Kaggwa alias Gadaffi v Uganda (Criminal Appeal No. 97 of 2014) [2021] UGCA 185 (22 December 2021)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT JINJA

(Coram: Elizabeth Musoke, Cheborion Barishaki & Hellen Obura, JJA)

### CRIMINAL APPEAL NO. 097 OF 2014

**.....................................** KAGGWA SADIQ Alias GADAFFI:::::::::::::::::::::::: $10$

#### **VERSUS**

**:::::::::::::::RESPONDENT** UGANDA::::::::::::::::::::: 15

(Appeal from the decision of Hon. Justice Lameck N. Mukasa holden at High Court at Mukono in Criminal Session Case No.0144 of 2012 delivered on 31/03/2014)

## JUDGMENT OF THE COURT

#### 20

### Introduction

This appeal is against the decision of the High Court at Mukono (Mukasa, J) in which the appellant was indicted, tried and convicted of the offence of aggravated robbery contrary to section 285 & 286(2) of the Penal Code Act and he was subsequently sentenced to 30 years

imprisonment. $25$

## **Background to the Appeal**

The facts as we have ascertained from the court record are that on 3/11/2011 at around 6:00am while the victim was on her way to work, she was attacked and hit on the head and she became unconscious until around 8:00pm when she found herself in the Intensive Care Unit (ICU) of Mulago hospital. At the time of the attack she was unable to identify her attackers who also robbed her bag containing a mobile phone, 2 Stanbic bank ATM cards, a voter's card, office keys, a tin of medicine among others. Investigations were carried out by the police and the appellant was arrested and indicted for the offence of aggravated robbery.

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- Subsequently, he was tried, convicted and sentenced to 30 years imprisonment. Being $\mathsf{S}$ dissatisfied with the decision of the trial court, he has appealed to this Court on 2 grounds namely that: - 1. "The learned trial Judge erred in law and fact when he held that the appellant participated in the robbery without ample evidence in proof of that ingredient. - 10 - 2. The learned trial Judge erred in law and fact when he imposed a harsh and excessive sentence against the appellant."

#### **Representations**

At the hearing of the appeal Mr. John Isabirye represented the appellant on State Brief while Ms. Peace Biira Chief State Attorney from the Office of Director Public Prosecutions represented the respondent. The appellant was not physically present in court but he was 15 facilitated to attend court from prison via zoom technology due to the challenge of the Covid 19 pandemic and the observation of the Standard Operating Procedures (SOPs). With leave of court, both parties filed written submissions which have been considered by this Court.

# **Case for the Appellant**

Counsel submitted on ground 1 that the prosecution evidence pointing to the guilt of the 20 appellant was marred with great inconsistencies. He referred to the evidence of PW2 which he said contradicted that of PW3 and faulted the learned trial Judge for relying on it. He implored this Court not to rely on the evidence of PW2 which was full of contradictions. Counsel also added that the appellant denied being in possession of the victim's ATM cards and that the searching officer did not provide a search report containing all the property 25 recovered as required by law. He argued that the prosecution did not prove the doctrine of recent possession beyond reasonable doubt and instead relied on circumstantial evidence which was full of inconsistencies to prove participation of the appellant. Counsel invited this Court to exercise its power under rule 30 (1) of the Judicature (Court of Appeal Rules) Directions and quash the conviction by the trial Court. 30

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On ground 2, counsel submitted that during sentencing the learned trial Judge failed to $\mathsf{S}$ consider the appellant's mitigating factors namely that; the appellant was a first time offender and the sole bread winner supporting his grandmother and his child of 5 years. He argued that had these mitigating factors been considered, the learned trial Judge would not have arrived at a harsh and excessive sentence of 30 years. Counsel prayed that this Court finds the sentence harsh and excessive and sets it aside. 10

#### **Case for the Respondent**

Counsel submitted that it is neither a legal requirement, nor practice that every evidence of recent possession requires corroboration. Such evidence can be relied upon solely provided that Court finds it to be truthful, credible and reliable. She further submitted that evidence of

recent possession shifts the evidential burden to the accused to account for how a stolen 15 property ended up in his possession.

Counsel argued that from the evidence on record, PW2 testified that the appellant was arrested on 5<sup>th</sup> November, 2011 two days after the robbery and upon the arresting officer conducting a body search, 2 ATM cards in the names of the victim were recovered from the appellant's pockets. Upon inquiring from the appellant to whom they belonged, he said that

they were for his girlfriend.

She submitted that the learned trial Judge rightly came to a correct finding having cautioned himself while relying on the doctrine of recent possession, that the appellant was culpable in the commission of the offence. She added that from his finding, it is clear that the trial Court

was alive to the legal principles governing recent possession which he rightly applied to the $25$ instant case.

Further that, the learned trial Judge was alive to the contradictions raised and he evaluated them and rightly found that there was no evidence that was concocted against the appellant.

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She prayed that this Court finds that the appellant's participation was proved by the $\mathsf{S}$ prosecution beyond reasonable doubt.

On ground 2, counsel submitted that the sentence of 30 years is neither harsh nor excessive in the circumstances since the maximum sentence of the offence of aggravated robbery is death. She added that there is no reason for this Court to interfere with the sentencing discretion of the learned trial Judge because he considered both the aggravating and mitigating factors as well as the period of $2\frac{1}{2}$ years the appellant had spent on remand before sentencing the appellant to 30 years imprisonment.

In conclusion, counsel prayed that the entire appeal be dismissed for lack of merit and this Court upholds both the conviction and sentence of the lower court.

#### **Court's consideration** 15

We are aware that as the first appellate Court, under *Rule 30* of the *Judicature (Court of*) **Appeal Rules)** Directions, we have a duty to re-appraise the evidence and draw inferences of fact. Also see: Baguma Fred vs Uganda, SCCA No. 7 of 2004.

We shall therefore proceed to determine the two grounds of appeal.

- On ground 1, the appellant faults the learned trial Judge for holding that he participated in the $20$ robbery without ample evidence in proof of that ingredient. Counsel for the appellant submitted that proof of participation of the appellant in the offence, depended on circumstantial evidence and the doctrine of recent possession which were not proved beyond reasonable doubt by the prosecution due to inconsistencies in their case. - The law on circumstantial evidence as stated in the case of **Simon Musoke vs R (1958)** 25 **E. A.** 715 at page 718H, is that in a case depending exclusively upon circumstantial evidence, the Court must, before deciding upon conviction, find that the inculpatory facts

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are incompatible with the innocence of the accused, and incapable of explanation upon $\mathsf{S}$ any other reasonable hypothesis than that of guilt.

Before a court can apply the doctrine of recent possession, it should take into account the circumstances of the case. In applying the principles regarding the doctrine of recent possession, the court in **DPP vs Neiser (1958) 3 WLR 757**, held as follows;

"The doctrine of recent possession is merely an application of the ordinary rule relating to 10 circumstantial evidence that the inculpatory facts against an accused person must be incompatible with the innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt according to particular circumstances. It is open to a court to hold that unexplained possession of recently stolen articles is incompatible with innocence. But guilt in this context may be guilt either of stealing or of receiving articles in question. 15 Everything must depend on the circumstances of each case. Factors such as the nature of the property stolen whether it be of a kind that readily passes from hand to hand, and the trade or occupation to which the accused person belongs can all be taken into account. A shopkeeper dealing in secondhand goods would naturally suggest receiving rather than stealing." 20

In the instant appeal, PW1 Yeko Christine, testified that on 3/11/2011 at 6:00 am as she was on her way to work, she was hit by an object and she became unconscious until 8:00am when she woke up and found herself in the ICU of Mulago Hospital. She had sustained an injury on top of the head, around her lower lip and cut open lip between the nose and lip. She also lost a tooth. On 5/11/2011 an officer called Okidi (PW3) visited her while in hospital and took her statement in which she informed him that on the fateful morning she had a black bag which contained 2 Stanbic Bank ATM cards, a mobile phone, a voter's card and office keys. The Police Officer informed her that the bag had been recovered. She saw the bag again in January 2012 at Mukono Police Station and it contained all the aforementioned items apart

$\mathcal{L}_{\mathcal{A}}$

from the 2 ATM Cards and the mobile phone. In cross examination, PW1 stated that she did $\mathsf{S}$ not see the person who hit her but she only heard a bang on her head.

PW2 Nasimolo Solomon, the scene of Crime Officer testified that on 5/11/2011 there was a shop breaking at Mukono Taxi Park and he was directed by the OC CID, Mugumya to visit the shop. At the crime scene he found there people who had arrested 4 suspects who had been arrested on suspicion of breaking into a shop and among them was the appellant. He

$10$ took finger prints at the scene and also participated in searching the suspects and the items which were recovered from them were exhibited. He searched the appellant and recovered 2 ATM cards of Stanbic Bank in his right hand side pocket of the trouser. Their serial numbers were No. 7375 and 8483 and the cards were in the names of Yeko Christine Sebakali. When he questioned the appellant about the ATM cards, he told him that they were for his girlfriend 15 but he did not mention his girlfriend's name. PW2 then handed over the ATM Cards to OC CID, Mr. Mugume who in turn gave them to D/Sgt. Okidi (PW3). In cross examination, PW2 stated that he found when the appellant had been arrested and he re-arrested him. Further, that Tagoya was not present when the appellant was re-arrested. He also added that there were no people arrested in connection with this offence. 20

PW3 No. 31789, D/Sgt. Okidi Ray Bob testified that he visited the victim in Mulago Hospital on 5/11/2011 in response to a police file he had received on 4/11/2011 for aggravated robbery. The victim told him that she was attacked by an unknown person and a bag containing 2 Stanbic Bank ATM cards, a mobile phone, a voter's card, office keys, a tin of medicine and other documents was stolen from her. When he returned from the hospital, 25 PW2 came and told him that there were some suspects that had been arrested and the appellant who was among them was found in custody of 2 ATM Cards which he claimed belonged to his girlfriend. PW2 also told him that the 2 ATM Cards had already been handed over to the OC CID to whom they both went and the 2 ATM cards were given to PW3 to exhibit. The cards were Stanbic Bank cards and they were in the names of Yeko Christine 30

and Yeko Christine Sabakali. PW3 also stated that when he talked to the appellant he denied $\mathsf{S}$ knowledge of the cards.

PW3 also stated that according to the minutes he got on the file on 3/11/2011, a bag had been brought to Mukono Police Counter and was being kept by D/Inspector Byamugisha who told him that when they checked they found it contained bags, voter's cards belonging to Yeko Christine, a tin of medicine and documents. However, there was no phone. After the victim was discharged from the hospital he invited her to the police station and she identified the items in the bag. The OC CID authorized him to give her anything she wanted from the bag and he handed over the office keys to her. He was transferred in 2012 and he left the bag in the station. He added that there was nobody who identified the appellant at the scene of crime and that it is the ATM Cards which connected him to the offence.

In cross examination, he stated that it is only the appellant who was arrested and charged in connection with this offence but the other suspects had no implicating evidence and they were not charged. He also added that he did not participate in the arrest, but he found the appellant in custody with other suspects. He clarified that the appellant was arrested with other suspects but the evidence in connection with this offence only centered on him.

In his defence, the appellant denied committing the offence. He testified that he was arrested between 9:00am and 10:00am from a hotel where he had gone to get something to eat on suspicion of him being amongst those who had broken into a shop. He added that he was taken to Mukono Police Station together with 3 others and that nothing was recovered from

them. He denied being searched and found in possession of 2 ATM cards. Further that, he 25 recorded a statement in connection to the allegation of breaking in the shop and stealing things like a generator and hovers. He also claimed that after spending about 1 1/2 weeks in the cells, a police officer took him to his office where he was told to sign on a statement concerning an attack on the victim with an iron bar at Butebbe but he refused to do so. In

$7$

cross examination he stated that he refused to sign on that statement because he had not $\mathsf{S}$ committed the offence.

The learned trial Judge evaluated the evidence on court record alongside the law regarding the doctrine of recent possession and circumstantial evidence and he concluded as follows:

"The prosecution sought to rely on the doctrine of recent possession of stolen property....

In the instant case, the theft of the ATM cards had taken place on 3<sup>rd</sup> November 2011. PW2's 10 testimony is that he recovered the ATM cards on searching the accused on 5<sup>th</sup> November 2011. Clearly the doctrine is applicable in the circumstances of this case. However, the doctrine is applicable in line with the rule relating to circumstantial evidence that inculpatory facts against an accused person must be incompatible with innocence and incapable of any other reasonable hypothesis than that of guilt. Further, the guilt founded on the doctrine of recent possession may be guilt of either stealing or receiving the suspect in question....

> ... In his evidence PW2 stated that he did not know the accused or the complainant before his arrest and search of the accused. That when he asked the accused about the ATM cards he told him that they belonged to his girlfriend. Yeko identified the ATM cards as hers and she testified that she did not know the accused. So she could not have been the accused's girlfriend. I therefore, find no reason for PW2 to have concocted evidence against the accused person."

The Supreme Court in its decision in *Mbazira Siraji & another vs Uganda (supra)* held that the starting point for the application of the doctrine of recent possession, is proof of two basic facts beyond reasonable doubt; namely, that the goods in question were found in possession of the accused and that they had been recently stolen.

We note from the court record that the victim was robbed on 3<sup>rd</sup> November 2011 and the appellant was arrested on 5<sup>th</sup> November, 2011 two days after the incident. The appellant was found in possession of the victim's Stanbic Bank ATM cards at the time of his arrest and he did not give any credible explanation why he had them. When PW2 questioned the appellant, he told him that the cards belonged to his girlfriend. In his defence, the appellant denied being

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found in possession of the cards at the time of his arrest and also denied telling PW2 that the $\mathsf{S}$ cards belonged to his girlfriend. It should be noted that PW2 had arrested the appellant in connection to another offence of breaking into a shop and he was not at the time aware of another case of robbery involving the victim, whose ATM cards were found in possession of the appellant. On the basis of this evidence, we find the appellant's defence not convincing. We therefore agree with the conclusion of the learned trial Judge that PW2 had no reason to

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concoct evidence against the appellant.

In these circumstances, the inference that the appellant is the person who robbed the victim of her property on the fateful day is irresistible because it cannot have been a mere coincidence that the appellant was found in possession of the victim's stolen property two days after she was robbed. In addition, the evidence on record does not reveal any other coexisting circumstances which would weaken or destroy this inference pointing to the appellant's guilt. In the premises, we cannot fault the learned trial Judge for finding that the appellant participated in the robbery of the victim.

Counsel for the appellant also submitted that the evidence of PW2 on which the learned trial Judge relied to convict the appellant was full of contradictions. The law on inconsistencies 20 and contradictions have been stated in numerous authorities. The Supreme Court in Bumbakali Lutwama & 4 ors vs Uganda, SCCA No. 38 of 1989 (unreported) citing with approval the decision of the East African Court of Appeal Alfred Tajar vs Uganda, Criminal Appeal No. 167 of 1969 (unreported) held, inter-alia; that inconsistencies and contradictions in the prosecution case may be ignored if they are minor or do not point to deliberate 25 untruthfulness on the part of the prosecution witnesses.

We note from the court record on page 8 of the judgment that the learned trial Judge dealt with the issue on the contradictions in the testimony of PW2 when he found as follows;

".... I have studied the evidence of both PW2 and PW3 and found that PW2 did not tell any lie about the arrest in this offence. PW2 was neither the arresting officer, statement sending officer nor investigating officer in this case. PW2 re-arrested the accused person and three others in connection with another offence of shop breaking. It was on a routine search of suspects that he found ATM cards on the accused which connected him to this case. So he could not have been aware who else was arrested in connection with the instant case? Counsel failed to point out any major contradiction if any, in PW2's testimony. I therefore, find no reason not to believe his evidence."

We note that much as PW2 testified that there were no people arrested in connection with this offence which contradicted the testimony of PW3 who stated that there were others who were arrested but had no implicating evidence and were not charged, it is our finding that this contradiction does not point to deliberate untruthfulness and as a result, it does not prejudice the appellant's case. Our finding is premised on two reasons. Firstly, there were other pieces of evidence on court record which pointed irresistibly to the appellant's guilt as we have highlighted above. Secondly, PW2 was not the arresting or investigating officer in the instant

case and therefore there was no way he could have known who else was arrested in connection with this case, as was rightly found by the learned trial Judge. In the result, we find the contradiction in PW2's testimony minor and we cannot fault the learned trial Judge for ignoring it. On the whole, we find no merit in ground 1 and it therefore fails.

In regard to ground 2, the appellant faults the learned trial Judge for imposing a harsh and excessive sentence. It is now settled that this Court can interfere with the sentence imposed

- by the lower court only where it is manifestly excessive or so low as to amount to a miscarriage 25 of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle. See: Kiwalabye Bernard vs Uganda, SCCA No.143 of 2001 (unreported). - We note from the court record that the learned trial Judge took into consideration both the 30 aggravating and mitigating factors and the period the appellant had spent on remand before

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- sentencing the appellant to 30 years imprisonment. However, counsel for the appellant $\mathsf{S}$ argued that the learned trial Judge did not consider the appellant's mitigating factors. We shall ourselves consider both the aggravating and mitigating factors that were presented at trial as well as the range of sentences in similar offences in order to determine whether the learned trial Judge imposed an appropriate sentence in the circumstances. - In mitigation of sentence, it was presented that; the appellant was a first offender, he was 10 remorseful for committing the offence, he had been on remand for a period of $2\frac{1}{2}$ years, he is a young man aged 27 years who is capable of reforming, he had a child of 5 years and a grandmother who was depending on him for support. A sentence of 5 years imprisonment was prayed for. On the aggravating side, it was presented that the offence of aggravated robbery carries maximum sentence of death, the victim suffered grievous harm, she lost her $15$ sense of smell as a result of the injuries suffered and she incurred a cost of about Ushs.

Having considered the aggravating and mitigating factors presented at trial, we shall also be guided by the range of sentences this Court has imposed in cases of similar offences with more or less similar circumstances in the spirit of maintaining consistency in sentencing.

$1,500,000/$ = on treatment. A sentence of 35 years imprisonment was prayed for.

$20$

In Saavu Sedu Tonny vs Uganda, Court of Appeal Criminal Appeal No. 0600 of 2014, the appellant robbed the victim and his passengers at gun point and thereafter shot the victim on the forehead. He was arrested, tried and convicted of the offence of aggravated robbery and sentenced to death. However, following the decision in AG vs Susan Kigula & 417

others, Supreme Court Constitutional Appeal No. 03 of 2006, the appellant was re-25 sentenced to 35 year imprisonment. On appeal, this Court reduced the sentence to 17 years and 1 month imprisonment.

In Ogwal Nelson & 4ors vs Uganda, Court of Appeal Criminal Appeal No. 606 of 2015, the appellants hit the victim with a hammer on the head, shoulder and mouth and thereafter

robbed him of his motorcycle. They were arrested, tried and convicted of the offence of $\mathsf{S}$ aggravated robbery. The 1<sup>st</sup> appellant was sentenced to 35 years, the 2<sup>nd</sup> to 25 years, the 3<sup>rd</sup> to 30 years and the 4<sup>th</sup> & 5<sup>th</sup> to imprisonment for life. On appeal to this Court, each of their sentences were reduced to 17 years and 6 months.

Similarly, in Adama Jino vs Uganda, CACA No. 50 of 2006, the appellant was convicted of the offence of aggravated robbery and sentenced to death. This Court, in reviewing the sentence set aside the death sentence and substituted it with 15 years imprisonment.

We therefore find that the sentence of 30 years imprisonment which was imposed on the appellant was harsh and excessive as it was out of range especially in view of the fact that the victim in this case survived the injury she suffered. Having so found, we set it aside and invoke section 11 of the Judicature Act which gives this Court the authority, powers and 15 jurisdiction as that of a trial court to impose an appropriate sentence of its own. We thus sentence the appellant to 21 years imprisonment which in our view is appropriate in the circumstances of this case.

However, we note that the appellant had been in pre-trial custody for a period of 2 years, 4 months and 26 days. Pursuant to Article 23 (8) of the Constitution, we deduct that period from 20 the 21 years and sentence the appellant to imprisonment for 18 years, 7 months and 5 days imprisonment from the date of conviction, that is, $31/03/2014$ .

In conclusion, the appeal against conviction is dismissed and the conviction is upheld. The appeal against sentence is allowed in the above stated terms.

We so order. $25$

$10$

Dated at Jinja this 22<sup>19</sup> day of Dec 2021

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Hon. Lady Justice Elizabeth Musoke

## **JUSTICE OF APPEAL**

Hon. Mr. Justice Cheborion Barishaki

**JUSTICE OF APPEAL**

Hon. Lady Justice Hellen Obura

## **JUSTICE OF APPEAL**

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