Kalyesubula and 3 Others v Uganda (Criminal Appeal No. 103 of 2018) [2023] UGCA 48 (21 February 2023)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL No. 103 of 2018 (CORAM: MUSOKE, BAMUGEMEREIRE & MUSOTA,JIA)

KALYESUBULA ANDREW 7.

KIZZA WALUSIMBI ALIAS CHICKEN I

NTABAZI GONZAGA APPELLANTS 3.

# MUHAMED RATIB

### VERSUS

UGANDA RESPONDENT (Appeal from tlrc decision of Bagrna J, in crinrinal Sessiort No. 61 of <sup>2017</sup> Holden at Mpigi High Court ort the 79th Septenrber 2078)

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# JUDGMENT OF THE COURT

### Background

4.

The appellants were convicted of the offence of Aggravated Robbery contrary to Section 285 (3) and 285 (2) of the Penal Code Act. It was alleged that on the 30th day of March 2016 at around 1:00 pm, the

- appellants attacked Nassozi ]oweria at her home with knives, ordered her and the house help to lay down. They then robbed her of a sum of 1,000,000/= and a 21-inch television sct. Upon trial, thc appellants were each convicted of aggravated robbery and sentenced to 16 years, 6 months and23 days' imprisonment, each. Dissatisfied, the appellants ZO - appealed against both conviction and sentence. 25

### Grounds of Appeal

1. That the learned kial ]udge erred in law and fact when he failed to properly evaluate the evidence hence arriving at awrong decision. 6.'--


2. That the learned trial judge erred in law and fact in imposing a sentence of 16 years, 6 months and 23 days' imprisonment, which is deemed illegal, manifestly harsh and excessive in the obtaining circumstances.

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### Representation

During the hearing of the appeal, the appellants were represented by Ms Sarah Awelo on State Brief while the respondent was represented by Ms Immaculate Angutoko, Chief State Attorney from the Office of

the Director of Public Prosecutions. Both counsel filed written $10$ submissions, which this Court relied upon in arriving at this judgment.

### **The Appellant's Submissions**

Regarding Ground No. 1, counsel for the appellant submitted that there were contradictions and inconsistencies in the prosecution case.

Counsel cited Candiga Swadick v Uganda CACA No. 23 of 2012 15 where court held that;

> "The law on contradictions and inconsistencies is well settled. **Major contradictions and inconsistencies will usually result in** the evidence of the witnesses being rejected unless they are satisfactorily explained away. Minor ones, on the other hand will only lead to rejection of the evidence if the point to deliberate untruthfulness on the part of the witness."

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Counsel submitted that PW1 in his evidence stated that he knew ,A.4 before this case, he was his neighbor and he had known him for 2-3 years and that he informed police that he knew A4 who was with the alleged thieves. Counsel submitted that upon cross-examination, PW1

5 stated that he did not mention that he saw ,\4. It was Counsel's argument that the inconsistencies in PW1's evidence proved that she had unsuccessfully tried pin the robbery on ,{4.

It was counsel rclied on the evidence of PW1 who tcstificd that A4 was at the home he was guarding, while PW3 said he was found in the

- garden. Counsel contended that the contradictions between the evidence of PWl and PW3 proved that they were speaking to the arrest of different people at different times, for different reasons and on different dates. He added that at the identification parade, PW1 only identified A1 but was not able to identify ,{3. 10 - Counsel also submitted that Nankya, the maid who identified A2 and A4 was not called as a witness. It was counsel's contention that the offence of theft was not proved beyond reasonable doubt. His submission was that only PW1 testified about the alleged stolen television set and the money amounting to UGX 1,000,000 (Uganda Shillings One Million). Her evidence was that there was nothing recovered from the homes of the appellants. Counsel contended that all the above contradictory evidence cast a doubt in the prosecution case and he prayed that the appeal be allowed, the conviction quashed and sentences set aside. 15 20

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**Regarding Ground No. 2,** counsel for the appellants submitted that the Trial Judge imposed a sentence of 16 years and 23 days imprisonment, which was illegal, manifestly harsh and excessive in the circumstances. He cited Abaasa Johnson v Uganda CACA No. 33 **of 2010** where it was held that:

"It is now settled law that this court will only interfere with a sentence imposed by a trial court in a situation where the sentence is either illegal, or founded upon a wrong principle of the law. It will equally interfere with sentence, where the trial court has not considered a material factor in the case, or has imposed a sentence which is harsh and manifestly excessive in the circumstance..."

It was counsel's submission that since there was no loss of life, no harm or assault on the victims, the appellants were sole breadwinners to 15 their families and first time offenders, this court should set aside the sentence of 16 years and 23 days and replace it with a sentence of $10$ years' imprisonment.

#### **The Respondent's Submissions**

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In reply to Ground No. 1, counsel for the respondent submitted that 20 the first Ground of appeal offends rule 66 (2) of the rules of this court by failing to specify exactly the points of law or fact or mixed law and fact but were rather generic. Counsel cited Sseremba Dennis v Uganda CACA No. 480 of 2017, where this Court struck out two

grounds for offending the said rule. Counsel for the respondent invited this honorable Court to apply the same principle by striking out Ground No. 1 of the appeal.

- 5 Counsel submitted that if there were some contradictions, which fact was denied, they were minor and not deliberate falsehoods, which were satisfactorily explained during re-examination. Counsel, relying on the evidence of PW1, submitted that in re-examination, she properly identified the accused persons and that although she did not know other accused persons/ she knew A4. - It was counsel's argument that the inconsistencies were satisfactorily explained and did not point to the deliberate untruthfulness of the witnesses. He added that pursuant to section 133 of the Evidence Act, no particular number of witnesses is required for proof of any fact in a case. Counsel prayed that this honorable Court finds that the 'l'rial 10 - Judge properly evaluated the evidence as a whole and uphold the conviction taking into consideration the comments made by the trial ]udge who observed the demeanor of witnesses. 15

In reply to Ground No. 2, counsel submitted that sentencing is at the discretion of a trial Judge and an appellate court will only interfere with a sentence imposed by the trial Court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in the circumstances. Counsel relied on Kiwalabye Benard v Uganda SCCA No. 143 of <sup>2001</sup> -\ @

She submitted that the offence of aggravated robbery attracts <sup>a</sup> maximum sentence of death thus there was no illegality in the sentence, the trial Judge having considered all material factors. Counsel added that the contested 15 years is way below the maximum

5 of death and falls within the sentence prescribed by law.

Counsel prayed that this court upholds the conviction and sentcnce against each appellant and dismisses this appeal.

## Consideration of the Court

We are mindful of the duty of this Court as a first appcllate Court. We are alive to the law that requires us to re-appraise the evidence and to come up with our own inferences on all issues of law and facts. (See rule 30(1)(a) of the Rules of this Court, Bogere Moses v Uganda, SCCA No. 7 of 7997 and. Kifamunte Henry v Uganda SCCA No. 10 of Lee7l. 10

- Before we resolve the appeal, we wish to note that the appellants filed separate appeals, which have been consolidated, coming up with two grounds as argued by either counsel for the appellants and respondent. We adopted the grounds in thc submissions argued by counsel. 15 - Regarding Ground No, 1, Counsel for the Appellants faulted the Trial Judge for failing to properly evaluate the evidence on record thus arriving at a wrong decision. This is a general averment that does not on its own specify the points of fact which the learned Trial ]udge did not subject to fresh scrutiny. I'he particular matters of fact are only 20

M@ J6 contained in the submissions of counsel. Rule 66 (2) of the Judicature (Court of Appeal Rules) Directions provides that;

(2) The Memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of Iaw or fact or mixed law and fact, which are alleged to have been wrongly decided..."

This ground thus offends rule 66 (2) of the Rules of this Court although

we shall consider the grounds of argument raised in the appellants' submissions. 10

In her submissions, counsel for the Appellants submitted that the evidence of PW1 had inconsistencies and that there wcrc contradictions between the evidence of PW1 and PW3.

The law on contradictions and inconsistencies was scttled in thc famous Alfred Taiar v Uganda, Criminal Appeal No|1.67/ 1969. (EACA), where Court hcld that; 15

"Grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of

<sup>a</sup>witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored." 20

What constitutes a major contradiction or inconsistency varies from whether or not the case to case. But the question always is


contradictory/ inconsistent elements are material/ essential to the determination of the case.

In the instant case, counsel for the appellants pointed to thc inconsistencies in PW1's evidence.

- 5 We carefully re-evaluated the record and noted that although PW1 knew A4 before the trial and was his neighbor and managed to identify him. In cross examination, she stated that "I made a statement on the day one of the incident. In this statement, I did not mention ,4'4. Even in the additional statement I made I did not mention that I saw A4." - We note that during re-examination, PW1 stated that "I properly identified the four accused persons. I knew A4 before the case. I did not know the other accused persons. (I saw them sic).. at police while making the statements I mentioned the names of A4 but the names are not in the statements ... " 10 - In our obscrvation, and as submitted by counsel for the respondcnt, such inconsistencies were minor and were clarified during reexamination of PW1. 15

Further, PWl stated that A4 was arrested from the home where he was guarding while PW3 stated that ,A4 was arrested in a nearby garden

near a certain home while standing. We find the discrepancy regarding the place of arrest too minor to warrant the rejection of the evidence of the witnesscs. 20

Counsel for the appellants also submitted that only one witness, PW-l testified about the stolen items and no othcr witness was called to testify about the theft.

With all due respect we find counscl's argument unfoundcd, since the law does not require any particular number of witnesses to prove any fact. Section 133 of the Evidence Act provides that;

"Subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for the proof of any fact."

I{aving considercd all the above argumcnts, wc find that thc lcarned trial Judge properly evaluated the evidence on record and arrived at the right decision. We therefore find no merit in Ground No. 1 of the appeal and in any case, we had already found that this ground offends rule 66 (2) of the Judicature (Court of Appeal rules) Directions although we considered the submissions of counsel. Ground No. 1 of the appeal therefore fails. 10 l5

Regarding Ground No. 2, counsel for the appellants suggested that the sentence of '16 years,6 months and 23 days imprisonment meted out to the appellants was illegal, harsh and exccssivc and prayed that

this Honorable Court replaces it with a sentence of 10 years imprisonment. 20

We note that although this Court has the powcrs to interferc with a sentence imposed by the lower Court, the instances in which it may o.-'> so are limitcd. cl

The limitations have been discussed in a number of authorities of the Supreme Court and this Court. 'I'hey were well set out by the SuPreme Court in Kiwalabye Bernard v Uganda SCCA No. 743 of 2001 as follows;

5 "The appellate Court is not to interfere with sentence imposed by <sup>a</sup> trial court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to <sup>a</sup> miscarriage of iustice or where a trial court ignore to consider an important matter or circumstances which ought to be considered when passing the sentence or where the sentence imposed is wrong in principle." 10

An appropriate sentence is a matter for the discretion of the scntencing Judge. Each case presents its own facts in which a Judge exercises his

discretion. 15

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## In Aharikundira v Uganda SCCA No. 27 of 2015, it was held tha|

"It is the duty of this court while dealing with appcals regarding sentencing to ensure consistency with cascs that have similar facts. Consistency is a vital principle of a sentencing regime. It is deeply rooted in the rule of law and requires that laws be applied with equality and without unjustifiable differentiation."

We have taken the above stated principles in consideration. In the rV . J ' instant appeal, the appellants were convictcd of aggravated robbe

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and sentenced to 16 years,6 months and 23 days imprisonment after deducting the period spent on remand.

In Bogere Asiimwe Moses & Senyonga Sunday v Uganda SCCA No. 39 of. 2076, the Supreme Court upheld a sentence of 20 years imprisonment imposed for aggravated robbery where the appellants were 22 and 23 years old respectively and there was no violence or death during the robbery.

In Ojangole Peter v Uganda SCCA No. 34 of 20\7, the Supremc Court confirmed a sentence of 32 years for the offence of aggravated robbery.

In Abelle Asuman v Uganda SCCA No. 66 of 20L6, the appellant was convicted of aggravated robbery and sentenced to lifc imprisonment. On appeal, to the Court of Appeal, the sentence was of life imprisonment was set aside and replaced with 18 years imprisonment. On further appeal to the Supreme Court, the sentence of 18 years imprisonment was upheld. 10 15

In Olupot Sharif & Anor v Uganda CACA No. 0730 of 2014, the appellant was convicted of the offence of aggravated robbery and sentenced to 40 years imprisonment. On appeal, this court reduced the sentence to 32 years imprisonment.

Further in Rutabingwa James v Uganda CACA No. 57 of 2011, this court confirmed a sentence of 18 years imprisonment for aggravgll 20 robberv. .b.-

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In Saidi Kabanda v Uganda CACA No. 472 of 2016, Court maintained a sentence of 22 years imprisonment for the offence of aggravated robbery.

- We have not found good reason to interfere with the sentence meted out by the trial Judge since he considered both the mitigating and $\mathsf{S}$ aggravating circumstances and passing sentence. This was an armed robbery. It carries a maximum sentence of death. In the premises, the sentence of 16 years, 6 months and 23 days' imprisonment was neither illegal, harsh nor manifestly excessive. Ground No. 2 has no merit and - is disallowed. $10$

This appeal is dismissed and the conviction and sentence of the trial Court are upheld.

Dated at Kampala this $\frac{2}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

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**Hon. Lady Justice Elizabeth Musoke Justice of Appeal**

Hon. Lady Justice Catherine Bamugemereire **Justice of Appeal**

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**Hon. Mr. Justice Stephen Musota Justice of Appeal**