Kagende v Uganda (Criminal Appeal 55 of 2020) [2022] UGSC 16 (17 March 2022)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

# [CORAM: OWINY-DOLLO, CJ; ARACH-AMOKO; OPIO-AWERI; TIBATEMWA-EKIRIKUBINZA; MUGAMBA; JJSC.

### CRIMINAL APPEAL NO.55 OF 2020

#### BETWEEN

$\mathbb{C} \mathbb{P} \mathbb{C} \to \mathbb{C}$

# HASSAN KAGENDE :::::::::::::::::::::::::::::::::::

#### AND

## UGANDA:::::::::::::::::::::::::::::::::::

[Appeal from the decision of the Court of Appeal sitting at Mbale before Hon. Justices: Egonda-Ntende; Barishaki; Kibeedi, JJA in Criminal Appeal No.362 of 2017 dated 15th September 2020.]

#### **Representation:**

$\sim$

Ms. Suzan Sylvia Wakabala on State Brief represented the appellant and Mr. Sam Oola-Senior Assistant Director of Public Prosecutions represented the respondent.

The appellant attended Court via video-link from Mbale prison.

#### JU DC Nl l--l\r'i O il (-'() i.: lt't-.

On the 17th day of September 2021 , the appellant through her counsel moved this Court to be granted leave to adduce additional

10 evidence in Criminal Appeal No.55 of 2O2O. The application was brought by way of Notice of Motion under Rule 2 (2) of the Rules of this Court and was supported b-y the affidavit of the appellant-Kagende Hassan.

After considering the oral submissions of both counsel, this Court

- 15 came to the conclusion that the application did not satisfy the established principles for grant of leave to adduce additional evidence. The Court dismissed the application and promised to give its detailed reasoning in the judgment. We now proceed to do so. The grounds supporting the appiication and contained in the - 20 appellant's affidavit were as follows:

- (i) The applicant was convicted of aggravated robbery based on fraudulent evidence of a letter adduced against him in the High Court. The letter was adduced by Sergeant Ongua Lameka (PW7) who stated that the applicant had deserted the Uganda People's Defence !-orces (UPDF) and had an outstanding loan with Waz,alenr)o SACCO. - (ii) That the applicant tried to seek court's intervention to be granted more time to verify the said letter but the prayer was rejected and instead the trial Judge re-opened the case and asked both sides to adduce evidence. - (iii) That since the applicant was incarcerated, he did not have sufficient time to verify the evidence in the letter and that

information was not rvitlrin his rcach at the time of trial as well as on appeal at the Court of Appeal.

- (iv) That through her lawyer Ms. Suzan Sylvia Wakabala the applicant wrote a letter to the UPDF Wazalendo SACCO which verified that the applicant had never obtained a loan from the SACCO and that Sergea.nt Lameka did not have the authority to declare the applicant a deserter from the ArmY. - (") On premise of the above, the applicant prayed that the information contained in paragraph (iv) above should be allowed and admitted as evidence.

On the other hand, Muhumuza Edward, a Chief State Attorney in the Office of the Director of Public Prosecutions opposed the application and deponed as follows:

- (i) The applicant did not apply to the trial Court to adduce evidence in rebuttal of PW7's evidence. - (ii) That no evidence was produced before the trial Court to show that the applicant had been granted sick leave by the Uganda Peoples Defence Forces. - (ii! The applicant appealed to the Court of Appeal but did not apply for leave to adduce acl<litioreal evidence before the court. - (iv) The applicant has raised the issue of additional evidence for the first time in the application before this Court. - (") The evidence sought to be adduced by the applicant is not new evidence and he did not do due diligence to produce it at the time of the trial.

- 5 ("i) The evidence is not relevant to ttre issue before this Court and the applicant has not raised it in the Memorandum of Appeal which he filed on 16th December 202O. - (vii) The evidence is not credible and is not capable of belief. - (viii) That even if the evidence was admitted at the trial, it would not have influenced the result of the case. - (ix) The application for additional evidence has been brought after undue delay. - (x) The applicant was not incapacitated in anyway by being imprisoned as confirmed in his affidavit that he was able to write through prison authorities to obtain the information required. - (xi) No exceptional circumstances have been proved for this Court to permit the additiona.l evidence. - (xii) That it would not be in the interest of justice to allow the application to adduce additional evidence.

# Rejoinder

In rejoinder, the applicant reiterated that the offence referred to in the letter sought to be introduced as additional evidence was aggravated robbery and not any other offence' That therefore the said letter was relevant to rebut the evidence of PW7. The applicant also reiterated his prayer that the application be allowed.

# Court's analysis

The general rule is that an appellate court will not admit fresh evidence or retry the matter based on different and better evidence. 30

- s In particular, Rule 30 of the Rules of this Court bars admissibility of additional evidence on appeal. However, Rule 2(2) of the said Rules permits this Court to make such orders that may be necessary for achieving the ends of justice. The interplay of Rule 30 and Rule 2 (2) was considered by this Cotrrt in Kato Kajubi - 10 Godfrey vs. Uganda SCCA No.2O of 2Ol4 (delivered on 12th November 2O2l). This Court stated as follows: ". . . although the prouisions of Rule !10 <tJ' the Rules of this Court is couched in mand.atory terms, Rule 2 (2) of the sa'me Rules is couched in unmistakable language that it ouerrides all other prouisions of the - 1s Rules ... Rule 2 (2) therefore ouerrides the prouision of Rule 30 ... therebg rendering Rule 30 directorg onlg in purpose, notwithstanding that it is couched. in mandatory terms. The prouision of Rule 30 that ad.d.itional euidence is inadmiss ibte is intended to ensure that there is finalitg in the litigation process. Because o.f this spiit, contained in - 20 Rule 30 of the Rules, the contrary import of the prouision of Rule 2 (2), uhich allows admission of fresh euidence euen at this late stage, makes it onlg applicable in exceptional cases ..."

25 However, where new evidence is to be admitted, the Court has to satisfy itself whether the evidence sought to be adduced is relevant and helpful.

Therefore, the question for determination in the matter before Court is: tuhether the applicant satisfied Courl for it to exercise its

discretion to allow him to adduce additional euidence. 30

5 The answer to the question poised above lies in the well-established principles under which additionatr evidencr: can be admitted in this Court.

In AG vs. Paul K Ssemwogerere & 2 others (Supreme Court Constitutional Application No. O2 of 2OO4) it was held that:

An appellate court may exercise its discretion to admit additional evidence only in exceptional circumstances, which include: 10

- (i) Discouery of new and important matters of euidence which, afier the exercise of due diligence, was not within the knouledge of, or could not haue been produced at the time of the suit or petition bg, the partg seeking to adduce the additional euiden.ce ; - (ii) It must be euidence releuant to the issues; - 20

- (iii) It must be euidence which is credible in the sense that it is capable of belief; - (iu) The euidence must be stLch that, if giuen, it tuould probablg haue influence on the result of the case, although it need not be decisiue; - (u) The affidauit in support of an application to admit additional euidence should haue attached to it, proof of the euidence sought to be giuen;

# 5 (ui) The application to admit additional euidence must be brought without undue delag.

The first principle the applicant needed to satisfy is to prove that the evidence sought to be adduced is new, important and that it is evidence which, a-fter the exercise of due diligence, was not within his knowledge or could not have been produced at the time of the trial.

The applicant averred in his affidavit as u'ell as in the oral

- submissions of her counsel that since he was incarcerated, he did not have sufficient time to verify PW7's evidence which was used to convict him. Furthermore, the applicant's counsel submitted that PW7's evidence could not be rebutted at the trial because the trial Judge re-opened the case after closure of the defence arguments. As 15 - a result, PW7's evidence was admitted without giving the applicant a chance to defend himself on the said evidence. We note that the letter the applicant seeks to adduce as additional evidence was obtained while he was in incarceration. He was able to have access to a lawyer through the prison systems and have that 2Q - evidence submitted at the trial. We therefore do not find tenable the applicant's argument that because of the incarceration he did not have sufficient time to rebut PW7's evidence. 25 - Another principle the applicant needed to satisfy was that the evidence to be adduced was relevant and added value to the case 30

- 5 pending before Court. The applicalt averred in his affidavit and through the submissions that the new evidence sought to be adduced was crucial and relevant because it would go a long way in rebutting the evidence of PW7 which was the premise of convicting him. - The respondent on the other hancl contended that the purported new evidence was irrelevant to the case llending before this Court because it was not the basis fbr convicting the applicant. Counsel argued that there was other evidence adduced at trial to prove that the applicant committed the offence of aggravated robbery. Counsel 10 - further argued that the purported new evidence which showed that the applicant was not a deserter from the Army is not one of the ingredients to prove aggravated robbery. 15

Whether or not the new evidence sought to be adduced is relevant is a factual issue. The applicant deponed in his affidavit that the trial Judge re-opened the case and admitted evidence which was used to convict him and did not give him a chance to defend himself on the said evidence. This is not a correct assertion. 20

The record at page 167 indicates the directions of the trial Judge as 2s follows:

"Ihis is what I haue put on record, this case shall be mentioned in the mini ciminal sesslon of Mag 2O16 pending the production of the Defence documentation showing that the Accused (DWl) is on studg or sick leaue as alleged and pending the production bg the

Prosecution that the Acansed lefi the Armg on robbery charges. its case afl. 30 Defence shall onlu close er th.is information from both the

s Acqtsed a-nd the Prosecution is furnished to court." (Emphasis of Court)

On 2"d August 2017, PW7 , Ongua Lameck who was a corporal in the UPDF Army produced a document which he signed in 2016 indicating that the applicant had been struck off the pay roll

following his arrest by Rapid Response Unit Operatives special investigations branch. That he'uvas later handed over to the army and detained at Gadaffi Barracks in Jinja where he escaped from.

In regard to the issue whether the Accused was on sick leave, PW7 responded that he could not ascertain the information but that he

- was declared in the army system as Absent Without Leave (AWOL). On 7th August 2021 , the defence had an opportunity to respond to PW7's testimony above. The applicant himself stated that he had a book where he was receiving treatment from the general military hospital which was admitted as Exh. D1. 15 - 20 From the excerpts of the record reproduced above, it is clear that the trial Judge did not close the case before the defence brought its evidence to rebut PW7's testimony which was to the effect that the applicant was a deserter from the Army. We note that the applicant had the opportunity to produce documents to show that he was on - sick leave and not an army deserter. We therefore find the applicant's contention that he was not given an opportunity to defend himself not true. 25

30 The contents of the letter sought to be adduced as new evidence also explain that the applicant had never taken a loan facility from 5 the Wazalendo SACCO and thereafter deserted the Army. Furthermore, the letter also reveals that PW7 did not have authority to declare the applicant a deserter from the Army. The letter does not at all speak to the offence with which the applicant was convicted. After carefully reading the letter sought to be admitted as new evidence, we came to the conclusion that it was not relevant to the criminal case pending before this Court.

The other principle the applicant needed to satisfy was that the evidence must have an influence on the result of the case' The

appeal raises issues of participation, alibi and wrong identification' The letter sought to be introduced as additional evidence does not speak to any of the issues raised in the appeal. 15

The applicant also needed to satisfy that proof of the new evidence 20 sought to be adduced was attached to the aflidavit in support of the application. Court finds that the applicant satisfied this principle'

The last principle the applicant needed to satisfy was that the application to admit additional evidence must have been brought without undue delay.

- The applicant stated in paragraph 1O of his affidavit that during the hearing at the Court of Appeal, he did not have sufficient time with his counsel to enable him tender in the additiona,l evidence due to the Covid 19 situation. The applicant deponed in the subsequent - paragraphs of his affidavit that Counsel on State brief visited him in Mbale prison on 2"d August 2O2O yet the hearing of the appeal in the Court of Appeal was scheduled for the following day- 3'd August 30

5 2O2O. That because of this, counsel on State brief did not have sufficient time to lodge the application.

The respondent on the other hand contended that there had been unreasonable delay. Counsel argued that the appellant's incarceration did not in any way incapacitate him from accessing a

- lawyer to have his application lodged in time. Counsel made reference to paragraph 14 of the appellant's affidavit in which he deponed that he was able to write through prison authorities to obtain the information he considered as additional evidence. 10 - We have considered the explanation given by both parties. We do not find the applicant's incarceration as a vital circumstance which could have incapacitated him from accessing a lawyer to have the application filed. We were therefore not persuaded with the appellant's averment that his application for additional evidence was brought without unreasonable delay. 15 20

On the whole, although the new evidence was credible, it was not relevant and capable of having an impact on the appeal before Court as discussed above. It is on that premise that we declined to grant the application to adduce additional evidence.

# The merits of the Appeal.

We now turn to the merits of the appeal. The background to the appeal before this Court was as follows:

Hassan Kagende (appellant) was indicted for the offence of aggravated robbery contrary to Sections 285 and 2a6 (21 ofthe 30

- 5 Penal Code Act. It was alleged that on 2{tn .1rrrr. 2Ol3 at Muguluka Trading Centre, Kagende together with 3 other men dressed in Army uniform manned a roadblock and check point at the said Trading Centre. At about 10 p.m on the said date, Kagende stopped a travelling motor vehicle Reg No. UAK 4725 bound for Kamuli - District with occupants who were heading for a buria-l. Kagende ordered the occupants to come out of the vehicle for a search. In the process, three other men dressed in army uniform emerged from a nearby bush and one of them was armed with a gun. The occupants of the vehicle were ordered to surrender their bags, phones and 10 - money. The gang later drove off with the vehicle and left the occupants stranded on the road. Upon investigation, Kagende was arrested and found with eleven sim cards registered in different names, three mobile phones (2 Techno models and 1 Nokia model), a T-shirt and shorts resembling army uniform. It was alleged and 15 - later proved by the Prosecution that one of the mobile phones belonged to PW5 who was in the vehicle on the day of the robbery. 20

At the trial in the High Court, Kagende was found guilty and was convicted of aggravated robbery. He was sentenced to 12 years imprisonment.

- Subsequently, he appealed to the Court of Appeal against both the conviction and sentence. He argued that he was incorrectly identified and that the Prosecution evidence was full of inconsistencies. - On the basis of the doctrine of recent possession and the fact that Kagende failed to satisfactorily explain how he came into possession 30

- 5 of a mobile phone which was not his, as well as the sim cards, the Court of Appeal upheld the conviction and the sentence. Dissatisfied with the Court of Appeal decision, Kagende appealed to this Court against both conviction and sentence on the followino grounds: - 1. That the learned Justices of Appeal erred in law when they failed to evaluate the evidence on recent possession which was contradictory and unsatisfactory. - 2. That the learned Justices of Appeal erred in law when they did not evaluate the evidence of the UPDF officer which was marred with contradictions and falsehoods. - 3. That the learned Justices of Appeal erred in law when they failed to re-evaluate the evidence on alibi raised by the appellant. - 4. That the learned Justices of Appeal erred in law when they upheld an illegal sentence which did not deduct the period the appellant spent on remand.

### Prayer

The Appellant prayed that this Honourable Court quashes the conviction and sets aside the sentence. 25

# Appellant's submissions

#### Ground 1

The appellant's counsel faulted the Justices of Appeal for not properly enalyzing the principles of identification. 30

- 5 Furthermore, counsel faulted the learned Justices of Appeal for not re-evaluating the evidence on recent possession. Counsel specifically argued that the prosecution evidence on the aspect of recent possession was marred with inconsistencies. She contended that whereas PWl described the phone to be black in colour, PW5 who was the owner of the phone said it was maroon. On the other 10 - hand, DW2 who supported the appellant's case that the Techno phone belonged to the appellant described it as a Techno phone with two colours-red and black. Thus, counsel argued that the inconsistencies in the prosecution evidence regarding the - description of the said phone went to the root of the case. Counsel further argued that the Learned Justices of Appeal erred in shifting the burden to the appellant to prove that the Techno phone belonged to him. Counsel argued that it was the Prosecution instead which had to prove beyond reasonable doubt that the phone belonged to one of the victims of the robbery before that burden was 15 20

# Respondent's reply

shifted to the appellant.

The respondent counsel submitted that the trial Court as well as the Court of Appeal properly evaluated the evidence relating to the doctrine of recent possession of stolen property and came to the right conclusion. Counsel argued that whereas PW1 described the phone to be black in colour and PW5 described it as maroon, the defence evidence clarified that the Techno phone was made up of 25

two colours i.e red and black. Furthermore, counsel argued that 30

5 PWS was able to identify the phone. Thus, counsel argued that any inconsistency in the description of the phone was cured. In reply to the appellant's argument that the Court of Appeal shifted the burden of proving that the Techno phone belonged to him, counsel submitted that the Court of Appeal came to the correct

conclusion after analyzing the doctrine of recent possession alongside the evidence adduced. 10

Counsel further argued that the appellant's explanation as to how he came into possession of the different items was unsatisfactory on two premises. First, counsel contended that the appellant and DW2

- gave contradictory evidence as to the ownership of the three phones found in possession of the appellant saying that on his part the appellant claimed that only one of the phones belonged to him but DW2 testified that all the three phones belonged to the appellant. Second, is that DW2 claimed as an afterthought that she gave 15 - receipts to PW4 to prove ownership of the three phones but the Court of Appeal found that PW4 made no mention of such receipts. 20

### Court's consideration

We note that the submissions of counsel under this ground dealt with two issues: (i) principles of identification and (ii) the doctrine of recent possession. It must be noted that ground 1 of the appeal is limited to whether the Justices of Appeal properly evaluated the evidence on recent possession. The ground did not speak to the principles of identification. For this reason, we will limit our 25

discussion to what was stated in the ground of appeal to wit: That the learned Justices of Appeal erred in law uhen theg failed to 30

5 eualuate the euidence on recent possession which was contradictory and unsatisfactory.

The appellant contended that the evidence of recent possession of a Techno phone alleged to belong to one of the victims of the robbery which was a basis for his conviction was marred with

10 inconsistencies.

> The doctrine of recent possession is to the effect that if an accused is found in recent possession of stolen property, for which they are unable to give reasonable explanation, the presumption is that the person in possession is either the thief or the receiver of the stolen

15 goods, according to the circumstances of the case. Before an inference of guilt arising from the accused's recent possession of stolen property can be drawn, a Court must be satisfied of the following four elements:

i). the property was found with the suspect;

- 20 ii). the property belongs to the complainant; - iii).that the property was recently stolen from the complainant. - iv). No plausible reason has been given by the suspect for the possession of the stolen property. (See: Katumba John Bosco & Senkungu John vs. Uganda SCCA No.34 of f999). - 25 All the above elements must be proved before a conviction of guilty can be secured.

The question to be answered in the present matter is whether the above elements were proved in order to sustain a conviction against the appellant for the offence of robbery.

It is not in dispute that the appellant was found in possession of various items belonging to different people. On record is exhibit slip 30

5 P2 indicating the following items as having been recovered from the appellant after a search of his premises:

1 savings card in the name of Nambatya Judith

11 sim cards of different networks registered in the names of different people

1 T-shirt and 10

1 pair of shorts resembling army uniform

1 pair of military black shoes

3 mobile phones; 2 of the phones were Techno models and 1 Nokia model.

It is also on record that PW 1 (Kangawo Alice) identihed a black phone with a broken screen that belonged to her sister, Katono Rose (PW5). PW5 described her phone that was stolen on the day of the robbery as a Techno model, maroon in colour with a broken screen. She was able to identify the phone as hers in court.

In his defence, the appellant explained that upon his arrest, three mobile phones were taken from him. He stated that the first Techno phone belonged to him, the second one belonged to his wife and the

- Nokia belonged to his friend madam Gift. DW2,Nanrr:uganza Joweli (the appellant's sister) stated that the three phones belonged to the appellant and that she had gone to his home three (3) days after the arrest and retrieved receipts showing ownership of the said phones. She also stated that the receipts had been handed over to 25 - Superintendent Samuel Madira at Buwenge Police who never returned them. 30

5 The Court of Appeal rejected the appellant's explanation for not being plausible and held that no evidence was brought to ascertain that the said phones belonged to him.

The Court further held that DW2's explanation was intended to mislead court because the appellant had earlier stated that one of

- the phones belonged to his friend Madam Gift and the reason he had it was because they were moving together with her. The Court was of the view that the appellant could not therefore have had the receipt of the Nokia phone belonging to Madam Gift at his home as DW 2 had stated. Furthermore, court found that PW4- Samuel 10 - Madira who DW2 claimed to have handed the receipts to made no mention of the said documents in his testimony. 15

We find no fault with the Court of Appeal's linding that the explanation given by the appellant on how he came into possession 20 of the stolen Techno phone belonging to PWS was unsatisfactory. This was a concurrent finding by both the trial Court and the Court of Appeal. It is trite law that this Court will not ordinarily interfere with the concurrent findings of the lower courts except where it is shown that the two courts were grossly wrong in their finding or

2s misapplied principles of law. (See: Kazarnra Henry vs. Uganda SCCA No.17 of 2O15 and Kakooza Godfrey vs. Uganda SCCA No.3 of 2OO8)

We note that the appellant also disputed PWS's ownership of the Techno phone. The appellant argued that there was disparity in the description of the said phone by the owner (PW5) on the one hand 30 5 and PWlon the other hand, given that whereas PW1 described it as a black phone, PW5 said it was maroon. We find that this inconsistence did not go to the root of the case. DW2 in her evidence stated that the Techno phone with a broken screen had buttons of two colours i.e red and black. It is noted that maroon is a shade of red. Furthermore, when PW 5 was asked how she was able to identify her phone from the other phones, she stated that it had a broken screen and a maroon colour. 10

It is also important to note that three of the witnesses PW1, PW5 and DW2 all stated that the phone had a broken screen.

We are satisfied that the elements of possession of recently stolen property were proved. We find that the appellant's ground that the learned Justices failed to re-evaluate the evidence on recent possession does not stand.

Therefore, Ground I of this appeal fails.

### Ground 2

## Appellant's submissions

Counsel submitted that the evidence of PW7 was marred with inconsistencies and yet the trial Court went ahead to rely on his evidence. The particular inconsistencies pointed out was the letter tendered by PW7 to show that the appellant was a deserter from the

Army. Counsel argued that whereas PW4 stated that the said letter was signed by a Major General in the Army, it instead bore a 30

5 signature of a corporal- a junior officer in the Army who had no authority to author such a letter. Counsel in effect argued that the said letter was therefore false and intended to malice the appellant.

# Respondent's reply

On the other hand, counsel for the respondent submitted that

PW7's evidence was evaluated alongside that of the appellant. After evaluation, the Court of Appeal found that the appellant's evidence was discredited by PW7, a corporal in the Army whose evidence was that the appellant was declared Absent Without Leave around May 2010 and was therefore a deserter. Counsel prayed that this ground is dismissed. 10 15

# Court's consideration

We note first and foremost that this ground was not raised at the Court of Appeal. We also note that the arguments raised under this ground were identical to the grounds presented by counsel in the application for adducing additional evidence. Court canvassed this issue and came to the conclusion that the letter sought to be adduced as additional evidence did not speak to any of the ingredients of the offence with which the appellant was charged and subsequently convicted. 20 25

Ground 2 fails.

#### 5 Ground 3

## Appellant's submissions

Counsel submitted that the appellant raised an alibi to the effect that on 24th June 2Ol3- the day of the robbery, he was in Gayaza with his family. However, the Court of Appeal in rejecting the alibi

10 considered the date of 19th July 2013 which was the day of the arrest. Thus, counsel argued that the Prosecution failed to discredit the appellant's alibi by placing him at the scene of crime in Kamuli district. In support of the foregoing argument, counsel relied on the authority of Bogere Moses and anor vs. Uganda' SCCA No.l of

15 1997 where this Court held as follows:

> "what amounts to putting an accused person at the scene of cime? We think that the expression must mean proof to the required standard that the accused was at the scene of cime at the material time. To hold that such proof has been achieued, the Court must not

20 base itself on the isolated eualuation of the proseantion euidence alone, but must base itself upon the eualuation of the euidence qs a. whole."

# Respondent's reply

- 25 Counsel submitted that the Court of Appeal extensively reevaluated the evidence as a whole and came to the conclusion that the appellant's alibi was untenable for the following reasons: - (i) The appellant's evidence was full of contradictions and falsehoods. - 30 (ii) PW7's evidence showed that the appellant was a deserter from the UPDF and was declared "Absent Without Leave" on the Army records.

- 5 (iii) The conduct of the appellant in attempting to run away and hide to evade arrest on 19th July 2013. - (i") The appellant's failure to give satisfactory explanation as to how he came to be in possession of the numerous items recovered from him, one of which was the Techno mobile phone belonging to PWS.

## Court's consideration

An alibi is a defence raised to prove that at the time of commission of the crime, the suspect was somewhere else and it was impossible for him to have been at the scene of crime.

An alibi can be discredited either by:

- (i) prosecution evidence which places an accused squarely at the scene of the crime; or - (ii) prosecution evidence which directly negates or counteracts the accused's testimony that he was in a particular place other than at the scene of the crime. This can be proved by the prosecution presenting witnesses to testify that they were at the particular place where the accused says he was but he was not present in the said place. The alibi can also be discredited when witnesses who testify in support of the accused having been in a place other than the scene of the crime are rendered untruthful. [See: llazarua Henry vs. Uganda (supra)1. - In addressing the alibi, the Court of Appeal held as follows: "It is tite law that when an accused person raises a defence of alibi, it is not his dutg to proue it. It is up to the prosecution to destrog it by 30

putting the accused person at the scene of crime and thereby proving 5 that he is the one who committed the crime.

In his testimony, DW1, the appellant testified that he was arrested on 19th July 2013 at Lubanyi near the Secondary school on the way to

*Kamuli for burial of his maternal grandmother. And in his charge and* 10 caution statement he stated that he had gone to Lubanyi secondary school to watch a football match ... Pw4, Superintendent Samuel Madira, District Police Commander,

Buikwe District testified that on 19th July 2013 he got a call from

- Dison, the chairman of boda bodas and his colleagues that the 15 person they had been looking for was sited at the stage in Buwenge. They came to the boda stage to see who this person was and when the appellant saw PW4, he jumped on a boda and took off heading to Butagaya. Police followed him up to Butagaya in Lubanyi Secondary - School where he was hiding among students who were having a 20 football match on $19$ th July at 4 p.m. When the appellant saw the Police, he tried to running away and Police with the help of school children run after him until he was arrested. This was not conduct of an innocent person. - 25

$\mathbf{1}$

Having re-evaluated the evidence above, we have no reason to fault the trial Judge for her finding. The appellant was placed at the scene of the crime and we agree with the learned trial Judge's findings that the appellant participated in the commission of the offence."

(Emphasis of Court) 30

> In evaluating an alibi, recourse should be made to the whereabouts of an accused in respect of the day the offence is said to have been committed.

In the present matter, the Prosecution stated that the robbery 35 occurred on 24th June 2013 at Namwenda Village in Kamuli

5 District. The appellant on the other hand testified that on the said date he was with his wife at their home in Gayaza.

We note that the date considered by the trial Court and the Court of Appeal in relation to the alibi was 19tt' July 2Ol3- which is the date the arrest was effected as opposed to the day the offence was committed. We therefore find that the evidence which the Court of Appeal relied on to arrive at the conclusion that the appellant was

placed at the scene of crime is misdirected.

We further find that the evidence highlighted above did not in any

15 way disprove the appellant's contention/ alibi that he was in Gayaza with his wife when the offence was committed. On this premise, Ground 3 succeeds.

Nevertheless, the conviction of the appellant stands on the basis of

20 the doctrine of recent possession which we have discussed under Ground 1.

## Ground 4

## Appellant's submissions

25 Counsel faulted the Court of Appeal for upholding an illegal sentence which did not take into account the period the appellant spent on remand.

Counsel submitted that the Court of Appeal did not follow the arithmetic formula of subtracting the remand period from the final

30 sentence as enunciated in the case of Rwabugande Moses vs. Uganda SCCA No.25 of 2OL4. The appellant therefore prayed that 5 this Court sets him free or in the alternative deducts the remand period of 4 years and 1 month from the sentence.

# Respondent's reply

The respondent conceded to the arguments raised in this ground. Counsel submitted that the sentence of 12 years imprisonment

- 10 which was imposed by the trial Court and upheld by the Court of Appeal did not deduct the period of 4 years and 1 month that the appellant had spent on remand. Counsel pointed out that the trial Court imposed the sentence on29th September 2017 and was therefore bound by the Rwabugande decision which was delivered - 15 on 3'd March 2017. Counsel therefore invited this Court to evoke its powers under Section 7 of the Judicature Act and determine an appropriate sentence.

In the respondent's view, a sentence of 12 years' imprisonment was

20 deemed appropriate after deduction of the period the appellant spent on remand.

## Court's consideration

25 This Court reviewed the sentencing proceedings at the trial Court and came to the conclusion that the court followed the old position of the law by stating that it has taken into account the period the appellant has spent on remand. As rightly argued by the appellant's counsel, this Court in the case of Rwabugande (supraf departed from the old sentencing position of merely stating that the remand

period has been taken into account. The new position of the law is that a sentencing court must, in arriving at an appropriate sentence 30

s calculate the period a convict has spent on remand and subtract it from the sentence arrived at. This new position is applicable to decisions delivered after 3.d March 2Ol7 .

It is on record that the sentence which was upheld by the Court of Appeal was imposed by the trial Court on 27th September 2Ol7 (not

- 10 29th September 2Ol7 as stated by the respondent counsel). Therefore, the trial Court had to deduct the remand period of 4 years and 1 month from the sentence which it failed to do. The Court of Appeal did not address this anomaly in carrying out its duty of re-evaluation as a second appellate court. The Court of - 1s Appeat however cannot be faulted because the appellant did not raise the issue at the Court of Appeal. However, since an itlegality has been brought to this Court's attention, we shall go ahead and address the issue although it has been raised for the first time in this Court. - zo Furthermore, it is a trite principle of law that an appellate court can only interfere with the sentencing discretion of the trial court where the sentence is illegal or if the court acted on a wrong principle of law. (See: Kiwalabye Bernard vs. Uganda, SCCA No.143 of 2OO1; Livingstone Kakooza vs. Uganda, SCCA No. 17 of 1993). - zs Arising from the above, this Court evokes its powers under Sectlon 7 ofthe Judicature Act to set aside the sentence of 12 years imprisonment and resentence the appellant as follows: In light of the mitigating and aggravating factors on record, we come to the conclusion that in the circumstances of the case, a sentence - 30 of 16 years imprisonment is appropriate. However, in line with Article 23 (8) of the Constitution and the decision of

- **Rwabugande**, this Court deducts the period of 4 years and 1 month $\mathsf{S}$ the appellant spent on remand. The appellant will therefore serve a sentence of 11 years and 11 months imprisonment. The sentence will run from the time of conviction. - In the result, save for grounds 3 and 4, the appeal fails and it is 10 hereby dismissed. Consequently, the appellant's conviction is upheld.

We so order. ... day of .... March. 2022. Dated at Kampala this ...... 15 HON. JUSTICE OWINY-DOLLO, **CHIEF JUSTICE.** 20 HON. JUSTICE STELLA ARACH-AMOKO, JUSTICE OF THE SUPREME COURT. 25 HON. JUSTICE RUBBY OPIO-AWERI, JUSTICE OF THE SUPREME COURT. 30 usalenur HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT. 35 HON. JUSTICE PAUL MUGAMBA, JUSTICE OF THE SUPREME COURT. 40 Judgment desirered on behalf of the count as directed. Deputy