Kyambadde v Uganda (Criminal Appeal 479 of 2020) [2024] UGCA 146 (14 June 2024)

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

Coram: Buteera, DCJ, Mulyagonja & Mugengi, JJA

### CRIMINAL APPEAL NO. 479 OF 2O2O

# 5 KYAMBADDEGEORGEROBERT APPELLANT

#### VERSUS

UGANDA::::::3:::::::::3!3:3!:3:i:3:333:3::3:3:3:::::::!:3!3:3i3::::::::::::::::: RESPONDENT

lAppeal from the declslon of Oyako OJok, J, delluered on 3'd Febntary 2O2O tn Kampala Hlgh Court Crlmlnal Session Case No. O22O of 2017)

#### 10

### JUDGMENT OF THE COURT

## Introduction

Kayrnabdde George Robert, Kalema Peter and Katende Dickson were indicted for the offence of aggravated robbery contrary to sections 285 and 286 of the Penal Code Act. On the 3'a February 2020 Kyambadde George Robert, the Appellant, was convicted and sentenced to 22 yeats,

6 months and 13 days' imprisonment. 15

### Background

The facts upon which the Appellant was convicted were that on the 28ti' June 2017, a Luthuli Avenue in Kampala District, the Appellant and

- others still at large attacked Kigenyi Alone and Ndabaretse Gideon who were in a motor vehicle taking their employer's money to the bank in Bugolobi. The assailants waylaid and stopped the car in the lunch time traffic jam, while one of them was armed with a gun. He and his accomplices were riding on 3 motorcycles one of which stopped in front 20 - of the victim's car where the assailant with a gun, said to be the 25 Appellant, ordered them to stop. d,\*

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The assailant used the gun to threaten Kigenyi and Ndebaretse and commanded one of his accomplices to grab a computer bag from the car which contained UGX 40,000,000/=, part of about UGX 49,000,000/= that they were on their way to bank. Immediately thereafter, the theft, the he fired at Kigenyi Alone injuring him on the cheek, but he survived to testify against him.

The persons said to have participated in the robbery were arrested about one month later, on the 24th July 2Ol7 , with an AK47 rifle, a thigh pistol and ammunition for both weapons and they were indicted for aggravated robbery. Before their trial could be held, Kalema Peter and Katende Dickson who were arrested with the Appellant were released on bail but they did not turn up for their trial. Warrants were issued for their arrest, but in vain. The prosecution thus applied to proceed against the Appellant alone and after a full trial, he was convicted and sentenced to imprisonment as stated above.

He now appeals to this court against both conviction and sentence on the following grounds:

- 1. The learned trial judge erred in law and fact in failing to properly evaluate the entire evidence on the record adduced at the trial before convicting the Appellant thereby occasioning a miscarriage ofjustice. - 2. The learned trial judge erred in law and fact when he used unsworrl assessors to convict the Appellant thereby causing a failure ofjustice. - 3. The learned trial judge erred in law and fact in sentencing the Appellant to 25 years' imprisonment, which sentence is deemed manifestly harsh and excessive on account of the existing circumstances.

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#### **Representation**

When the matter was called on for hearing on $17<sup>th</sup>$ August 2023, Ms Shamim Nalule represented the Appellant on State Brief. The Respondent was represented by Ms Faith Turumanya, Assistant DPP.

Counsel for both parties filed written submission before the hearing as $\mathsf{S}$ directed by the Registrar. They each prayed that they be considered as the final arguments in the appeal and their prayers were granted.

Counsel for the Appellant applied to amend the memorandum of appeal in ground one thereof in response to an objection that was raised by counsel for the Respondent. The proposed amendment was to specify that ground one was a challenge to the findings on the participation of the Appellant in the offence. The application was allowed and ground one was amended to read as follows:

"1. That the learned trial judge erred in law and fact in failing to properly evaluate the evidence on participation adduced at the trial before convicting the Appellant and thereby occasioned a miscarriage of justice."

The appeal was thus considered and disposed of on that basis.

#### **Analysis**

- The duty of this Court as a first appellate Court is stated in Rule $30(1)$ 20 of the Judicature (Court of Appeal Rules) Directions SI 13-10, "the Court of Appeal Rules." It is to reappraise the whole of the evidence before the trial Court and draw from it inferences of fact. The Court then comes to its own decision on the facts and the law but must be cautious of the fact that it did not observe the witnesses testify. (See Bogere Moses & - 25

Another v. Uganda, Supreme Court Criminal Appeal No.1 of 1997.)

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We are guided by the principles stated above in resolving this appeal. We therefore carefully reviewed the record set before us, considered the submissions of both counsel, ttre authorities cited and those not cited that were relevant to the appeal. The grounds were considered in chronological order as it was done in the submissions of both counsel. The submissions on each ground were reviewed before the resolution of each of them.

## Ground I

#### Submissions o:f Counsel

As a precursor to her arguments Counsel for the Appellant submitted that the Appellant was not properly identihed by the complainants at the scene of the crime. She referred court to the principles that were laid down in the often cited decision in Abudala Nabulerere & Others v. Uganda 119791 I{C. B 77. She stated three reasons to support her arguments as follows: 10 15

- i) Although the crime took place in broad day light, the complainants did not know their assailant before the incident; - ii) Although the incident took 5-7 minutes, as the trial judge found, there were a lot of things happening at the same time. There were several motor cycles at the scene of crime, the assailant grabbed the bag with money and one of the assailants fired a gun; - iii) The victims were frightened when the gun was flred and in their fright, they could not have positively identified their assailants. - Counsel then pointed us to some aspects of the testimonies of PW1 and PW2, the victims, to show that they were not sure that it was actually the Appellant who attacked them on that day. For instance, that though they testified that he was wearing an army uniform, the role that he was 25

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alleged to have played in the crime was not clear. There were several people involved and the testimonies of the victims had contradictions about the role played by each of them.

5 Finally, that the Identification Parade (lD Parade) that was conducted by PWS, D/AIP Nabeta Mathias, did not comply with the guidelines that were enunciated in R v. Mwango s/o Manaa [19361 3 EACA 29, which was cited with approval in Sentale v. Uganda [1968] EA 365 and Stephen Mugume v. Uanda, Supreme Court Criminal Appeal No 2O of 1995. She laid down the procedure that was approved by the Courts for the conduct of ID Parades and then submitted that the rules were not followed by D/AIP Nabeta. She contended that the Appellant was not given an opportunity to invite a lawyer or a friend to attend the Parade. That PWS who conducted the Parade was also in charge of the investigation although he testified that he was only in charge of the Parade. That it was wrong for PWS who was in charge of the investigation to also conduct the ID Parade. 10 15

She further contended that the people that were lined up for the ID Parade had to be of the same age, body build, skin colour, body size and height as the Appellant. That there were over 15 volunteers assembled but they were not of the same height. She referred to PEXS, the ID Parade Report, at page 82 of the record, to support her submissions.

Counsel further contended that the witnesses were kept in the same room during the ID Parade and it was possible that they discussed what they saw. That though the rules provide that the suspect is entitled to

choose the place that he will take in the Parade and to change that position as he wishes, the Appellant was not given the opportunity to do so. 25

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She went on to point out that the witnesses stated that during the incident, the Appellant wore an army cap all through. She wondered how the witnesses were able to identify him with the cap on his head. She further contended that the form filled in by the officer who conducted the ID Parade had deletions and additions with regard to the suspects that were identified. She charged that this showed that the ID Parade was not specifically prepared to identify the Appellant but some other suspect(s). Further, that the report was doctored for it had alternations at the point where it was stated that the Appellant had no objection to the manner in which the Parade was conducted.

Counsel further challenged the trial Judge's reliance on the testimony of PW4 who trailed the Appellant leading to his arrest. She pointed out that PW4 testified that he trailed the Appellant with informants. That though they had agreed with one of them that he would signal to PW4 if they found the suspect wearing an arrny uniform, they found the Appellant in a bar with others and though he was not dressed in army uniform at the time, he was identified by the informant and arrested.

Counsel then contended that there was no evidence to prove that the people that PW4 was trailing were robbers. Neither did the informant testify to prove that fact. She charged that reliance on the informant's words amounted to admitting hearsay evidence. She concluded that PWl and PW2 did not identify the items that PW4 exhibited in court as instruments that were used in the robbery. That as a result, the trial judge erred when he convicted the Appellant on the basis of such evidence and therefore, the conviction should be quashed by this court. 20 25

Counsel for the respondent agreed that the principles in the case of Nabulerere (supra) should apply in the evaluation of evidence in this case. She then contended that the conditions for the identification of

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the assailant at the scene of the crime were favourable for a proper identification in this case.

She then pointed out that first and foremost, PWI and PW2 testified that their assailant stood in front of the car in which they were both sitting in the front seat and stcpped them. It was amidst a traffic jam and he was dressed in military uniform. That it was the Appellant that jumped off a motorcycle, raised a gun and directed it at PWl and PW2 and ordered his accomplice to take the bag with the money from the car. Further, that after his accomplice took the bag, the Appellant moved closer to the victims, cocked the gun and fired, shooting PWl and injuring him. 10

Counsel added that the robbery took place in broad daylight, at about 1.00 pm. The assailant fired the gun at a close range and by the time he did so PWl and PW2 had alreadv identihed him.

- With regard to the conduct ofthe ID Parade, counsel for the Respondent submitted that the trial judge did not lay much emphasis on it. Instead he relied on the identification of the Appellant by PWl and PW2. She agreed with the Guidelines for conducting ID Parades as they were laid down in Mwanga s/o Maana (supra). 15 - With regard to the officer who conducted the ID Parade, counsel for the Respondent submitted that PWS, was not the Investigating Officer. His role was to organise the ID Parade and he followed the correct procedure for doing so. She concluded that the Appellant was properly identified by PWl and PW2 and this ground of appeal should faii. 20

## 2s Resolution of Ground <sup>1</sup>

The Appellant's complaint in this ground was that the trial judge did not evaluate the evidence properly and so came to the erroneous linding that he participated in the commission of the crime. From the

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submissions of counsel for the -\ppellant, we think that this ground of appeal can be disposed of by considering 3 issues as follows:

- i) Whether the conditions at the scene of the crime were conducive for PWI and PW2 to identify the Appellant as their assailant. - ii) Whether the identification Parade that was held after the arrest of the Appellant complied with the guidelines that have been established by the courts for such Parades. - iii) If not, whether there was other evidence on record to support the identification of the Appellant as a participant in the crime and therefore his conviction.

#### Issue <sup>1</sup>

We take cognisance of the principle that a conviction based solely on visual identilication evidence invariably causes a degree of uneasiness because such evidence can give rise to miscarriages ofjustice. There is always the possibility that a witness though honest may be mistaken. In the present appeal, the Appellant challenges the possibility that in

the circumstance in which PWl and PW2 stated that the crime was committed, they were able to positively identify him as their assailant.

The principles for the evaluation of visual identification evidence, as they were enunciated by the former Court of Appeal in Abdalla bin Wendo & Another v. R (19531 20 EACA 166, cited with approval in Roria v R [1967j 583, were restated in the case of Abudala l{abulere v. Uganda (supra) as follows: 20

- a) The testimony of a single witness regarding identification must be tested with the greatest care. - b) The need for caution is even greater when it is known that the conditions favouring a correct identification were difficult. - c) Where the conditions were difhcult, what is neede convicting is 'other evidence' pointing to ,w d before gu ilt.

- d) Otherwise, subject to certain well known exceptions, it is lawful to convict on the identification of a single witness so long as the judge adverts to the danger of basing a conviction on such evidence alone. - While dealing with the identification evidence of PW1 and PW2, the trial $\mathsf{S}$ judge, at page 11 of his decision and page 70 of the record of appeal, relied on the principles for identification as they were stated in **Bogere Moses v. Uganda** (supra) when he found and held as follows:

"In the instant case, even though the witnesses had not known the accused persons before the incidence, (sic) the incidence (sic) took about 10 7 minutes, as per the testimony of the eye witnesses. It is the testimony of Pwl that the incidence (sic) took place at around 2:00pm-3:00 pm whereas, it is the testimony of Pw2 that the incidence (sic) occurred at around 1:00 pm. The difference in the time at which the offence took place is not a major inconsistency, since it is logical for one not to have a watch 15 or look at it under such a circumstance that creates a state of fear and panic. It is also clear from the testimony of the witnesses that they were simply estimating what time it was. What is important to note is that, the incidence (sic) took place during broad day light and at a close range. In fact, it is the testimony of both Pw1 and Pw2 that the accused passed 20 and stopped his motorcycle in front of them and pointed the gun at them, *while talking to them. This gave them an opportunity to properly see and Identify their assailant.*

> It is not possible that the accused was simply framed due to a land wrangle."

Kigenyi Alone's testimony (PW1) at page 13 of the record, was that on 28<sup>th</sup> June 2017, while he was driving with a co-worker in Motor Vehicle UAW 907, they were accosted by a man in army uniform who ordered them to stop. He explained that it was in a traffic jam, he was holding an AK47 gun and he jumped off a motorcycle when the rider stopped it. That the man raised the gun in his left hand and raised his right hand and ordered them to stop. That another man, also being carried on a motorcycle and two others stopped at the passenger's door. That the man with the gun directed the man who rode on the second motorcycle to pick the bag. The second man picked the bag that was in between

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PW2's legs through the window and carried it away on his back, after which he directed the to shoot them.

He further testified that the Appellant went to his window and corked the gun. He pleaded with him not to shoot because he was at close range. That at that point, PW2 put his head between his legs but he could not do so because he was sitting behind the steering wheel. The man who had taken the bag again directed the Appellant to shoot them, in English. The Appellant then pointed the gun at him and fired bullets through the window. PWl then saw blood spurt out of his chin. He stated that it took about five minutes while he was begging the man not shoot. He then asserted that he was sure it was the Appellant because it was broad daylight and he had no problem with his sight.

When he was cross examined, PW 1 stated that he did not see the Appellant again until he was summoned to the Police for an ID Parade.

He asserted that he was sure it was the Appellant that he saw that day. That he was different from the rest ofthe assailants because he had an army uniform and was carrying a gun. That the incident took place between 2.00 and 3.00 pm and the motorcycle on which the Appellant rode stopped right in front of the car. He was also positive that it was the Appellant that ordered the other assailant to pick up the bag from the car. 15 20

PWl was not cross examined about the identification of the assailants. Counsel for the Appellant at the time focussed on whether PW <sup>1</sup> sustained injuries or not and the amount of money that was stolen. He did not even cross examine him about the weapon that the witness

stated the assailant used.

Ndabaretse Gideon, PW2, stated that the incident took place at Nice Plastics in Industrial Area. That there was a traffic jam and his

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colleague, Alone, who was driving was trying to negotiate a pot hole when they saw a "UPDF gu/ on a motor cycle. That the hrst motor cycle passed them by but stopped in front of their car and blocked the road. The UPDF guy jumped off tt,.e boda boda pointed his gun up and told s them to stop. That he thought they had committed a traffic offence but when they stopped, after about 3 minutes, another motor cycle with another man in civilian clothing came to the scene and blocked the window on his side. Another man blocked the passenger window on the driver's side, while the man that blocked the passenger side 10 commanded the one at his window to pick up the bag. The man pushed his hand through the window and pulled the bag from in between his legs, put it on his back, got onto the motor cycle and was driven away. The one that commanded his conspirator to take the bag then ordered the man with a gun to shoot them.

PW2 identified the Appellant as the man who blocked them, and who was wearing an arrny uniform with a cap. That after the Appellant was ordered to shoot them, he dropped his head between his knees. He said the assailants did not spend more than seven minutes but he was sure the Appellant was the man who fired the gun. That he was able to 15

identify him because it was during the day and he was in the front seat. He said he next saw the Appellant after three weeks when police called them to Jinja Road Police Station to see if a suspect they arrested was the man who attacked them. 20

During cross examination, PW2 stated that there were 2 motor cycles carrying 5 men. That he was able to identify the Appellant because he was putting on army uniform and a cape and he was also able to do so because the Appellant was the hrst person to attack them. He was dressed in UPDF uniform that was green in colour. That though he was traumatised he was able to see the Appellant. He seemed not to be sure whether the uniform was green or black. He was re-examined about his 25 30

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statement and it transpired that his observation was that one of the three motorcycles that were used was carrying military personnel with "madowadowa uniform" with an AK47 gun. That he was the particular assailant who ordered them to stop and pointed his gun at them, and while he pointed it at them the other assailant demanded for money.

It is evident from the testimonies of PW1 and PW2 that there was sufficient light since it was between 1.00 and 2.00 pm in the afternoon. The assailants stayed at the scene of crime for about 5-7 minutes and the cars were stationary in a traffic jam. The assailant was first right in front of the car but he moved closer to the victims where he demanded for money as he pointed the gun at them. He also shot PW1 from the same position.

However, the assailant who carried a gun and fired it at PW1 was wearing an army cape all through the incident. PW2 placed his head between his knees when one of the other robbers ordered him to shoot 15 them and corked the gun. He also admitted that he was frightened when one of the robbers commanded the assailant with a gun to shoot them. Much as there was sufficient light at the scene of the crime, there were about 5 people in the gang riding on motor cycles at the scene of the crime. In view of the fact that PW1 and PW2 had never seen their 20 attackers before, there is some doubt in our minds that the two witnesses positively identified the man in army uniform wearing a cape and carrying a gun as the Appellant in this case. We shall return to this matter later on in this judgment.

## Issue 2 25

The Appellant's other complaint was about the conduct of the Identification Parade, and counsel raised several points about it. One of them was that the Identification Parade Report showed that the parade was not organised for PW1 and PW2, because it had the name of another

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witness that was deleted and that of PW1 inserted. Counsel referred to other areas in which the officer who conducted the Parade failed to follow the procedure that has been accepted by the courts. Counsel for the Respondent on the other hand contended that the trial judge did not lay emphasis on the results of the ID Parade, implying the he relied on other evidence on the record to convict the Appellant of the offence.

We observed that the trial judge referred to the result of the ID Parade at pages 9 and 13 of his judgment (pages 66 and 70 of the record of appeal) where he stated as follows:

"The testimony was also further corroborated by the testimony of Pw5" (D/AIP Nabeta Mathias) who told court that after the arrest of the accused, he conducted an identification Parade whereby he looked for volunteers of the same size, almost the same colour, height and even build up. That he asked Kyambadde to take any position he wanted and he did. That he had not met with the witnesses before the Parade and after conducting it, he asked the accused (Kyambadde) if he was satisfied with the Parade and he said he was.

It is the testimony of Pw5 that during the identification Parade, the witnesses pointed out the accused person as their assailant. That he had never known the accused persons before."

It was therefore not correct for counsel for the Respondent to state that the trial judge did not rely on the result of the ID Parade because it is clear that he did so to corroborate the evidence of PW4 who testified

that he tracked a gang of suspected robbers. And that as a result, he 25 arrested the Appellant and three other members of the gang. It then becomes necessary for us to reappraise the evidence about the ID Parade.

The guidelines for the conduct of Identification Parades were considered in the case of Sgt Baluku Samuel & PC Walusa Joshua v. Uganda, 30 **Criminal Appeal No. 21 of 2014.** This court relied on them as they were enunciated in R v. Mwango s/o Manaa [1936] 3 EACA 29, and

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emphasized in Ssentale v. Uganda [f968] EA 365 and Stephen Mugume v. Uganda, Criminal Appeal No. 2O of 1995 (SCf , as follows:

- 1. That the accused person is aluags informed that he mag haue a solicitor or fiend present tuhen the Parade takes place. - 2. Tlnt the offi.cer in charge of the case, although he mag be present, does not caftA out the identification. - 3. That the uitnesses do not sez the accused before the Parade. - 4. That the acansed is placed among at least eight persons, as far as possible of similor age, height, general appearance and class of life as himself or herself. - 5. Ttnt the accused is allowed to take ang position he chooses, and tttat he is alloued to change his position afier eoch identifuing uitness has \efi' if he so desires. - 6. Care is to be exercised thdt the witnesses ore not allotued to communicate uith each other afrer they haue been to the Parade. - 7. Exclude euery person uho has no business there. - 8. Make a careful note afier e ach toitness leaues the Parade, recording whether the witness identifies or other circamsfances. - 9. If the uitness desires to see the acansed walk, hear him speak, see him tuith his hat on or off, see that this is done. As a precautionary nTeasure it is suggested the uhole Parade be asked to do this. - 1O. See that the u.litness touches the person he identifies. - <sup>1</sup>1 . At the termination of the Parade or duing the Parade ask the acansed if he is satisfied that the Parade is being conducted in a fair manner and make a note of his replg. - 12. In introducing the utitness tell him that he uill see a group of people utho maA or mag not contain the suspected person. Don't saA, "Pick out somebodg," or inJluence him in ang toag whatsoeuer. - 13. Act utith scrupulous fairness, otherutise the ualue of the identification as <sup>e</sup>uidence will depreciate considerablg.

In Baluku's case (supra) this court held that every Police Officer conducting an Identification Parade should abide by the Rules above and should inculcate in himself or herself the practice of always abiding by them to the letter. That this would ensure that both the accused person and the Court are satisfied with the conduct of the Parade even

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if the accused may agree or not agree with the outcome of and conduct of the Parade.

5 In the appeal now before us, at page 37 to 38 ofthe record, AIP Mathias Nabeta (PW5) exptained the process he went through in conducting the ID Parade. He started with ensuring that the witnesses were not kept in the same room during the process. He also briefed each of them before he separately led each of them to it for the identification of the suspect, that they were to participate in an ID Parade. Further that they were required to touch the person they identified as the suspect, if he/she was included among those lined up.

He stated that he identilied and collected the 8 participants from the police cells and the suspect was the 9th person. That he subjected the witnesses to the parade three times for each of them (PW1 and PW2). Further, that he gave the suspect the opportunity to choose the place he would occupy and he chose to change positions after the first round of identification. He also had the volunteers and the suspect remove their shirts for the second round of identification. For the third round of identifrcation, he had 8 volunteers lined up without the suspect.

Our conclusion from the testimony of PW5 was that he made some effort to follow the Rules for conducting ID Parades but we were left wondering why he asked the participants to remove their shirts yet none of the assailants at the scene of the crime was bare chested. However, we do not accept the submission that PWS had the obligation to put all the volunteers in army uniform for the parade. Neither did he have an obligation to ask them to put or head gear, a cap, such as the one that the assailant was wearing during the robbery, but it would have been prudent for him to do so, though rule 9 above requires that the officer conducting the Parade only does so if a witness requests for it. 20 25

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In addition, PW5 did not observe the requirement in rule 8 to make a careful note after each witness left the Parade whether the witness identified the suspect or other circumstances. This is important and it is emphasised at the end of PF69, the Identification Parade Report" $(PEX5)$ as follows:

"N. B. for the reasons stated in Police S. O. 14/54, an additional statement must be taken immediately after the parade from each witness who attended, as to who he identified, if anyone, and in what connection he identified that person."

We further observed that there was a space in the form where it was 10 stated thus: "Give a reply made by witnesses when asked in what connection did they identify a member of the parade." In this space, PW5 recorded that:

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"It was day time at 02.30 PM. I saw him as he came to us close. I too saw the rider and drove away as he sat on the motor cycle. The witness *Musinguzi cried as he saw the suspects on the parade."*

The Form also showed (at page 3 thereof) that the $1<sup>st</sup>$ witness recorded therein was Muinguzi. However, that name was deleted and replaced with the name "**Kyambadde Higenyi Alone**." The second witness was Ndabaretse Gideon. We thus accept the assertion by counsel for the 20 Appellant that the Parade appears to have been organised for another witness called Musinguzi, yet he was not one of the victims in this case. It is therefore possible that Musinguzi was a witness in another case related to the Flying Squad investigation of robberies in Metropolitan Kampala, where Kyambadde George Robert was among the suspects 25 arrested.

We further observed that though the Form required that the signature or Right Thumb Mark of the witnesses be inserted beside their name in the first column, neither of the witnesses stated in PW5 signed against their name. In the absence of their signatures, we could not, without

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muy doubt, conclude that the witnesses in this case were indeed the persons for whom the identification parade was organised.

Finally, rule 13 of the Rules established by the courts for identification parades states that police officers conducting a parade should act with scrupulous fairness, otherwise the value of the identification as evidence will depreciate considerably. It was unfair, indeed unprofessional of PW5 to state that the parade that he conducted for Musinguzi was meant for PW1 and PW2. The value of the Parade was therefore not only depreciated but rendered invalid. For that reason, we disregarded it.

Issue 3

$\mathsf{S}$

As to whether there was any other evidence on record to support the finding that the Appellant participated in the robbery, at page 72-73 of the record (page 13-14 of his judgment) the trial judge found and held thus:

"Pw4 told court that after opening a general file to investigate cases of aggravated robbery, murder and so on, they were informed about a mission the accused person and his colleagues were planning to carry out.

The accused and his colleagues were trailed by the police, 20 including Pw4 and the accused was arrested with guns and later identified by Pw1 and Pw2 as their assailants on 28/06/2017.

> There is a high link with the aborted mission which led to the arrest of the accused person and the robbery whose victims were Pwl and Pw2 (the instant case) since they identified the accused who was already in custody as one of their assailants.

> Given the foregoing, I therefore find that prosecution has proved its case to the required standard and as such find the accused guilty as indicted." *{Emphasis added}*

The excerpt above shows that the trial judge linked the identification of 30 the Appellant at the Parade held on 3<sup>rd</sup> August 2017 to his arrest by No

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<sup>567</sup>47 DIC Oketlo Ibrahim (PW4). He therefore relied on circumstantial evidence to come to the linding that it was that he participated in the robbery that is the subject ofthis appeal. It then becomes necessary for us to reappraise the evidence relating to the Appellant's arrest in order to establish whether it meets the standards that have been established for a court to convict an accused person on the basis of circumstantial evidence.

D/C Okello Ibrahim (PW4) testified about the Appellant's arrest which he effected on 24:s July 2017. He stated that he was attached to the F1ying Squadr as a regional tracker. And that on the 3'd July 2017, on the basis of a group of informers, he was deployed to track a group of robbers who were committing various crimes at ttre time in the Kampala Metropolitan Area East, from Jinja Road to Nakifuma. That while in <sup>a</sup> meeting with the Regional Police Commander (RPC), he was introduced to two people who informed the RPC that there was a group of robbers on a mission to carry out robberies in the area but they had no vehicle to use in their mission. That the RPC deployed a police motor vehicle 10 15

informers as a tracker.

PW4 further testified that he moved with the informants who were given the motor vehicle and cycle. He was following them on another motorcycle when the informers led him to Kitintale where they met one

and motorcycle, both with private number plates, for the use of the

robbers with the intention of tracking them as they went about

committing the crimes. PW4 was assigned to work with the two

called Peter Kalema and a person he later came to know as Kyambadde George. That the informers, with Kyambadde in the vehicle, led him to Luzira Port Bell where they entered a bar. He there got to know 3 other 25

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I The Flying Squad is described by the Police as an elite police tactical unit that for emergency response to curb high crime rates in the subu.'bs. lt deals with high profile crimes suchs as armed robbery, kidnap, vehicle .obbery and murder <sup>18</sup> w-

people in the group, together with an accountant who was employed by Mukwano the Indian, and a brother to Kyambadde called Robert. That the group ofabout 7 people then went out of the bar to view the vehicle and they approved it. The police informant then left with the vehicle and took one of them, Othieno Martin to Busega.

He further testihed that on the 4th July 2017, the suspected robbers regrouped at 8.30 am at Kirombe in Luzira. PW4 got to know about this because he was in charge of the police vehicle that had been given to the informants for their use in order to trap them. He handed the vehicle over to the contact who came to police to pick it up and he followed it on a motorcycle from a distance of about 3O metres. That when the suspects regrouped, Kyambadde entered the vehicle and told the rest of the group to wait for him. Kyambade rode in the vehicle to Bukasa Butabika and the vehicle stopped and parked at a stall with a woman selling charcoal. She handed a sack over that had something that was "a bit lean." That Kyambadde took the sack and sat in the vehicle with it anC PW4 continued to follow them on the motor cycle till they met others in the group, at a place called Kirombe.

- That at Kirombe, Othieno Martin entered the car while Robert was on a motor cycle that one of the suspects called Kalema rode. The accountant from Mukwano was not with them but they then drove, and rode to Industrial Area in Namanve, to DTB Bank. That however, the Indian's vehicle that had money and which they were supposed to intercept was already at DTB Bank. Their hrst mission thus aborted. 20 - <sup>D</sup>/ C Okello went on to testify that the suspects regrouped after two weeks, on 24th July 2017, the day on which the informer told him they were to carry out another mission. He testihed that he instructed the informer, who was again driving the police vehicle for the suspects, that as soon as he sees the Major, as Kyambadde was referred to in the 25

<sup>19</sup> V

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group, dressed in army uniform and with a gun and the vehicle they were supposed to intercept approaching, he should break the lock in the steering as though to start the vehicle but not start it. That this would give the Indian they were trying to intercept time to pass them by. That the informer complied and when the Indian's vehicle passed by, after about 5 minutes the decoy vehicle with the suspects sta-rted. But tJley could not carry out the robbery; so once again their mission aborted.

PW4 further testified that when the second mission aborted the three motor cycle riders who had been waiting for Kyambadde, who had a big gun to be used to intercept their victim, proceeded to Luzrra to their usual rendezvous, the bar. He further explained that he again trailed them to the bar. However, this time he had a back-up team of about 18 people from Police, some in uniform and others not, and they surrounded the bar. That is was then that Kyambadde was arrested. About the arrest, PW4 testified as follows: 10 15

> "Afier I surrounded them Kgambadde uas arrested. It was not on easA arrest, because as soon he sanu the uniform he tied to pick the gun from the corner u-there he had placed it but since I uas in ciuilian I had time before he could grab the gun. I grabbed Kyambadde and fell with him and he was arrested plus Kalema Peter, Othieno Martin, and our contact pas also anested. The 3 iders managed to escape plus the other uho was carrying a pistol. There uas a gellotu bag on the table lefi. bg Robert his in-laut uhich had a pistol it is a thigh pistol such pistols are designed for secuity personnel uho are ladies. (sic)

> He uas arrested and the gun and pistol were recouered and theg u.tere diuen to Jinja road police. I uas the one uho recouered the items, it LUas one AK47 loaded with 26 rounds of ammunition (this gun is commonlg called AK SAS type). It's different because of the corking handle, it tuas the old model. And also recouered one thigh pistol with its 3 rounds that same pistol plus 5 rounds of star pistol (had tu.to tgpes of bullets,).' /sic/ Afier recouering them I handed them ouer to AIP Nabeta."

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The weapons and bullets were admitted in evidence collectively with the Exhibit Slip as PFJ(4, with no objection from the Appellant's counsel.

PW4 further testified that Kyambedde was originally an army man. That a search of his house by PWS, brought up a letter dated 7m April 2016 which showed that he was previously convicted on his own piea of guilty and sentenced to dismissal from the Defence Forces. It was tendered in for identification purposes and marked IDl;it was never admitted in evidence when PWS, Nabeta, who searched the Appellant's house testified. However, the Appellant admitted that he was dismissed from the Uganda Peoples' Defence Forces (UPDF) though he asserted that it was for being a deserter.

D/C Okello was cross examined about the weapons and their use on 28th June 2016. Although he indicated in his testimony, at page 29 of the record, that two of the bullets that he recovered with the guns were used by a ballistics expert, the expert was not called to testify' Therefore, when he was asked whether there was evidence to prove that the AK47 or SMG gun that he recovered was the same gun that was used by the assailants on 28th June 2Ol7,he said he could not ascertain that. It was ballistic expert who could do so. There was therefore no conclusive evidence on the record that the AK47 or SMG gun that PW4 recovered on arresting the Appellant was actually the same gun used in the aggravated robbery that is the subject of this appeal.

Further evidence was adduced through PWS, Nabeeta Mathias, that during the arrest, an army uniform was recovered with the weapons in the possession of the suspected gang of robbers. This would be linked to the robbery in that it was also the testimony of PWl and PW2 that during the robbery, the Appellant was in an army uniform.

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However, D/AIP Nabeta testified that though he was meant to produce the uniform in evidence as the person who received it from D/C Okello who recovered it from the suspected robbers, the uniform was never admitted in evidence. At page 36 of the record PWS stated that it was recovered with the guns from the suspected robbers before he searched the Appellant's house. Further, though the Exhibit Slip marked PEX4 showed that among the items recovered by D/C Okello there was "a pair of anny uniform" D/C Okello said nothing in his testimony about it.

D/AIP Nabeta went on to explain, at page 36 of the record, that the army uniform that D/C Okello handed to him was in a small sack but he did not say what colour the sack was. Counsel for the Appellant also complained about a belt and a cap that the prosecution tried to tender in evidence through the same witness. PWS testified that these items were not tendered in evidence by DIC Okello because on the day he testihed, PWS was absent and so could not release the uniform to him. When he was examined by the trial judge about the uniform, at page 43 of the record, PW5 stated that though he kept the uniform, he was not the correct person to tender it in evidence because he was not the one that recovered it. 10 15

- We also observed that during his testimony, at page 29 of the record, DC Okello stated that among the items he recovered was "a gellou bag on the table lefi bg Robert his in-laut. " But contrary to the testimony of PWS, he did not say that in addition to the thigh pistol, the bag also contained an army uniform. 20 - The army uniform was therefore never admitted in evidence as an exhibit to implicate the Appellant, and correctly so. It was not clear to us how it came into the possession of PWS. Given that he was also involved in the search of the Appellant's house, it could be inferred that it was from there that he came upon it and recovered it. This contributed 25

<sup>22</sup> W

to the gap in the evidence linking the Appellant to the robbery that was committed against PW1 and PW2.

In his defence, the Appellant stated that the Police framed him with the offence. He denied that guns were recovered from him. He testified that

- there was a land dispute between him and some rich men. That the rich $\mathsf{S}$ men employed PW5, D/AIP Nabeta, to frame him with the robbery in this case. Further that he was arrested by a Mukiga man called Byamugisha. That on the 24<sup>th</sup> July 2017 he went to the market to sell his vegetables. After he sold all of them Police came to the market where - he had gone to buy fish and arrested several people, including him. He 10 asserted that the ID Parade organised by PW5 was meant to frame him with this offence.

We agree with the finding of the trial judge that the Appellant's defence did not hold water. But we must make our final conclusions about the circumstantial evidence that the trial judge relied upon to convict the Appellant of aggravated robbery.

In Janet Mureeba & 2 Others v Uganda, Supreme Court Criminal Appeal No. 13 of 2003, the Court reiterated the test applied by the courts in the evaluation of circumstantial evidence as follows:

- "There are many decided cases which set out the tests to be applied in 20 relying on circumstantial evidence. Generally, in the criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused. In $R$ vs Kipering Arap Koske & Anor (1949) 16 E. A. C. A. 135, it was stated that in order to justify on circumstantial evidence, the evidence of guilt, 25 the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. That statement of the law was approved by the E. A. Court of Appeal in Simon Musoke vs R. [1958] E. A. 715." - In Byaruhanga Fodori v. Uganda [2002] UGCA 4, this Court expressed 30 itself clearly on the law regarding circumstantial evidence, as follows:

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"It is tite law that tuhere the prosecution case depends solelg on circumstantial euidence, the Court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon anA other reasonable hgpothesis than that of guilt. The Court must be sure that there are no other coeisting circumstances, uhich tueaken or destrog the inference of gltilt. (See S. Jllusoke us, R. [1958] E. A. 775; Teper as. R. [1952] A. C. 480)."

- The standard that is required before a court can rely on circumstantial evidence to convict is a high one. There must be no other facts that cast doubt on the circumstantial evidence that leads to the conciusion that it was indeed the accused in the dock that committed the offence. There must also be no facts that could infer that he is innocent. In R. vs Taylor Wear & Donovar [f 928] 2l Cr. App. R 20 (cited in Tumuheirse vs Uganda 11967l E,A. 328), the Court stated that it is no derogation that evidence adduced to prove a case is circumstantial. To the contrary, circumstantial evidence may offer the best evidence as it can prove a case with mathematical accuracy. 10 15 - It is amply clear that in the instant case, PW4 and PWS were not investigating the robbery that was carried out against the Appellants on 28th June 2017. Instead, they set out to investigate and arrest a group of robbers that were committing armed robberies tn the whole of Kampola Metropolitan East, from Jinja Road up to Nakifuma. " They therefore did not specilically trail robbers that committed the robbery against PWl and PW2; rather, they trailed robbers who had planned to accost and rob certain Indians who they knew were in the habit of carrying money to DTB Bank in Namanve. 20 25

That they could be the same robbers that attacked the victims in this case was a strong probability. However, in order to piece the evidence against them together to meet the standard that it was indeed the said robbers, beyond reasonable doubt, the trail of evidence had to be linked

<sup>24</sup> & Lp-L

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together carefully in order to convince the court. It is our view that with regard to the evidence adduced by the prosecution as a whole, the weapons that were recovered from the suspects had to be scientifically linked to the crime scene where a gun was fired wounding PW1, but such evidence, though it was adverted to by PW4, was not produced because the ballistics expert did not testify.

An effort was made to hold an ID Parade to link the Appellant who was arrested with guns together with other suspected robbers but it was handled in an unprofessional manner leading to our rejection of the Report. This report would have placed the Appellant at the scene ofthe crime but the prosecution failed to achieve this. The recovery of the police uniform remained a mystery and therefore contributed to creating doubt because the chain linking it to the Appellant's arrest was broken when instead of PW4 who is said to have recovered it handed it over to PWS who said nothing about it. Instead, the prosecution tried to adduce

In the absence of evidence to prove that the weapons that were found in the possession of the suspected robbers, including the Appellant, were indeed the weapons that were used in the robbery by assailants who attacked PWl and PW2 on the 28th June 2017, we find that there was insuflicient circumstantial evidence to place the Appellant at the scene of the crime in this case. The inculpatory facts are not consistent with the guilt of the Appellant and we have no other alternative but to acquit him of the offence of aggravated robbery.

it as an exhibit to complete the chain through PW4.

However, there is no doubt in our minds that D/C Okello (PW4) on the 24th July 2014 recovered weapons and bullets from the Appellant and his accomplices in a bar at Luzira. They were produced in evidence together with an Exhibit Slip and collectively marked PEX4. The weapons were described in court by PW4 as they were in the Exhibit 25

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Slip as: SMG rifle No. UG POL U68833007238 with 24 rounds of ammunition, and a pistol Serial No. 16110440 with five munitions of Star pistol.

There was in addition to that the testimony of $D/C$ Okello that at the time of arrest the Appellant tried to grab the riffle, which he had placed $\mathsf{S}$ beside him, to use it to fend off the security personnel who had surrounded him in order to resist the arrest. PW4 explained that he had to wrestle him down in order to arrest him.

Section of the Judicature Act provides that:

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.

Rule 32 (1) of the Court of Appeal Rules then provides for the general powers of this court on a first appeal as follows: 15

> (1) On any appeal, the court may, so far as its jurisdiction permits, confirm, reverse or vary the decision of the High Court, or remit the proceedings to the High Court with such directions as may be appropriate, or order a new trial, and make any necessary, incidental or consequential orders, including orders as to costs.

Section 87 of the TIA provides that when a person is charged with an offence and facts are proved which reduce it to a minor cognate offence, he or she may be convicted of the minor offence although he or she was not charged with it. A minor cognate offence is a lesser offence that is related to the greater offence and shares several of the elements of the greater offence and is of the same category.

The Appellant and his accomplices formed the intention to commit aggravated robbery against the employees of an Indian, Mukwano. They obtained a motor vehicle and motor cycle, covertly supplied by the Police in its investigations, and already had guns which they kept with another

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accomplice. PW4 witnessed the Appellant retrieve what appeared to be a gun from this accomplice, a woman who sold charcoal at Butabika Bukasa, on the 4<sup>th</sup> July 2017. The Appellant and his other accomplices on motorcycles trailed a Black Ipsum motor vehicle carrying money, which PW4 was informed they intended to intercept and steal the money. He was also present when they approved of the motor vehicle and motor cycle for use in the heist, and eavesdropped on their meeting to commit the offence at a bar in Luzira, on 3<sup>rd</sup> July 2017.

On 4<sup>th</sup> July 2017, PW4 trailed the Appellant and his accomplices, Othieno Martin and Kalema Peter and others, during their attempt to $10$ commit aggravated robbery. But by the time they got to the Ipsum, it was already at DTB Bank in Namanve so they could not intercept it any more.

PW4 again trailed the Appellant and his accomplices on 24<sup>th</sup> July 2014 when police informers told him that the Appellant and his accomplices 15 continued to pursue their intentions to commit aggravated robbery. They attempted to commit the offence with the same weapons, motor vehicle which was driven by an informer for the Police and the motor cycle. PW4 gave the informer instructions to ensure that the Appellant and accomplices could be arrested during the commission of the 20 offence. But once again their plans aborted. The actions of the Appellant and his accomplices are classified under section 386 of the PCA as attempts, as follows:

### 386. Attempt defined.

$\mathsf{S}$

(1) When a person, intending to commit an offence, begins to put his or her intention into execution by means adapted to its fulfillment, and manifests his or her intention by some overt act, but does not fulfill his or her intention to such an extent as to

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commit the offence, he or she is deemed to attempt to commit the offence.

$(2)$ It is immaterial—

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(a) except so far as regards punishment, whether the offender does all that is necessary on his or her part for completing the commission of the offence, or whether the complete fulfillment of his or her intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of his or her intention;

(b) that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

According to subsection (2) of section 386 PCA, it is immaterial that the Appellant and his accomplices were facilitated by the police while it carried out its investigations. It is also immaterial that the offence was 15 not concluded on both occasions that they set out to commit it. What is most important is that there were overt acts represented by the Appellant's efforts to secure a motor vehicle which were successful, the possession of a gun and pistol, as well as the meeting with his accomplices to plan the robbery on $3<sup>rd</sup>$ July 2017. The trailing of the 20 motor vehicle known to carry money to the bank on 4<sup>th</sup> and 24<sup>th</sup> July 2017 was a definitive overt act and an unequivocal partial execution of their plans.

We therefore find the Appellant guilty of two attempts to commit aggravated robbery, on 4<sup>th</sup> and 24<sup>th</sup> July 2017, respectively. And as a 25 result, we quash his conviction for the offence of aggravated robbery and substitute it with a conviction on two counts of attempted aggravated robbery. Ground 1 of the appeal therefore partially succeeds.

### Ground 2

This was the compliant that the trial judge employed unsworn assessors 30 in the trial of the Appellant and therefore occasioned a miscarriage of justice when he convicted him.

28 $\mathbb{R}$ Iran

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# Submissions of Counsel

a

Counsel for the Appellant drew our attention to page 9 of the record of proceedings where the trial judge appointed two assessors without any objection by the Appellant. He faulted the trial judge for not administering the assessors' oath to them and submitted that it occasioned a miscarriage ofjustice. He referred to section 67 ofthe Trial on Indictments Act which provided that at the commencement of the trial, the assessors if appointed shall take their oath. She submitted that the taking of the oath is mandatory and where it is not taken the right to a fair trial is contravened. She prayed that this court declares the trial a nullity for being defective.

In reply, Counsel for the Respondent submitted that the omission to administer an oath to the assessors does not render a trial fatal where it does not result in a miscarriage ofjustice. She referred to section 139 of the TIA and the decision of the Supreme Court in Ndaula v Ugauda I2OO2| L E,A2l4, where it was held that it was undoubtedly elToneous for the trial to proceed in the High court without the assessors taking oath. That however, the omission did not go to the competence of the jurisdiction of the Court. Instead, the irregularity falls within the ambit of section 137 of the TIA. She then submitted that the failure to administer the oath to the assessors did not occasion a miscarriage of justice in this case. She prayed that ground two be dismissed' 15 20

## Resolution of Ground 2

We need not belabour this point because counsel for the Respondent admitted that the trial judge did not administer the assessor oath to the two assessors that he appointed on the 12tt' September 2019. Though counsel for the Appellant submitted that this occasioned a miscarriage of justice, she did not demonstrate it out to court. Neither did she cite any authority to support her submissions. 4 25

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(v.1/1/4

In Agaba Lilian & Amutuheire Patrick v Uganda, Criminal Appeals No 247 and 239 of 2017, which were on all fours with the instant case in that the trial judge omitted to administer the assessors' oath to them, this court relied on the decision of the Supreme Court in Ndaula's case (supra) and reproduced the relevant part of it where the court observed and held that:

"It is undoubtedly erroneous for a criminal trial in the High Court to proceed without the assessor taking oath as is required under section 65 of the trial on Indictments Decree of 1971. That section provides that at the commencement of the trial, after the preliminary hearing, if any has been concluded, 'each assessor shall take an oath impartially to advise the court to the best of his knowledge, skill and ability on the issues pending before the court,' it follows that to omit the oath and proceed to trial with unsworn assessors constitutes an irregularity in the proceeding of the trial. The omission however, contrary to Mr Nyamutale's argument, does not go to the competence or jurisdiction. An assessor does not become an assessor by reason of taking the assessor's oath.

Rather, he takes that oath because he is an assessor, duly listed and selected to serve as such, under the Assessors Rules. In our view, the irregularity falls within the ambit of section 137 of the Trial on *Indictments Decree which reuds: ...*

In the instant case it has not been suggested that there was a failure of justice by reason of the assessors not having taken oath at the trial. We *are satisfied that no such failure of justice was occasioned.*"

This court then observed that the decision in **Ndaula's case** was a decision 25 of the Supreme Court that this court was bound to follow. Court then came to the conclusion that the failure to swear the assessors in the case did not render the trial a nullity.

We see no reason to depart from the decision either. No miscarriage of justice was occasioned due to the omission to swear in the assessors in 30 this case and it falls within the ambit of section 139 of the TIA.

Ground 2 of the Appeal therefore fails.

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### Ground 3

In this ground, the Appellant complained that a sentence of 25 years' imprisonment for the offence of aggravated robbery was manifestly harsh and excessive in the circumstances of the case. Having quashed the conviction, we have no alternative but to quash the sentence as well and we hereby do so. That then behoves the court to re-sentence the Appellant for the offence for which he has been convicted, under section 11 of the Judicature Act.

Section 388 of the PCA provides as follows:

#### 388. Punishment of attempts to commit certain felonies.

Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of death or imprisonment for a period of fourteen years or upwards, with or without other punishment, commits a felony and is liable, if no other punishment is provided, to imprisonment for seven years.

The circumstances of the two attempts to commit aggravated robbery were that the Appellant and his accomplices were in possession of a gun that was stolen from the Uganda Police and another weapon, a pistol ordinarily carried by female security personnel. The Appellant was the leader of the

gang, a former member of the UPDF who was dismissed on his own plea of 20 guilty on charges of personation. He seems to have become stuck in his ways and embarked on a life of crime when he was dismissed, in which he led a gang with the intention to commit armed robberies.

Since the maximum sentence for the offence which this court has convicted him of is 7 years, we hereby sentence Kyambadde George Robert 25 to 6 years' imprisonment for each of the two attempted robberies, to run consecutively.

The Appellant was first sentenced on 3<sup>rd</sup> February 2020. At the time he was sentenced he had spent a period of two years on remand. We now deduct the two years spent on remand from the consecutive sentence of

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12 years and hereby sentence him to serve a term of 10 years' imprisonment from the date he was first convicted, the 3'a February 2O20.

Dated at Kampala this dry or -1;.t'"c,, 2024. \

Richard Buteera DEPUTY CHIEF JUSTICE

oa I

15 Irene MulyagonJa JUSTICE OF APPEAL

rMonlca Mugenyi JUSTICE OF APPEAL I

\* This judgment was signed before this judge ceased to hold that offce