Kerekona Stephen v Uganda [2000] UGSC 6 (14 August 2000)

## **VLWENCO** IN THE SUPREME COURT OF UGANDA **KEDUBLIC OF UGANDA**

### $KV NKEIHV W B' V'$ 11. S. C) **WAMBUZI, CJ; TSEKOOKO, KAROKORA, MULENGA AND** $(COBYW:$

#### 6661 CKIWINVT VDDEVT NO 70 OF

# <table> OCVADA BESPONDENT *ANV* <table> KEHEKONV ZLEDHEN::::::::::::::::::::::::::::::::::: **BELMEEN**

in Court of Appeal Criminal Appeal No.10 of 1998] (MANYINDO, DCJ, OKELLO AND ENGWAU, JJ. A.) Appeal from the decision of the Court of Appeal at Kampala

## **INDEWEAL OF THE COURT:**

this court against the decision of the Court of Appeal. capital robbery, unsuccessfully appealed to the Court of Appeal. He has now appealed to The appellant, Karekona Stephen, who was tried and convicted and sentenced to death for

Banard. said robbery the appellant used a deadly weapon, to wit a panga, on the said Mazima and a weighing scale and at or immediately before or immediately after the time of the Bushenyi District, the appellant and Mwebaze robbed Mazima Banard of shs.200,000/= The indictment alleged that on the 3<sup>rd</sup> of June, 1994, at Bubandabunzi village, in

It was the prosecution case that on the night of 3/6/1994, at about

enabled Mazima to identify the appellant as one of the intruders who was armed with a and the one who was armed with a panga reached for Mazima. The light from the lamp out of bed. There was a lighted hurricane lamp in the house. Two men entered the house was then hit hard with a stone. The door gave way and broke into pieces. Mazima got shop through a ventilation of a window of the house. The front wooden door of the shop the robbery, were sleeping in their shop when a torch light was shone into the house cum 11.00 a.m., Mazima Banard (PW1) and his wife B. Kyogabirwe (PW2), both victims of

found Mazima still holding the appellant. been attracted to the scene by the earlier loud bang on the door. He reached the scene and minutes. Nikyanira, (PW3), who was the then LC1 Secretary for defence had meantime continued to struggle until they ended up in the sitting room. The struggle lasted 30 The appellant used the panga to inflict wounds on Mazima. the panga. OW1 SAT sitting room and disappeared. But Mazima held the appellant as they both struggled for Mwebaze. Mazima grabbed the appellant and held him. Mwebaze retreated into the further to identify the appellant. Mazima also recognised the second intruder to be which the appellant had dropped onto the ground and light from it also, helped Mazima panga and a torch. Mazima had known the appellant for four years. A lighted torch,

side ribs, at the back and on the right hand little finger. arresting him and tying him up. The appellant had by then cut Mazima in the right hand area village LC. I Chairman. They both found the appellant at the scene and helped in Nikyanira was followed to the scene by Pastor Bishanga and Leo Bitakwata (PW4), the

deceased) died on 16/4/1995 before the trial of the case. subsequently charged with capital robbery. Mwebaze (hereinafter referred to as the headquarters from where the two robbers were taken to Bushenyi Police Station and were They subsequently took Mwebaze and the appellant to Kankanzu Sub-county Mwebaze's home, found Mwebaze there and arrested him and brought him to the scene. Mwebaze and that the latter had fled from the scene. N ikyanira and Bitakwata went to Nikyanira and Bitakwata that he had been attacked and robbed by the appellant and discovered that shs.200,000/= and a weighing scale had been stolen. Maxima informed After the appellant was tied up, Mazima and the rest of the people checked the shop and

that the following morning at 5.00a.m. he was arrested from his home by Bitakwata the company of the deceased. He claimed that he knew all these people. He contended 6.00 p.m. to 5.00 a.m. and that he never attacked nor robbed Mazima whether alone or in night of the robbery he was at his home where he and his wife and children slept from At the trial the appellant denied the offence. He raised an alibi to the effect that on the

Mazima and others had told lies against the appellant. The appellant had outbid Regina and purchased it. He claimed that because of that Mazima. Regina Rwewaso had earlier competed for the purchase of certain piece of land. lies to the court because of a grudge between him and Mrs Regina Rwewaso, an aunt of headquarters. He testified that all the prosecution witnesses, whom he knew well, told the robbery. Despite that, these people beat him up before taking him to the sub-country those other people searched his home but did not find anything incriminating him with (PW4), Mazima (PW1) and other people and that upon his arrest Mazima, Bitakwata and

appellant was discharged. in custody from 1987 till March 1994 when the case was dismissed whereupon the of some offence of robbery for which the appellant was arrested, charged and remanded of the purchase of the land, Mrs Regina Rwewaso, had previously accused the appellant At the trial the appellant's Counsel improperly dragged into evidence the fact that because

argued in this court. because that ground which was unsuccessfully argued in the court below has been also the prosecution and the defence thereby coming to a wrong decision. We allude to this Appeal complained about the failure by the trial judge to evaluate the evidence of both during the hearing he abandoned grounds one and five. The first ground in the Court of The appealant appealed to the Court of Appeal and listed five grounds of appeal. But

together. These two grounds which are related were formulated as follows: The appeal before us is based on five grounds: We will first consider grounds I and 2

of the appellant. ahead to use the said trial judge's record of proceedings to confirm the conviction isolation before turning to consider the appellant's defence, nevertheless went judge was "fundamentally wrong" when he accepted the prosecution case in The Learned Justices of Appeal erred in law when, having found that the trial $\cdot$ I

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and prejudicial and may have clouded his judgement, nevertheless went ahead to judge's remarks concerning the previous charges against the appellant were bad The Learned Justices of Appeal erred in law when, having found that the trial

confirm the appellant's conviction rather than order an acquittal or a retrial.

arguments. Annbamunthodo Vs Oilfields Workers Trade Union (1961) AC945 to support his Republic (1965) EA 555, General Medical Council Vs Spackman (1943) AC627 and justice were violated by the two courts. Counsel cited Okethi Okale and others Vs conviction of the appellant. He contended that in this case the principles of natural Appeal should not have relied on any evidence found on the record to uphold the in the judgment of the trial judge vitiated the whole record in such a way that the Court of should have acquitted the appellant. Learned counsel appears to contend that any defect was erroneous, the same court of Appeal should have simply set aside the conviction and argued that since the Court of Appeal held that the approach adopted by the trial judge trial judge in order to uphold the conviction and sentence of death. Learned counsel itself erred in acting on the whole record of proceedings including the judgement of the believed the prosecution case before he considered the defence case, the Court of Appeal the trial judge's approach in evaluating the evidence was wrong in that the judge first made a novel proposition. He contended that because the Court of Appeal had found that Submitting on the first and second grounds, Mr. Tusasirwe, counsel for the appellant,

that the evidence implicated the appellant in the commission of the robbery. əys Nikyanira (PW2), Nikyanira (PW3) and Leo Bitakwata (Pw4), believed it and found the Court of Appeal itself re-evaluated the evidence of Mazima (PWI), his wife even through the Court of Appeal found that the trial judge had erred in the two instances, appellant the previous criminal charges. Learned Principal State Attorney contended that She further conceded that the trial judge erred when he took into account against the erred in that he first accepted the prosecution case before he considered the defence case. Courts below. She conceded, as she had done in the Court of Appeal, that the trial judge Mrs. Lwanga, Principal State Attorney, supported the judgements and orders of both

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cited by counsel for the appellant were distinguishable from the case before us. had led to a miscarriage of justice. There was none here. She submitted that the cases submitted that the issue in this appeal is whether the errors committed by the trial judge

.iuods. fact that the principles of natural justice were followed, which is what the two cases are appellant during the trial testified in support of his case. His testimony is evidence of the of **Annhamunthodo** cited by Mr. Tusasirwe in the present proceedings since the We are unable to appreciate the relevance of the cases of General Medical Council and

$\log$ :-: $\partial$ the Court of Appeal criticised the following passsage from the judgment of the trail the Principal State Attorney who supported the conviction. The appellant's counsel and appellant regarding the erroneous approach made by the trial judge and to the views of took part in the robbery. The Court then referred to contentions of counsel for the finding did the trial judge consider the defence and decide whether or not the appellant intention with the appellant. The Court of Appeal further observed that only after that person who stole cash and the weighing scale from the complainant had common prosecution case in isolation of the defence case, believed it and made a finding that the alluded to the complaint raised before it as ground 2 that the trial judge considered the In its judgement which gives rise to complaints in the instant appeal, the Court of Appeal

ησιολορία εργαίναι το μεταί με το μεταί το μεταί το μεταί το μεταί το μεταί το μεταί το μεταί το μεταί το μεταί τ oli ban scale the evidence relating to the missing weighing scale and the He if the attack of the accused denied any knowledge of the their He $H$ .

τοιοίε τη τι το προτε τη από το προτε τη από το προτε τη το το προτε τη το προτε τη προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το προτε το πρ 3<sup>rd</sup> June, 1994. I also believe the evidence of PW4 and PW4 who testified to the no done rishi more stole and sou =/000.002.she has scale stolen freir shop on that a were stolen in their solutions It is with that both PWI AND PWI told this court the truth when they

22 of the Penal Code Act. oction in sequence intention with the accused within the meaning of Section that the weighing scale was stolen from PWI's show only someone was stolen from show of any involved that the money and weighing scale were stolen. Alternatively, I find I also find that it was during the robbing activity in which the accused was

therefore equally guilty of that thett ................................ Augustion Orete and others Vs Uganda (1966) EA 430. The accused is $:$ $\partial \partial S$

participated in it execution." prove that the accused was the one who carried out that the that he of nother ease, therefore, the burden is upon the prosecution to

120 of 1964 (aic) and OKELH OKETE VAD OTHERS VS REPUBLIC [1965] EA. The Court below referred to Natagwa vs Republic EACA Criminal Appeal No. counsel that the approach adopted by the learned trial judge was fundamentally wrong. The Court of Appeal agreed with the criticism of the trial judge made by appellant's

555 approvingly and adopted the following passage from the last case:-

relation to all the rest of the evidence." in the position of plane of original powers of $\delta$ in the position of the position of the position of the position of the position of the position of the position of the position of the position of the position of the po isolation and then consider whether or not the case for the defence rebuts or in notation in the case of the constants who consecution in the prosecution in

think that Okethi Okale case is distinguishable. was unsatisfactory, but this case is no where near the position in Okethi Okale case. We appellant. We agree that the style of assessment of evidence by the trial judge in this case judge's judgment, the mat trial judge refers to and was conscious of the evidence of the the accused. However we note that the opening paragraph in the quotation from the trial criminal trials the burden of proof always remains on the prosecution and never shifts to We agree with these principles of the law relating to the burden of proof in that in

appeared to be the evidence of a dying declaration. scene. The only other relevant evidence in support of the prosecution's case was what was lying on the ground. According to her the four men run away when she arrived at the have recognised the appellants at the scene while they were beating the deceased who found the four appellants beating her husband. It was a moonless night but she claimed to brother. At 9.00 p.m. she heard shouts of her husband and she ran to the scene where she the principal witness testified that the deceased left home at 8.30 p.m. on a visit to his certain people and received a head injury. Joyce Awenda, the widow of the deceased and The deceased did not see his brother, and on his return journey home he was attacked by Barnabas Omolo, who lived in the same sub-location, about one quarter of a mile away. December 9, 1963 the deceased left his house at Kakola sub-Location, to see his brother, In the Okale case, the case for the prosecution was that at about 8.30 p.m., on

death. the evidence for the prosecution, convicted the four appellants and sentenced them to The only issue at the trial was the identity of the appellants. The learned judge accepted

no reference whatsoever to the contradictions. reasonable doubt, and he criticised the judgment of the learned trial judge, which made evidence of loyce Awenda contained sufficient contradictions such as would create a contended that there were inconsistencies in her evidence. He submitted that the On appeal, counsel for the appellants criticised the evidence of Joyce Awenda and

conflicts in her testimony made her an unreliable witness. created grave doubt about her ability to observe the appellants. This together with opportunity to observe the assailants of the deceased. The Court further held that this arrived at the scene the four appellants ran away implied that she did not have much The Court of Appeal for East Africa observed that the widow's testimony that when she

α case in which reasoning has to play a greater part than actual evidence." Moreover the trial judge had apparently disbelieved Joyce Awenda and held that, $\pi N$ is

$\mathsf{L}$ those in Okethi Okale case. of Appeal allowed the appeal. Clearly the facts in the present case are different from Okale case was inconsistent with the evidence of Joyce Awenda and therefore the Court during the evidence or in counsel's speeches. The theory put forward by the trial judge in is dangerous and inadvisable for a trial judge to put forward a theory not canvassed evidence adduced and not on any fanciful theories or attractive reasoning. Further that it that in every criminal trial a conviction can only be based on the weight of the actual The East Africa Court of Appeal held that this is a novel proposition in criminal trials,

purposes: R. M. Naker vs R (1956) 23 EACA 528 and Phillibert Loizean and Another declared by a higher court to be null and void, the proceedings remain valid for all Overwhelming. Moreover it is trite that until the proceedings of a lower court are below because that court found that the evidence against the present appellant was the evidence unreliable, the appeal of the appellant in the present case failed in the court directions by the trial judge on grave inconsistencies in the prosecution case which made on this point is that whilst the appeal in Okethi Okale succeeded because of misjudge was wrong. The relevant difference between Okethi-Okale and the present case during the trial in order for the Court of Appeal to hold that the judgment of the trial relied on the record of the trial court proceedings to re-assess the evidence adduced alleged misdirection by the trial judge, that in Okethi Okale case itself the Court Appeal the present case should not have relied on the record of the trial court because of the We would here observe in reference to Mr. Tusasirwe's theory that the Court of Appeal in

## $\Lambda^2$ *B* (1920) 33 EVCV 200.

possible situation in which an appellate court, and least of all a first appellate court, can unable to provide any authority in support of his theory. We are unable to envisage a declares the trial a nullity and orders of the trial Court are set aside. Mr Tusasirwe was authority for the proposition that such record remains valid until an appellate court on the proceedings except to quash the orders. P. Loizean & Gobine Vs $R(Supurs)$ is error, that error should viriate all the proceedings so that an appellate court should not act Mr. Tusasurve attempted to argue that once a trial judge's judgment is found to contain an

rule 29 of the Rules of that Court. That rules states:-Appeal, hearing of appeals, such as the one under consideration, is regulated partly by of a misdirection in the judgment by the trial Court. In the case of the present Court of be precluded from re-evaluating the evidence on the record of a trial court simply because

(a) re-appraise the evidence and draw inferences of fact". exercise of its original jurisdiction, the Court may--off up any appeal from the decision of the High Court acting in the

that the judgment of the trial court cannot be supported, that judgment will be set aside: evaluate the evidence on record and draw its own inferences and, if it is of the opinion evidence, as was the case in Okethi Okale case, the first appellate court has to rerecorded by a trial judge of the High Court. Thus in a case where there is conflict in This provision gives the Court of Appeal power to reassess the evidence received and

## D. R. Pandya vs R (1957) SA336. And S. M. Ruwala vs R (1957) EA 358.

Moreover by Rule 31(1) of the Rules of the Court of Appeal, 1996,

order a trial, and to make any necessary, incidental or consequential orders." proceedings to the High Court with such directions as may be appropriate, or to confirm, reverse or vary the decision of the High Court or to remit the On any appeal the Court shall have power, so far as its jurisdiction permits, to

material on the record to enable the appellate court to consider the appeal on its merits: the preparation of a judgment will be fatal to a conviction where there is insufficient order. Moreover it must be appreciated that failure to comply with the provisions as to during the trial. If it is not in conformity, the Court of Appeal makes any appropriate decide whether the decision of the trial judge is in conformity with the evidence adduced This means that the Court of Appeal has to consider the evidence on the record and

See Willy John Vs R (1956) 23 EACA 509.

judgment, the subject of the appeal. the judgment on the basis of reasons which may be different from those in the the error giving rise to the objection by either reversing the judgment or upholding are sound or baseless. If the objections are sound, the appellate court will correct based on that evidence in order to ascertain whether objections to the judgment appeal is to enable an appellate court to review the evidence and the judgment Appeal No. 10 of 1997) (unreported). Needless to say, one of the purposes of an 1997 (unreported), and (Kifamunte Henry Vs Uganda, Sup. Court Criminal decisions in **Bogere Moses vs Uganda - Supreme Court Criminal Appeal 1 of** appellate court did not enjoy the opportunity of seeing witnesses testify. See our the record and make its own conclusions on the case bearing in mind the fact the Appeal as a first appellate Court is entitled to critically evaluate the evidence on As we have stated above, Rule 29(1) is the basis for saying that the Court of

the misdirection is not fatal to the conviction. case before he considered the evidence for defence, we think, with respect, that Now turning to the complaint that the trial judge first believed the prosecution

of Appeal, the trial judge refers to the defence evidence in the following words--In the opening paragraph from the judgment of the trial judge quoted by the Court

## and the money especially since none had been recovered. He also challenged the evidence relating to the missing scale $H$ The his statement, the accused denied any knowledge of the the $\mathfrak{t}$

judge did not go into details by way of evaluation of the evidence of the appellant before who witnessed the robbery. The criticism has some substance in that the learned trial 1994 as testified to by Mazima and his wife, the first and second prosecution witness, the prosecution evidence on the first issue which was whether there was theft on $3^{ra}$ June, that paragraph appearing in the judgment of the trial judge is preceded by his summary of This is the pith of the defence case as we shall show presently. It should be noted that

scale. the judge found that the appellant was involved in the theft of the money and weighing

$·01$ testified against him because of the grudge with Regina, which we have already referred subsequently assaulted. He denied the offence and claimed that the prosecution witnesses robbery was recovered during the search. Thereafter they took the appellant whom they Mazima's shop. The search took an hour but nothing implicating the appellant in the members of the group searched his house because he was suspected to have broken into presence without LCs in his village as they hailed from a different village. The four people went to the home of the appellant at 5.00 a.m. He challenged them about their nis house from 6.00 p.m. until 5.00 a.m. Mazima and Bitakwata (PW4) LDU's and other judgment, the appellant stated that on the material night he, his wife and children slept in propensity towards the wrong side of the law." In his evidence already summarised in this allegation of robbery against the appellant so as to conclude that the appellant "has a Also it is correct to say that the judge should not have referred to previous prejudicial

appellant before he concluded that the appellant had participated in the robbery. recovered there. The learned trial judge should have referred to this evidence of the were searched the following morning after the robbery but none of the stolen articles was this case the prosecution evidence shows that the homes of Mwebaze and the appellant preference to the other. No one piece of evidence should be relied upon in isolation. In alongside that of the defence before the trial judge decides to accept one side in raises an alibi as his defence, the evidence of the prosecution should be evaluated As we said in cases like **Kifamunte** (Supra) and **Bogere** (Supra), once an accused person

of alibi and the allegations of grudges having been the cause of prosecution evidence been arrested red handed and held, also correctly, that this evidence destroyed the defence learned trial judge, correctly though belatedly, referred to the fact of the appellant having prosecution when he considered the defences of alibi and the alleged grudge. There the However the learned trial judge later clearly stated that the burden of proof rests on the

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the scene, the judge found that the appellant was in fact arrested at the scene. not evaluate the appellant's claim that he was arrested at his house and was not taken to against the appellant. The judge found that the alibi was false. Although the judge did

evidence. The Court of Appeal has made similar findings on the same during the robbery. the appellant testify in court found as a fact that the appellant was arrested at the scene as stated by the appellant himself. The trial judge who saw and heard the witnesses and at the scene as stated by the prosecution witnesses or whether he was arrested at his home The trial judge had to decide whether the appellant who admitted the arrest was arrested In these proceedings, the decision during the trial depended on credibility of witnesses.

we been persuaded that the two courts erred in their conclusions. scene or to the sub-country headquarters before being taken to the police. Neither have to support this. We are not persuaded that he was arrested at his home and taken to the courts that the appellant must have been arrested at the scence. There is ample evidence evidence was unsatisfactory, we nevertheless accept the concurrent findings by the two Although we agree that the approach of the learned judge in the assessment of the

must fail. We will refer to the other grounds briefly. evidence to support the conviction. This conclusion disposes of grounds 1, & 2, which Accordingly we think that the Court of Appeal was right in holding that there was

beating Mazima. Counsel surmised that, the appellant could have been at the home of Mazima just for were found there, therefore, theft as an ingredient of robbery had not been established. robbery and none of the items (money and weighing scale) stolen during the robbery argument was that because Mwebaze's home was searched the following day after the Tusasirwe contended that the evidence proving theft was inconclusive. The basis of this and fact when it found that theft as an ingredient of robbery had been proved. Mr The complaint in ground three is that the Court of Appeal made an error of mixed law

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findings of theft. Therefore ground three must fail. by Mr Tusasirwe that either or any of the two courts erred either in law or in fact in the concurrent findings of fact that theft had been committed. We have not been persuaded whether or not theft had been committed is a matter of fact. The two courts below made considered the matter. We accept the contentions of the Principal State Attorney that correctly raised before us though not in Court of Appeal. In any case the Court of Appeal established theft. We think that the issue of theft is mixed law and fact and therefore robbery. In her view the evidence of Mazima and his wife which was not challenged her, that non-recovery of stolen items is no basis for the contention that there was no it was not raised and argued in the Court of Appeal. She submitted, and we agree with Mrs. Lwanga, learned Principal State Attorney, objected to this ground of appeal because

the two cases cited by counsel for the appellant are not helpful to the appellant. Indeed were entitled on the basis of the evidence available to make these findings. We think that crime in the process of committing the offence. The trial judge and the Court of Appeal accepted the findings of the trial judge that the appellant was arrested at the scene of what circumstances is a question of fact and depends on credibility. The Court of Appeal taken to the scene. Here again the question of where the appellant was arrested and in robbery. The appellant denied this and claimed that he was arrested from his home and fourth prosecution witnesses testified that the appellant was arrested at the scene of Therefore the defences were rightly rejected. We agree. The first, second, third and by courts below shows that the appellant was arrested at the scene of the crime. his wife Kyogabirwe, Y. Nikyanira (PW3) and Leo Bitakwata (PW4) which was believed arguments. Mrs Lwanga submitted that the evidence of prosecution witnesses, Mazima, Uganda Supreme Court Criminal Appeal No 16 of 1998 (unreported), to support his Bogere vs Uganda (S. C), Criminal Appeal 1 of 1997 (unreported) and S. Nyanzi vs evidence they would have found that the defence evidence was credible. Counsel cited Counsel for the appellant contended that if the Justices of Appeal had examined the in law when they rejected the appellant's defence of alibi and allegations of grudges. The complaint in the fourth ground of appeal is that the learned Justices of Appeal erred

.list teum we disposed of this ground while discussing grounds 1 & 2. Accordingly ground four

the appellant. Ground five must therefore fail. considered the evidence before it concluded that there was ample evidence implicating Principal State Attorney and we find no merit in this ground. The Court of Appeal in fact arguments advanced in arguing the other grounds of appeal. We agree with the learned from the appellant. Mrs Lwanga contended that this argument in reality is covered in the should have found on evidence available, that the person arrested at the scene is different to fresh and exhaustive scrutiny. Mr Tusasirwe contended that the Court of Appeal The complaint in the fifth ground is that the Court of Appeal did not subject the evidence

In the result this appeal must fail and it is dismissed.

fo app ( Delivered at Mengo this.

**CHIEL INZLICE** IZNAMAN W. W. S

**INZIECE OF SUPREME COURT** T W. N. IZEKOOKO

$650$

*UNCLICE OF SEPARENTE COURT* **A. N. KAROKORA**

**I' N' WOTENCY**

*INZLICE OF SUPREME COURT*

*INZLICE OF SUPREME COURT* **G. W. KANYEIHAMBA**