[2025] UGHC 339

### 5 **THE REPUBLIC OF UGANDA**

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

# **CRIMINAL SESSION NO. 0055 OF 2023 (Arising from Kisoro Criminal Case No. 0013 of 2023) (Arising from Kisoro CRB 256 of 2023)**

**UGANDA** ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTION**

#### **VERSUS**

# 15 **A1: NGABIRE SAMUEL alias KIBUTUSI A2: NDYAYISENGA RICHARD alias ARSENAL A3: NIRINGIMANA NICHOLAS A4: KWIZERA DERRICK A5: MUSEKURA SHABAN**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

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

- 25 Ngabire Samuel alias Kibutusi (A1), Ndayisenga Richard alias Arsenal (A2), Niringimana Nicholas (A3), Kwizera Derrick (A4) and Musekura Shaban (A5) are jointly indicted for **Aggravated Robbery** contrary to **Section 285** and **286(2)** of the **Penal Code Act**. The particulars giving rise to the indictment are that Ngabire Samuel alias Kibutusi (A1), Ndayinsenga Richard alias Arsenal (A2), Niringimana - 30 Nicholas (A3), Kwizera Derrick (A4) and Musekura Shaban (A5) and another still at large on the 08/03/2023 at Kisoro Hill village in Kisoro District robbed Niyonkuru Mark of two mobile phones Samsung S8+ Galaxy and Samsung JISACE all valued at two million fifty thousand shillings only. (UgX 2,050,000/=) and a wallet containing cash worth one hundred seventy six thousand shillings only - 35 (UgX 176,000/=), ATM cards, National Identity Card and at or immediately before or immediately after the said time or robbery were in possession of deadly weapons to wit knives, pangas, scissors and iron bars.

5 All five Accused persons denied the charge.

**Representation.**

Ms. Best Kemigisha (State Attorney) appeared for the Prosecution while Mr. Kibulirani Nicholas and Mr. Nabaasa Rodgers represented the Accused persons

10 on state brief.

At the commencement of this trial the Assessors were Mr. Rwengeyo Joseph and Mr. Tumushime Emmanuel but the trial concluded with the aid of a single Assessor Mr Tumushime Emmanuel.

During the preliminary hearing pursuant to **Section 67** of The **Trial on**

- 15 **Indictment Act** the Prosecution and the defence agreed to the admission of uncontested medical evidence in Police Form 24 which was the medical examination of A1, A2, A3 and A5. The same were admitted as Exhibit P1 – P4 respectively. - 20 **Burden and Standard of Proof**.

This being a criminal trial 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

25 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 persons to be convicted of Aggravated Robbery.

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

- 5 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 persons participated in the robbery**. - 10

**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 owners of a thing capable of being stolen takes that thing from the owner

15 without a claim of right.

To prove theft, the Prosecution relied on the evidence of the complainant Mark Nyonkuru (PW1) who testified that on the 08/03/2023 at around 8:00PM at Shaza Health Centre III as he was leaving after playing football he decided to use a short cut through the football pitch and when he got to the last house he met a

- 20 group of six men who encircled him and demanded for money. The complainant states that he replied that he had no money and so they searched him for valuables and took his 2 phones, Samsung S7 and Samsung JI – S worth UgX 2,000,000/= and his wallet that contained UgX 176,000/=. It is his evidence that the following day he reported the matter at Kisoro Police Station. The stolen items have never - 25 been recovered.

The defence in cross examining the complainant made reference to his Police Statement in which he stated that the stolen phone was Samsung Galaxy S8+ and the money was UgX 170,000/=.

5 I do not find the discrepancy to go to the root of the complaint lodged with the Police. The difference in the make of the Samsung phone and a short fall of UgX 6,000/= in the amount of money stolen is not fatal.

Theft of property was committed and in this regard the Police Statement is consistent with the evidence of the complainant of this I am persuaded and the 10 defence did not rebut this evidence.

It is therefore my finding that the Prosecution has proved beyond reasonable theft of the complainant's properties.

**b) Use of actual violence at, before or after the theft.**

15 It is the evidence of the complainant that a knife was pressed against his rib side by one of the six men and that he decided to let them search him and take his properties.

It is quite clear that the complainant (PW1) did not suffer any harm. Actual violence was not directly meted out on him. This fact not withstanding he felt the

- 20 knife against his rib side and this was a warning for him not to resist or he would face the consequences. Section 285 of the Penal Code Act defines robbery to include use of threats in order to obtain or retain the thing stolen. Furthermore, in **Uganda versus Obua Polycarp** and **another HCCS No.0454** of **2025** it was held that threats to use violence is an ingredient that will suffice where no actual - 25 physical violence has been inflicted on the Victim. In the present case the presence of the knife at the rib side of the complainant (PW1) was sufficient threat and warning that his attackers would resort to deadly force if need be.

- It is therefore my finding that the Prosecution has proved the 2nd 5 ingredient beyond reasonable doubt. - **c) That the assailants were armed with a deadly weapon before during or after the theft**. - 10 **Section 319** of the **Penal Code Act** defines a deadly weapon interalia to include an instrument made or adapted for shooting, stabbing or cutting and any imitation of such instrument.

The complainant in this case Niyonkuru Mark (PW1) testified that a knife was held to his rib side by one of the six men and that as a result he let them search

15 him and his 2 phones and money were taken. It is trite law that a knife is adapted for stabbing or cutting and as such the same falls squarely in the stated category of a deadly weapon.

It is my finding that the Prosecution has proved beyond reasonable doubt that his assailants were armed with a deadly weapon during the theft.

**d) Participation of the Accused persons.**

It is the evidence of the Niyonkuru Mark (PW1) a Gombolola/Internal Security Officer (GISO) that he knows all five Accused persons and he proceeded to mention each by name and that he knew them before this case.

- 25 He states that on the 08/03/2023 at around 8:00PM at Shaza Health Centre III he was leaving after playing football and when he got to the last house he was approached by Samuel alias Kibutusi (A1) and others, altogether six men. It is his evidence that Kibutusi (A1) then gave him a firm handshake and he realised that he was pulling him to himself and that Nicholas (A3) and Kwizera (A4) were - 30 behind him and the rest encircled him and they demanded for money. That when

5 he replied that he did not have any Kibutusi (A1) searched him from the front took his 2 phones and wallet.

According to the complainant (Pw1) he also saw Arsenal (A2), Kwizera (A4) and Shaban (A5). It is the testimony of the complainant that he saw the Accused persons well because they approached him from the front and came close to him

- 10 where there was security light given off by a bulb that was deem but it was sufficient for him to be able to identify the Accused persons. The complainant also states that he knew the Accused persons before the incident because given the nature of his work he is involved in the screening of suspects at the Police and he had severally seen the Accused persons during this process. - 15

This evidence is corroborated by that of DC Kansiime Pius (PW2) who testified that all 5 Accused persons frequent Police in terms of arrests as suspects in robberies and he described them as being very dangerous. He states that on the 10/03/2023 the complainant Niyonkuru Mark (PW1) reported a case of robbery 20 by a group of men against him and that he knew the men and identified them by name A1, A2 and A5. That when he was shown the album kept at Police for notorious criminals he identified A1, A2, A3 A4 and A5. According to DC Kansiime they commenced investigations and arrested A5 in the process for the attack and

robbery of a Prison Warder one Kiseka while A3 in the month of April was 25 arrested for breaking into a Motor Vehicle and stealing a bag containing a laptop and clothes. That A1 and A2 were also later arrested with the assistance of an informant and that when in custody A1 admitted participating in the robbery against the complainant and revealed that he did so with A2, A3, A4 and A5. That after they committed the robbery they ran to a place commonly referred to as

- 5 *"Russia"* where there is a house in which they meet. That A1 led them to *"Russia"* in the presence of A2 where they found 6 boys smoking opium but when they saw them they run away but they managed to arrest A4 in the ceiling of that house and recovered 3 pangas, 2 scissors, 2 knives and a basin of opium that were tendered to Court as Exhibit. - 10 In **Abdalla Bin Wendo versus R (1953) 20 EACA 166** Court laid the following conditions as necessary for correct identification; - **1) Familiarity of the Accused to the witness at the time of the offence.** - **2) Conditions of lighting.** - **3) Proximity of the Accused to the witness at the scene of the crime.** - 15 **4) The length of time the Accused come under the observation of the witness.**

I find it believable that the nature of work of the complainant (PW1) as GISO is such that he has to network with security agencies. I therefore accept that he has been involved in screening of suspects at Police. I find no reason to doubt the 20 truthfulness of DC Kansiime that this is not the first brush with the law that the Accused persons are having and that they are frequently in and out of Police cells on allegations of robbery. The reference to A5 being an Accused in another criminal trial involving robbery is verifiable and the same is pending before this Court in HCT – 11 – CR – SC No. 0069 of 2023. This just goes to show that the 25 testimony of DC Kansiime is credible and does not in any one suggest that the Accused persons guilty. The complainant named each of the five Accused persons some even using their aliases. I am therefore persuaded that the complainant was familiar with the Accused persons prior to the date in issue.

- 5 It is the evidence of the complainant (PW1) that there was a deem security light on the last house where he was confronted by the Accused persons. He also clarified that the reference to the word *"deem"* was not that he could not see well but that it was sufficient for him to identify the Accused persons. I accept his evidence to be true. - 10 The proximity between the Accused persons and the complainant was close enough to favour proper identification. According to the complaint A1 held him by the hand firmly and drew him to himself and that the Accused persons had approached him from the front and encircled him before searching him for valuables. - 15 This close interaction I am persuaded did aid in proper identification and this coupled with the fact that the Accused persons also spoke to him demanding for money.

This entire ordeal must have lasted for some time that enabled the complainant to identify the Accused persons. It is also imperative to note that the evidence of

20 the complainant does not reveal that the Accused persons made any attempts to hide or disguise their faces thereby making the identification process for the complainant Niyonkura (PW1) who had previously seen them at Police screenings easier.

The Accused persons in their unsworn defence all raised the defence of alibi. I 25 reject the defence of Ngabire alias Kibutusi (A1) that on the date in issue of the 08/03/2023 he was in Kampala. According to the complainant (PW1) he and Kibutusi (A1) shook hands and this firmly. I am convinced that the complainant (PW1) is familiar with A1 and furthermore A1 later led the Police to their hideout in *"Russia".* This defence of alibi has been discredited by the Prosecution evidence.

- 5 I also reject the defence of alibi put up by Richard (A2) that on the date in issue of 08/03/2023 he was also in Kampala where he works for Riham Factory. The complainant (PW1) even referred to A2 by his alias name of *"Arsenal"* and this was corroborated by DC Kansiime that when the complainant (PW1) reported the matter at Police he mentioned A2 to by name. - 10 Nicholas (A3) in his defence also claimed that on the date in issue of the 08/03/2023 he was at home sick.

This defence cannot be true because the complainant places A3 just behind A1 when he was confronted and that A4 Kwizera was standing next to him. I also do not accept the defence of alibi raised by Kwizera (A4) that he was at home on the

15 night of the 08/03/2023. The conduct of Kwizera (A4) in locking himself in the house in *"Russia"* and hiding in the ceiling of that house until the Police dragged him out of it are not the actions of an innocent man.

The Court in **Rex versus Tubere s/o Ochen (1945) 12 EACA** held that the conduct of Accused person before or after the offence in question might sometimes give

- 20 an insight into whether he or she participated in the crime. The conduct of A4 in hiding in the ceiling points irresistibly at his guilt. I also reject the defence of alibi raised by Shaban (A5) that on the date in issue of the 08/03/2023 he was at school studying. A5 was well known to the complainant (PW1) who even said that he knew his parents. Furthermore, DC Kansiime (PW2) - 25 also testified that the complainant mentioned A5 by name when he reported his matter to Police.

The evidence of the complainant was given in a candid and forthright manner. It was quite clear from his demeanour that he knew the Accused persons well having interacted with them while at Police.

5 I believe that he was telling the truth about the night in issue. I am cautious about the danger of relaying on the testimony of a single identifying witness but I am persuaded that the complainant (PW1) properly identified the Accused persons and the factors in place favoured proper identification.

It is therefore my finding that the evidence presented by the Prosecution has

10 discredited the defence of alibi put up by the Accused persons who have been placed at the scene of crime.

After considering the evidence adduced by the Prosecution and defence and in disagreement with the opinion of the single assessor for the reasons that I have advanced, I find all five accused persons guilty of the offence of Aggravated

15 Robbery contrary to **Section 285** and **286(2)** of the **Penal Code Act** and convict them of the same.

Before me,

…………………….……………….. 20 **Samuel Emokor Judge 20/02/2025.**