[2023] UGCA 293

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

(Coram: B Cheborion, JA, C. Gashirabake, JA, O. Kihika, JA.)

## CRIMINAL APPEAL NO. 0215 OF 2020

(Arising from Criminal Session No. HCT-00-CR-CS-177/2013)

#### **BETWEEN**

#### ZIRABA MOHAMMED...................................

## AND

#### UGANDA...................................

(Appeal from the Judgment of the High Court of Uganda Holden at Soroti, by Batema N. D. A, J. delivered on 13^th April 2018) 15

#### **JUDGMENT OF COURT**

#### **Introduction**

1.] The appellant was charged with 5 counts of Aggravated Robbery contrary to sections 285 and 286(2) of the Penal Code Act. The appellant was convicted and sentenced to 20 years' imprisonment to run concurrently on counts 1 and 2. The trial Judge deducted the 5 years spent on remand and ordered that the appellant serve a sentence of 15 years. The appellant was acquitted on counts $3.4$ and $5$ .

2.] The appellant being aggrieved with the decision of the High Court lodged an 25 appeal in this court. The appeal is premised on two grounds set out in the Memorandum of Appeal as follows;

> 1. That the learned trial Judge erred in law and fact when he held that the prosecution had proved the ingredient of participation of the *Appellant in the robbery.*

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⁵ 2. 'l'he learned triol ,ludge erued in lav' and./itct v,hen he sentenced the uppellants to 20 years' imprisonmenl lo run concurrently y,hich sanlence i,s harsh und excessive in lhe circumslances

#### Rcrrresentation

3.] At the hearing of the appeal, the appellant was represented by Mr. Allan Mooli. 'l'he respondcnt was represented by Mr. Simon Ssemalemba, Chief State Attorney. 10

#### Ground onc

That thc lcarned trial .f udge errcd in law and fact when he held that thc prosecution had proved thc ingrcdients of participation of thc appellant in thc rob bery.

## Submissions frr r thc appcllan(

- 4.] It was submitted 1br thc appellant that the prosecution bears the burdcn to prove bcyond reasonable doubt that thcre was thc thcft of the property belonging to the victim, the theft was accompanied by the use of violencc or thrcat of usc of violencc, possession ol a dcadly weapon during the thcft and participation of the accused person as thc ingredients of aggravated robbcry. - 5.] lt was conceded by counsel for the appellant that the trial Judge properly evaluated the facts that there was the theft of propcrty bclonging to the victim, that thcft was accompanicd by thc use olviolence or thrcat of violcncc, and possession of a deadly weapon during thc theft. The contention however was that the trial Judgc did not propcrly evaluate the evidence regarding the participation of thc appcllant beyond reasonablc doubt. - 6.] Counscl submitted that the prosecution case was hinged on one single identifying witness PWl, Kitimbo Stephen who is the victim in counts I and

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⁵ 2. It was submitted that PWI testificd that in April 2013, he and other businessmen left Soroti at 7:00 p.m., and thcy rcached the sccne ol the robbery at 1 :00 a.m. between Kachumbala and Nakaloke, because the road was under construction. PWI further testified that the appellant and others jumped out of the bush with pangas and stopped thcm.'Ihe appellant and the others ordered PWI and the other businessmen to come out of the motor vehicle.'Ihe assailants told them to lie down and they tied them with ropes. PWI further testified that they took him with the other occupants of thc Motor Vehicle Fuso Fighter Lorry UAQ 948L, down thc swamp and ticd them on trees. PWI told the Court that the appellant was putting on an arrny uniform. Additionally, PWl, testified that thc assailants were harsh and that one of them took his Shs. 65,000. He further testified that thcy took off with their motor vehicle. 'lhercafter the driver was able to untie himself and rescue them. l'he vehicle was intercepted by Police at Iganga where PWI met the appellant. PW I testified that hc identificd the appcllant that night sincc there was moonlight. l'hat at 7:00 a.m. hc rnet the accuscd person under arrest at Iganga Police and that he was putting on a T. shirt and not an arrny uniform.

7.] It was submitted that this courl should bc cautious while considering the evidcnce of a singlc witness. Counsel relied on Abudala Nabulerc & ² Othcrs vs. Uganda, CACA No.9 of 1978, and Walakira Abas, Sgt. Kizito Joseph and Munakanira John vs. Uganda,, SCCA, No.25 of 2002.

8.] Counsel further submitted that in the instant appcal, it is clear that the only identifying witness is PWI who is the victim of the robbery. PW2 Inspcctor of Police Eradu Julius testified that he met the truck alrcady impounded at Nakalama. One ol thc occupants jumped off and ran away. 'lhe appellant remained sitting in the truck and he was arrested. It was further submitted that PW2 testified that thc appellant said there werc four in the robbcry. The

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⁵ appellant stated that the one who jumped olf the motor vehicle was a "born of Kaliro." PW2 told the Court that hc could not tell whether the appellant was the driver.

- 9.] It was submitted that the appellant admitted being arrested from the said lorry but in his defence, he argued that he boarded the truck around the Mbale clock tower on his way to Jinja. When he boarded the truck, he found 4 people in the said vehicle. 'l'he appellant lurthcr testified that he found a sit in the driving cabin behind thc driver. the appellant stated that he did not rccognize the colour and makc of the truck since it was dark. -Ihe appellant further testified that he slept off as the truck moved and was awoken by shouts ordcring them to get down from the driver's cabin. The appellant then realized that he was the only onc rcmaining in thc truck. He obeyed and stepped down. When he came down, he saw policemen who asked him many questions about the truck but he told them he knew nothing and that he did not know his fellow passengers. It was submittcd that the appellant's evidcncc pokes doubt as to whether indeed PWI identified the appellant as one of the assailants of the robbery. - 10.] It was submitted for the appellant that the robbery took place at around ^I:00 a.m., and the victim as a single identifying witness was not lamiliar with thc appellant. The quality of the tighting which was from the moon points to the poor quality which increases the danger of mistaken identity. It was submitted that the risk of mistaken identity could only have been minimized or clearcd through an identification parade which was not conducted. - ^Il.] Counsel for the appellant submitted that the conduct o[ the appellant was that olan innocent person, thc appellant did not run when the truck was intercepted by police, unlike the other occupants. Counsel relied on Rex vs.

Tubere s/o Ochen (1945) 12 EACA 63, where the East African Court of

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Appeal held that the conduct ofan accused person before or after the offencc in question might sometimes give an insight into whether he or she participated in the crime. It was submitted that bccause there were poor lactors of identification, the conduct of the appellant olnot running away and the admission of PWI that he was shown thc appellant after arrest at the police station, it was their submission that the prosecution failed to prove the ingredients of participation bcyond reasonablc doubt. Counsel submitted that it is trite that in Kooky Sharma and Another vs. Uganda, SCCA No. 44 of 2000, where the court held that the accused person should be convicted on the strength of the prosecution evidence and not on the weakness of his or her delence.

## Submissions for the resrr<lndent

12.) It was submitted lor the rcspondent that the learned trial Judge rightly lound that the appcllant had parricipated in thc robbery. It was additionally submittcd that thc conditions for identification werc lavorable lor PWI to positively identify the appellant as one of their assailants. I)W1 tcstificd that thcre was sufficicnt moonlight. I']Wl tcstillcd that the appcllant was thc onc commanding the group to tie the victims.'l'his offcred enough time lor PWI to obscrve the appellant. Counsel submitted that the conditions laid down in Nabulerc vs. Uganda, Criminal Appcal No. 09 of 1978, wcre fully satisfied. It was the evidencc of PW3 that whcn the appellant was arrestcd, he revealed that four pcople participated in thc robbcry. 'l'he appellant told them that thc victims of the robbcry wcre leli safc and alivc in Kachumbala. 'l'his corroboratcd thc evidcncc o['I)Wl who stated that thcy werc robbcd in Kachumbala and none olthem was hurt.

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⁵ 13.] It was submittcd that what the appellant revcaled to PW3 was relcvant and admissible within the meaning ol S 29 of thc Evidence Act and therefore amounted to"other evidence" that pointed to the guilt of the appellant.

## Considcration of Court

- l4.l We are mindful that as a first Appellate Courl, our powers are spelt out in Rule 30(l)(a) of the Judicature (Court of Appeal Rules) Directions S. I l3-10. The Appellate Court is mandated to re-evaluate the evidence before thc trial court as well as thc judgment and arrivc at its own independent judgment on whethcr or not to allow thc appeal. A first appellate court is cmpowered to subject the whole of the evidence to fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have thc opportunity to scc and hear the witnesses firsthand. 1'his duty was stated in Sellc & another v Associatcd Motor Boat Co. Ltd.& others, (1968) E. A 123. 10 15 - ^I5.1 Considering the burden ofprooland standard of proof in Criminal cases and based on the presumption ofinnocence enunciated in Article 28(3) ofthe Constitution of thc Republic ofUganda 1995,an accused person can only be convicted by a court of law on the strength ofthe prosccution casc and not on thc weakncss of the delcnse casc. - ^I6.] PW 1 , Kitimbo Stephen testified that as businessmen they hired a truck to transport their produce from Soroti, on the fatelul day at 1:00 am between Kachumbala and Nakaloke road, thcy were attacked by the appellant and other assailants. PWI and the other businessmen were moving in a Truck Motor Vehicle Fuso Fighter, Registration No. UAQ 948L. PW I testified that thc appellant and the other assailants jumped out ofthe bush with pangas and asked them to get out ofthe truck. The appellant ordered the other assailants

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to tie them to differcnt trees. PWl, was able to see the appcllant because there was sufficient moonlight. Aftcrward, the appellant and the assailants drove the truck away.

17.l PW3, Inspcctor of Policc, Uradu Julius, tcstified that they met thc truck already impounded at Nakalama but one o[ the occupants jumped olf the vehicle and disappcared. The appellant was arrested from thc truck.

l8.l 'l'he appellant conceded that he was arrested from the stolen truck. I-lowever, he statcd that he was looking for transport to rctum to Jinja when he got the truck at the clock tower in Mbale and they gave him the lift. When they started the journey he slcpt off only to bc awakened by voices in Swahili telling them to come out. Whcn hc wokc up, the other occupants in thc truck had run away.

19.] It was the appcllant's submission that thc conditions were not lavorablc lor proper idcntification. 'l'hc test of propcr identification was cxplicitly outlincd in Abudala Nabulerc & 2 Others vcrsus Uganda, Supreme Court Criminal Appeal, No. 09 of 1978, as follows;

"'l.he .ludge shoultl then examine closely lhe circumstances in which the identification came lo be made, parlicularl.v. the length o.l time lhe tt:;cd vus ttttltr rthsa Iion the distunt ht tha o/ lhc wilnc.s.s trilh tha accu:cd. ,1ll these .fitt'tors go lo the quulit).,ol th( identi/ication evidence. If the quulitl, is good, the dunger of nti,staken idcntitf is retluced but thc poorer lhe qualitl', tha greoter the dunger."

20.) According to the evidence on record, the robbery took placc at l:00 a.m. The appellant and other assailants took PWI and the other businessmen to thc nearby bush and tied thcm to trees. 'l-hc joumey lrom the truck to thc trces to where thcy wcre ticd, was sufficicnt time to rccognize the appcllant.

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The appellant was the one who was issuing commands to the other assailants, this engagement was sufficient for proper identification. Additionally, PW1, stated that he was aided by the moonlight. We therefore agree with the finding of the lower Court that the conditions were favorable for proper identification.

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$21.1$ Turning to whether it was fatal not to conduct an identification parade as alleged by counsel for the appellant, the Supreme Court in **Mulindwa** Samuel v. Uganda, Supreme Court Criminal Appeal No. 41 of 2000, held that.

"Regarding identification parade, we, with respect, are unable to agree that the failure to hold one was fatal to the appellant's conviction. The object of an identification parade is to test the ability of a witness to pick out from a group the person, if present, whom the witness has said that he has seen previously on a specific occasion. Where identification of an accused person is an issue at his trial, an identification parade should usually be held to confirm that the witness saw the accused at the scene of the crime. However, where other evidence sufficiently connects the accused with the crime, as was the case in the present appeal, failure to hold an identification parade is not fatal to the conviction of the accused person."

- The identification parade is not a mandatory requirement for the $22.1$ identification of an appellant. This means the failure to conduct it may not be detrimental to the prosecution case where there is other cogent evidence that connects the appellant to the crime. See Baluku Samuel and Another vs. - 30

## Uganda, SCCA, No.21 of 2014.

$23.]$ In this case, there was cogent evidence to connect the appellant to the crime. PW1 testified that he saw the appellant at the scene of the crime. PW1

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⁵ properly described how the appcllant was dressed. IIe also identified hrm because of the moonlight and the fact that he was the one who was commanding the others to tie the victims to the trees. The evidence of PWI is corroborated with the evidence ol PW3, who testified that the appellant was found in the robbed truck Motor Vehicle. Fuso Fighter, Registration No. UAQ 948L, which the appellant conceded too. We therefore find that the fact that the appellant was found in the stolen truck, is cogent evidence to prove the participation of the appellant. Additionally, PWI stated that the robbery happened at around l:00 a.m. and PW4 stated that hc receivcd a call at 4:00 a.m. that there was a robbery along Soroti Road. l'he proximity in time is evident that the appellant was part of the robbery it is not convincible that, the appellant slarted traveling from Mbale at 10:00 p.m. only to reach Nakalama the place of arrest at 4: 00 a.m. It is more logical that it would take them that long lrom Kachumbala to Nakalama because ol the ongoing construction work. In our view, this evidence was sufficient to connect the appellant to the crime. It was thercfore not fatal that the identification parade was not conducted.

24.1 This ground thcrefore fails.

### Ground 2

The lcarncd trial Judge erred in law and fact when he sentenced the appellants to 20 years' imprisonmcnt to run concurrcntly which scntcncc is harsh and cxcessive in thc circumstances.

25.1 It was submittcd had thc learned trial Judgc propcrly considered the mitigating factors, hc would have arrived at a lesser sentencc othcr than the scntcnce of 20 years. Counscl relied on Adama .lino vs. Uganda, Court of

Appeal, Criminal Appeal No. 50 of 2006, whcrc thc Court of Appcal

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⁵ reduced the sentencc of thc Appellant who was charged with 3 counts of aggravated robbery lrom life imprisonment to I 5 years of imprisonment. '['he court took into account the fact that though gunshots were fired at the time of the robbcry, no lifc was lost. It was submitted that the sentence of 20 years was harsh in thc circumstances taking into account the mitigating factors.

# 10 Submissions f<r r the rcspondcnt

- 26.1 Counscl lbr the rcspondent submitted that the sentence passed down against the appellant was neither harsh nor excessive in the circumstances. It was submittcd that the trial Judge while sentencing took into account the mitigating factors namely that thc victims of the robbery were not physically injured, the goods stolen were recovered, and thc fact that the appellant had spent 5 years on remand which he deducted from the sentence of 20 years. Counsel prayed that this Court refer Mutebi Ronald & Anor vs. Uganda' Criminal Appcal No. 259 of 2019, where the court held that a sentence of 30 ycars was neither harsh nor excessive. - It was submitted that this scntence was ncither harsh nor excessive and this appeal should be dismissed and sentence upheld. 20

### Consideration of Court

27.1 -l-hc Suprcme Courl has laid down the principles upon which an appcllate Court should interfere with the sentencing discretion of the trial Court, in Kyalimpa Edward vs. Uganda; Supremc Court Criminal Appeal No.l0 of I995, the Court rclied on R vs. Haviland (1983) 5 Cr. App. R(s) I09 and held that:

> ln appropriate senlence is u maller .for the discretion of the senlencing judge. liuch case presents ils ou,n Jitcts upon which ^a

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judge exercises his discretion. It is the practice that as an appellate *court, this court will not normally interfere with the discretion of the* sentencing judge unless the sentence is illegal or unless the court is *satisfied that the sentence imposed by the trial judge was manifestly* so excessive as to amount to an injustice: Ogalo s/o Owoura vs. R (1954) 21 E. A. C. A 126 and R vs. MOHAMEDALI JAMAL (1948) 15 E. A. C. A 126.

#### $28.$ In Kiwalabye vs. Uganda, Supreme Court Criminal Appeal N0.143 of 2001 it was held:

The appellate court is not to interfere with a sentence imposed by a trial court that has exercised its discretion on sentences unless the exercise of the discretion is such that the trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence.

29.1 From the record and the submissions, it is not clear what principle the appellant is faulting the trial Judge. The appellant alleged that the Court did not take into consideration the mitigating factors. However, in his own words, the trial Judge held that;

> "The Maximum sentence would be death on each count. I have considered the fact that the victims of the robbery were not physically injured, the goods stolen were recovered, and the fact that the accused has spent 5 years on remand. I sentence the accused to imprisonment of 20 years on count one and 20 years on count 2. I deduct the period spent on remand of 5 years and I order that he serves 15 years concurrently."

- $30.1$ In our own analysis of the above holding, we find that the trial Judge properly considered the mitigating factors. We cannot therefore fault him. - $31.$ This ground fails

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Consequently, the appeal fails. $32.]$

The decision of the lower Court is upheld. $33.]$

We so Order Dated at Kampala this. day of 2023 $10$ **CHEBORION BARISHAKI JUSTICE OF APPEAL** 15 **CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL** 20 **OSCAR JOHN KIHIKA JUSTICE OF APPEAL**

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