Byamugisha v Uganda (Criminal Appeal 75 of 2020) [2025] UGCA 37 (13 February 2025)

### THE RTPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CRIMINAL APPEAL NO.75 OF 2O2O

BYAMUGISHA YORAMU ALIAS KAZEI; zzzzz z: : : : : : : : : : : : : : : :APPELLANT VERSUS

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RTSPONDENT (Arising from the decision of the High Court at Mbarara in Criminal Court Session No. 213 of 2O13 before Hon' Judge Duncan Gaswaga delivered on l5lO2l2OL8

CORAM: RICHARD BUTEERA, DC. I EVA K. LUSWATA, JA OSCAR JOHN KIHII{A, JA

#### JUDGMENT OF COURT

- [1] The appellant was indicted and convicted of the offence of aggravated robbery contrary to section 285 and 286 (2) ofthe Pena1 Code Act and sentenced to 22 years'imprisonment' - [2] The appellant, being dissatisfied with the decision of the trial court, filed this appeal on the following (3) three grounds' - i. The learned trial Judge erred in law and fact when he held that the appellant had been properly identified in difficult circumstances thereby occasioning a miscarriage of justice

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- 2. That the learned trial Judge erred in law and fact when he convicted the appellant relying on prosecution evidence that was full of contradictions and inconsistencies and lies thereby occasioning a miscarriage of justice. - 3. That the learned trial Judge erred in law and fact when he passed a sentence of 22 years' imprisonment upon the appellant, which is illegal, harsh and excessive thereby occasioning a miscarriage of justice

#### **Background**

- The facts of the case as discerned from the record are that on $[3]$ 15/11/2012 at around 8:00pm, the complainant a one **BUKARI AIDAH** was carrying out business at her shop when the appellant who was well known to her as a maize supplier, came to her shop with two other people. The appellant requested to buy a knife which had been placed on top of the shelf and Bukari's daughter climbed to pick the knife. No sooner had the daughter removed the knife than unknown people fired gunshots inside the shop. - The assailants then chased Bukari and her daughter towards $[4]$ another room which was inside the shop. The assailants stole UGX. 15,000,000/ $=$ and airtime worth 5,000,000/ $=$ . As the assailants were leaving the shop, they shot at people indiscriminately killing three people instantly in the process and injuring several others. The witnesses identified the appellant with the aid of light from fluorescent bulbs. Bukari and the

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appetlant were acquaintances who had known each other for a long time. The was appellant was apprehended and indicted, with the charge of aggravated robbery and murder.

t5] At the trial, the learned trial Judge found that there was no case to answer in respect of the charge of murder but found the appellant guilty of aggravated robbery' He was convicted and sentenced to 22 years' imprisonment.

#### Representations

t6] At the hearing of the appeal, Ms. Kihumuro Musinguzi appeared for the appellalt while Mr. Joseph Kyomuhendo appeared for the respondent. Both parties filed written submissions which were adopted as their arguments, with leave of court.

## Consideration ofthe Appeal

- 17t We have carefully taken into consideration the appellant's appeal, the submissions of counsel, the laws and judicial precedents relied upon by Counsel. - This is a first appeal and as such, this Court is required to reappraise the evidence and make its inferences on issues of law and fact. See Rule 3O(1f of the Judicature (Court of Appeal Rules) Directions, S. 113-10. This duty was stated in Kifamunte Henry v Uganda SCCA No. 1O of L997, where the court observed that, t8l

"The ftrst appellate couti ltqs a dutg to reuieut the euidence of the case qnd to reconslder the materlals before the trial Judge. The appellote coutt must then make up lts oun

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mlnd. not dlsregardlng the Judgment appealed, from but carefullg welghtng and consld.erlng lt...o

- t9l See also; Oryem Richard v Uganda SCCA No. 22 of 2O14, The Executive Director of National Environmental Management Authorlty (NEMA| v Solid State Limited SCCA No.tS of 2O15 (unreported), Pandya v R [19571 EA g96, Ft. Narcensio Begumisa & Ors v tric Tibebaaga SCCA No.lZ of 2OO2. - [1o] we sha-ll bear the above principles in mind while resorving this appeal. Counsel for the appellant argued grounds 1 and 2 together and ground 3 separately. We sha\_ll resolve the grounds in the order that they were argued.

# GROUNDS 1&2

### Appellant's submissions

[11] Counsel for the appellant faulted the learned trial Judge for overlooking the factors for proper identification and ignoring the inconsistencies and contradictions between the testimonies of pw1 Bukari Aidah, (complainant) and pW2 Henry Wambesereza. He contended that the learned trial Judge, did not pay due attention to the inconsistencies wherein PWl stated that she saw the appellant dressed in a blue jacket, whereas pW2 stated that he saw the appellant wearing a blue overall like those of mechanics. Counsel submitted that, the appellant was mistakenly identified.

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### Respondent's submissions.

- [12] In reply, Counsel for the respondent submitted that the learned trial Judge properly evaluated the evidence. Counsel contended that even though the offence was committed at night, all the conditions that favoured proper identification were in existence. Counsel pointed to the evidence of PW1 who was familiar with the Appellant and who testified that there was sufficient light at the time the crime was committed. - [13] Counsel submitted that the appellant was positively identified by witnesses and was squarely placed at the scene of crime. He further submitted that the inconsistencies and contradictions could be explained away.

## **Consideration of grounds 1 and 2**

- [14] In these two grounds of appeal, the learned trial Judge is faulted for relying on evidence of improper identification, and also relying on contained inconsistencies and that evidence prosecution contradictions. It was the appellant's contention that the learned trial Judge overlooked the factors for proper identification and went to find that the appellant was properly identified. - [15] The principles regarding proper identification were considered in the case of Abdalla Nabulere & Ors. vs Uganda, (Cr. App. No.9 of 1978) [1978] UGCA 14 where it was held as follows:

"Where the case against an accused depends wholly or substantially on the correctness of one or more

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identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution 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. The judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.".

[16] In the instance case, PW1 Bukari Aidah, (the complainant) testified that she knew the appellant. The appellant entered her shop together with two men under the guise of buying a knife from her. She further testified that by the time they entered her shop, the lights in the shop were on and she even interacted with the appellant who was putting on a blue jacket. She also told Court that she knew the appellant before the crime was committed as a person who used to supply her with rice and maize flour.

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- [17] It appears to us that PW1 was able to clearly observe the appellant given that at the time he entered the shop, the lighting provided by the florescent bulbs therein was sufficient for PW1 to identify him. She was familiar with the appellant as someone who used to supply her with rice and matz.e. - [18] PW2, one Henry Wambesereza, testified that he was in the room which was right behind the shop during the incident' He stated that he heard gun shots coming from the shop. As he was rushing to find out what was happening, he met PWl with her daughter' PWl told him that they had been attacked by thieves. He further testified that he immediately lay down on the floor at the door connecting to the shop and he saw the appellant who was wearing <sup>a</sup>blue overallljacket picking money from the drawer and putting it inside a sack (kadeYa). - [19] He also testified that he knew the appellant as a person who used to supply them with maize flour. PW2 stated that the two florescent tubes, one from the ceiling and the other at the counter in t].e shop were switched on the entire time and he was able to properly see the assailants including the appellant' - l2olGiventhetestimoniesofPWlandPW2,weareinclinedtobelieve that the appellant was properly identified and recognized' The evidence of PW2 corroborates that of PW1 and as such points to none other than the guilt of tJle appetlant' We are of the view that thequestionofmistakenidentitydoesnotarisewhatsoever.

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Counsel for the appellant also faulted the trial Judge for relying $[21]$ on prosecution evidence that contained inconsistencies and contradictions. The law relating to inconsistencies and contradictions contained in prosecution's evidence was laid out in the case of Kato Kajubi Godfrey SCCA No. 20 of 2012, where the Supreme Court held as follows;

> "grave inconsistencies or contradictions in the evidence adduced by the prosecution are usually as $a$ general principle, resolved in favour of the accused person. Such inconsistencies or contradictions are the ones that go to the root of the case. However, minor inconsistencies or contradictions that can be explained away, and do not affect the main substance of the prosecution case should be ignored."

Further on, in the case of; Serapio Tinkasimire SCCA No.27 of $[22]$ **1989** it was held that $\mathbf{1989}$

> "It is not true that every inconsistency will result in $a$ witness testimony being rejected. It is only grave inconsistencies unless satisfactorily explained which will usually, but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies will not usually have that effect unless the court thinks they point to deliberate untruthfulness."

[23] We note that there were indeed some contradictions and inconsistencies in the evidence of PW1 and PW2. PW1 testified

Page 8 of $\frac{1}{5}$ - $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ $\frac{1}{5}$ that she saw the appellant and that he was in a blue jacket' PW2 on the other hand testified that he also saw the appellant' However, in his testimony, he stated that the appellant was wearing blue overall similar to those worn by mechanics'

- 124) The contradiction here relates to what the appellant was seen wearing on the day of the incident. In our view, the varying testimonies as to what the appellant was observed to have been wearing calnot be stated. to be major. Both witnesses observed the appellant to be wearing a blue apparel. The difference in the testimonies touches on the kind of apparel that the appellant wore. PW1 described the apparel to be a blue jacket while PW2 described it to be a blue overall. In our considered view this contradiction clearly falls within the description of minor inconsistencies that could not have brought the prosecution evidence in to question. It is our hnding therefore that the trial Judge quite rightly ignored this inconsistency. - l25l Consequently, grounds 1 and 2 fail.

## GROUND 3

## Appellant's submission

126) Counsel submitted that the learned trial Judge, did not properly take into account the mitigating factors thereby arriving at <sup>a</sup> harsh and excessive sentence. counsel further submitted that

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the appellant was a first-time offender who should have been given a shorter sentence.

l27l counsel contended that the learned tria-l Judge's focus was more on setting an example to deter others rather than considering all mitigating aspects. It was submitted that the sentence imposed was unduly harsh, and therefore, prayed for a fairer and more lenient sentence of 12 years bearing in mind the time the appellant had spent and served in lawful custody.

## Resoon dent's submission

- [28] counsel for the respondent contended that the learned triat Judge's sentence, of 22 years was neither harsh nor excessive. Counsel argued that the Judge duly considered both mitigating and aggravating factors presented in the appellant,s submissions and after a meticulous evaluation, the Judge exercised sound discretion in imposing a 22-year prison term for the appellant. - [29] Regarding the issue of sentencing uniformity, counsel argued that the imposed sentence of 22 years aligned with established sentencing guidelines, and did not surpass reasonable limits. Counsel however conceded that the triat Judge d.id not properly deduct the period spent on remand. He prayed that this court exercises its power under section 1 1 of the Judicature Act to re\_ sentence the appellant and deduct the period spent on remand.

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## Court's consideration

t3o] The principles upon which an appellate court should interfere with a sentence were considered by the Supreme Court in Kyalimpa Edward v Uganda CACA No. 1O of 1995, in which the supreme court while referring to R v Haviland (1983) 5 Cr. App. R(s) 1O9 held as follows;

> uAn appropriate sentence is a matter for the dlscretion of the sentencing Judge. fuch case presents its outn facts upon uhlch a Judge exercises his dlscretion. It is the practlce tho:t qs on appellate court, thls court utill not nonnallg lnterfere wtth the dlscretlon of the sentenclng Judge untess the sentence is lllegal or unless coutt ls satlsfied that thc sentence lmposed bg the trlal Judge utas manifestlg so excessioe ds to amount to qn lnJustice. D

[31] In sentencing the appellant the learned tria-l stated as follows;

"Ihis is a uery sad case uhere innocent and hardutorking citizens tuere traumatised and their moneg taken for no reason. Theg uill aluays face that loss uhich will neuer be ameliorated' Such offences are uery rampant in this regton where armed gangs attack and steal and at times kill ciuilians.

A loud and clear message needs to be sent out to deter other utouldbe offenders. This court will play its role in protecting the public and" their property bg keeping people like the conuict awag for a good time in pison.


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Hauing considered the mitigating factors as put across shall sentence the conuict to a peiod of twentg two (22) gears imprisonment from which a period of 5 gears, 3 montls and 7O dags spent on remand is to be deducted when calculating the d.ate upon which the sentence is to expire

Right to appeal explained."

- [32] In our view, the learned trial Judge took into consideration the mitigating and aggravating factors of the case. However, we agree with Counsel for the respondent that the learned trial judge did not deduct the period on remand. It appears to us that the trial Judge simply noted the period spent on remand and did not actually deduct the same from the sentence. - [33] Article 23(8) of the Constitution of the Republic of Uganda 1995, as amended provides as follows;

oWltcre a pe"son ls convlcted and. sentenced to a tertn of lmprlsonment Jor an offence, ang perlod he or she spends tn lauful custodg ln respect of tlu offence before tle completlon of hts or her tfial slto.ll be tq.ken lnto account ln lmposlng the term of lmprlsonment,u

[34] Principle 15 of the Sentencing Guidelines provides that.

K(1) The court sh.qll tcke lnto o,ccount ang perlod spent on " rentand 7n d.etennlnlng an approprlate sentence.

(2) The coutt shall deductthe perlod. spent on remand.from th.e sentence consld.ered approprlate afier aillactors have been tq.ken lnto q.ccount,"

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[35] In the case of; Rwabugande Moses v Uganda SCCA No.25 of 2014, court held;

3'That o sentence qtrlaed at without puttlng lnto conslderqtlon tlme spent on remqnd uas lllegalfor fallure to complg wlth mqnd.atory consf;lfl.ttTonal prouisions. Court fufther emphaslzed. that tlw conslderatlon ought to be a mathemo;tlcql deductlon considerlng the fact that the tlme spent on remdnd ls speclftcallg knoun."

- [36] In the instant case before us, the learned trial Judge did not deduct the period that the appellant had spent on remand. We therefore find the sentence illegal for violating Article 23 (8) of the Constitution of the Republic of Uganda and we set it aside for that reason. - [37] ln exercising the powers of this court under Section L 1 of the Judicature Act we hereby re-sentence the appellant. We have taken into account, the aggravating and mitigating factors that were presented to the trial court. In determining the appropriate sentence, we a-1so take not of previous decisions of this Court and the Supreme Court. - [38] In Baluku Fred v Uganda SCCA No. 1O of 2017, the Supreme Court found that the sentence of 22year's imprisonment passed by the Court ofAppeal for aggravated robbery was appropriate, and the Supreme Court confirmed it.


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In Basikule Abdu v Uganda CACA No. S16 of 2OL7, this court upheld a sentence of 20 years' imprisonment for the offence of Aggravated Robbery as appropriate. The victim was robbed of UGX 200,O0O and the Court of Appeal while upholding the sentence of 20 years' imprisonment found that it was not <sup>a</sup> harsh and excessive sentence.

- [39] In this Appeal, the appellant was charged with the offence of aggravated robbery. The maximum penalty for the offence of aggravated robbery under section 286 (2) of the Penal Code Act is death. - [aO] We therefore sentence the appellant to a term of 22 years' imprisonment from which is deducted the period of 5 years, 3 months and 10 days spent on remand. The appeltant is to serve a prison term of 16 years and 7 months commencing from the date of conviction which was 15th of Februarv 2018. - [a 1] This appeal partially succeeds.

Dated this day of 2025 ")--. )5

Hon. Justice Richard Buteera Deputy Chief Justice

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Hon Justice Eva Luswata Justice of Appeal

Brich.

Hon. Justice Oscar John Kihika Justice of Appeal

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