robbed him of his phone, shoes and cash worth UGX 170,000.

During cross-examination PW1 indicated that he did not visit the scene of crime and that neither himself nor the Scene of Crime Officer and the O/C-CID had visited the scene. He further testified that the accused was never subjected to an identification parade and that he had not been found with any of the stolen items. He also testified that the Accused was unknown to the victim before the attack. PW1 further disclosed that the victim had said that he had been attacked at night. Furthermore the accused had denied committing the offence even when subjected to charge and caution statement.

PW2 No. 40065 Sgt Odora Boniface Ronald testified that on 2nd August 2023 at 0530HRS he and his team responded to noise of an assault near Mariana Bar where they came across three people beating a person who was lying down. He further testified that two persons immediately fled and he was only able to arrest the accused. He further testified that the victim at the scene cried about losing shoes, a phone and money worth UGX 170,000.

Upon cross-examination PW2 testified that the accused while violent and drunk upon arrest never had any of the stolen items or weapon on him. He further testified that the victim was a soldier who was calling the accused by name.

The Prosecution subsequently opted to close its case after two witnesses had testified. The victim Bakesigaki Protazio was never produced to testify.

**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 opted to proceed with the trial without the firsthand evidence of the victim. This meant that the evidence of aggravated robbery was for the most part second-hand and therefore hearsay evidence. The only evidence that might have withstood the test against hearsay evidence was that of PW2 Sgt Odora, the arresting officer. He testified that he responded to noise of an assault and had found three people beating a person who was lying on the ground. However, throughout his testimony PW2 never identified the person who was being beaten beyond describing him as a soldier and the items that he said were stolen from him. While the description of the victim being a soldier was consistent with the description of Bakesigaki Protazio who was received by PW1 as the complainant at the police station, there was a material inconsistency in the evidence of PW1 and PW2 which rendered PW2s version of events unreliable in the absence of the victim.

The inconsistency stemmed from the fact that PW1 stated during cross-examination that the accused person was unknown to the victim prior to the attack while PW2 stated during cross-examination that the soldier was calling the accused by name at the scene of the crime. This automatically cast doubt on PW2s version of events with regard to what he directly witnessed at the scene of crime.

It is also pertinent that whereas PW1 testified that the accused had been arrested on the run, PW2 testified that they had managed to arrest the accused before he had a chance to flee.

PW1 further testified that the victim had informed him that the attack had taken place during the night hours. This therefore automatically cast doubt on how the victim was able to later identify the accused in the cells. It was also unclear the circumstances under which the victim was said to have identified the accused as PW1 admitted that no identification parade was ever conducted. There is therefore no objective yardstick against which it can be determined that a correct identification was done. This is an issue that could only be resolved by the victim himself taking the stand to testify about the circumstances of the attack but unfortunately prosecution closed its case without ever producing the victim.

The need for caution in matters of identification of accused persons is well established in case law. In the case of **Abdallah Nabulere v Uganda – Supreme Court Criminal Appeal No. 9 of 1978** it was held that the reason for special caution concerning evidence of identification is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. It was further held that the judge should examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused.

In this matter there was no direct evidence from the victim and PW1 and PW2 even contradicted themselves regarding whether the victim had previous knowledge of the accused. It is also pertinent to note that the accused person was not found with any of the stolen items or even a weapon at the scene. There is therefore no reliable way to tell whether he was an active participant in the robbery or just a drunkard in the wrong place at the wrong time.

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 established based upon the available evidence.

**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 Mumbere Rogers 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**