Omara v Uganda (Criminal Appeal 76 of 2020) [2023] UGCA 135 (18 March 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT ARUA

[Coram: Barishaki, Mugenyi & Gashirabake, JJA]

### CRIMINAL APPEAL NO. 027 OF 2017

(*Arising from Criminal Case No. 0141 of 2006*)

#### **BETWEEN**

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1. OMIRAMBE JIMMY

2. OYENY EMMANUEL

**3. OMIRAMBE DAVID. ...................................**

#### AND

#### **UGANDA ...................................** 15

[Arising from the decision of STEPHEN MUBIRU, J of the High Court of Uganda sitting at Arua in Criminal Case No.0141 of 2006 dated 24th January 20177

#### **JUDGMENT OF COURT.**

#### Introduction.

The Appellants and others at large on the 15th August 2015 at Angaba Lower village in Zombo District allegedly willingly and unlawfully robbed Ocan Wilson of six goats and one pig valued at UGX 600, $000/=$ and robbed Warom Charles of a pair of shoes and T-shirt worth Shs. 38,000/=. In both cases the 25 accused, immediately before or after the said robbery threatened to use a deadly weapon to wit bows, and arrows on each of the named victim and set fire to the house of Okumu Malisaters, the house of Jawiambwe Moses, the house of Obemu Albert, the house of Otwing – Cwinyi Albert, the house of Ocan Wilson,

the house of Afoyocan Maurine and the house of Warom Charles. 30

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- 5 When the above events took place, the complainants were in thc garden about 60-70 meters from thcir houses. They wcre attacked by a group ofaround thirty people who included the accused, blowing horns making a lot of noisc and armed with bows, arrows and pangas. The group was led by a one Naal. They insulted the witnesses, set fire to PW2's house, the houses of Obengu, Otwing - Cwiny, - Jawiambe Moses and many other people. They shot arrows at them and one of the arrows struck Warom Charles in the chest. PW2 saw r\2 unfetter his goats and a pig and took them away. He again saw A I attack PW3 with a panga. 10

In their defence, the Appellants denied the allegations labelled against them with A1 stating that he was attending prayers thal day and later passed time at the trading centre.'l'hat hc only learncd about thc incident whcn hc was arrested at around 5:00 pm saying that Angaba was the one falsely accusing them ofhaving been involved in the fight. A2 stated that he was arrested at around 5:00pm. He had spent part ofthe day in his garden buming charcoal and for the case of. A3, he stated that he was arrested when he had gone to his in-law to see the land

which had been given to her and in course ofasking for directions he was arrested at around mid-day, being a strangcr in thc area 20

The Appellants, were convicted on 2 counts ol aggravated robbery contrary to Section 285 and 286(2) and 7 counts ofArson contrary to Section 237 (a) ofthe Penal codc act cap 120 by the tligh Court of lJganda sitting at Arua and subsequently sentenccd to 28 years and 6 months imprisonment in respect of count I and count2 and 5 years imprisonment for counts 4,5,6,7,9 respectively. Dissatisfied with the decision of the trial Court the Appellants filed an appeal in this court on grounds that:

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- 5 l. 'fhc learncd trial Judgc crrcd in law and in lact whcn hc wrongly cvaluated the cvidcnce prcsentcd bcfore him on rccord thcrcby arriving at a wrong dccision to convict thc Appcllants. - 2. 'fhe learned trial Judge errcd in-law and in fact when hc ignored thc gross inconsistcncc and contradiction containcd in thc prosecution cvidcncc that wcnt to the root ofthc casc. - 3. 'l'hc lcancd trial Judgc errcd in law and fact whcn hc chosc to placc a heavy burdcn of proof on thc Appcllants to provc thcir innoccncc thcrcforc occasioning a miscarriage ofjusticc 10 thc Appcllants. - 4. 'l hc lcarncd trial Judgc crrcd in law and in f'act whcn hc scntcnccd thc Appcllants to an cxccssive prison scntcncc, in disregard of thc Constitution (scntencing Guidelines for courts of Judicaturc) (practicc) Dircctions. issucd in 2013. - 5. 'fhe learncd trial Judgc crrcd in law and fact and arrivcd at a wrong decision to convict thc Appcllants on Counts 2, 4, 5, 6,7 and 9.

# Duty of the l't appellatc court

The duty of this court as a first Appellate Court was stated in the case of Kifamunte Henry V Uganda, S. C Criminal Appeal No. l0 of 1997 wherc court held that;

"'l-hc first appcllatc courl has a duly to rcvicw thc cvidcncc ol thc case, to reconsidcr thc malerials beforc thc trial judge and make up its own mind nol disregarding lhc judgnrcnl appcalcd from but carefully weighing and considcring it." 25

This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage

of Justice as it mindfulty arrives at its own conclusion. 30

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# 3 Representation

The Appellants were represented by Mr. Madira Jimmy. The Respondent was represented by Ms. Sharifah Nalwanga.

# Submissions of Counsel for the Appellant.

Counsel for the Appellants argued grounds 1 ,2 and 3 jointly.

- 10 Counsel submitted that the position of the law is settled under Section 103 of the Evidence Act Cap 6 which providcs that the burden as to the existence of a particular fact lies on the person who wishes court to believe in its existence, unless it is provided by law the proofofthat fact shall lie on any particular person who allegcs that fact. - 1s Counsel submitted that the Prosecution case can only succeed on the strength of the Prosecution case and not on the weakness of the defence. See Sekitoleko vs, Uganda (1967) EA 531, Woolmington vs. DPP (1965) Ac 462. Counsel submitted that by their plea ofnot guilty, the accused persons put in issue every essential ingredient of the offence with which they were charged and the zo prosecution has the onus to prove each of the ingredients olthe olfence beyond any reasonable doubt.

It was the submission of counsel for the Appellants that the trial judge erred in law and in fact. He failed to evaluate the evidence presented before him on record and thereby arrived at a wrong decision to convict the Appellants thus zs occasioning a miscarriage ofjustice.

Counsel submitted that the trial judge stated that 'the evidence on record does not connect each and every accused person and every count". The trial judge having found so he ought to have held that the prosecution had f'ailed to prove

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5 by evidence each and every ingredient of the offence against the accused persons but instead the judge chose the doctrine of common intention to convict the Appellants.

Additionally, counsel submitted that the trial judge therefore misdirected himself and misapplied the principle of common intention to thc facts to find the accuscd persons guilty and to convict them on the indictment. He argued that the participation ofevery person must be established.

Counsel further argued that the allegation and contention that two or more persons set out to prosecute an unlawful purpose in conjunction with one another and in the prosecution of that purpose an offlence is committed, each of them is

deemed to have committed that offence, is not good law. It provides a fenile ground for conviction ol innocent persons whose liability and participation has not been proven by evidence. Moreover, the essential ingredients ofeach offence the accused persons had been charged with are not the same and thereof lining each of them to take responsibility for actions of other persons is against the principles of criminal liability and the law. 15 20

Counsel submitted that the Appellants testified on the fact that they were not around whcn thc said offcnccs wcrc committed. A I stated that he was attcnding prayers that day and later in the day passed time at Palera trading centre and that they were arrested when they failcd to run away like others who did. The triat

Judge not only failed to consider but also to give weight to this cssential piece of unrebutted evidcnce that led to arrest of accused persons and the learned judge never considercd it to the prejudice of the accused persons. 25

Counsel submitted that for the case of A2, he had spent part of the day in his garden buming charcoal and for ,A.3 at the time he was arrested, he had gone to

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5 see his sister in law to see the land which had been given to her. I]ach olthese accused persons raised the defence of alibi which they are under no obligation to prove.

Counsel submitted that the case for the prosecution had many inconsistences and contradictions that went to the root ol the casc. The trial judge ignorcd thcir weight and wrongly evaluated them, had he properly and adcquately addressed his mind to them he would havc probably come to a different conclusion.

Counsel submitted that PW2 stated that the accused pcrsons werc about 30 in number as stated by PW4 and that when the incident happened that they took his goats when he was about 50 -60 meters on which he changed to 60-70 meters on

cross examination. I-le stated that he did not know the person who took his goats and indeed there is no person who was specifically implicated in the taking of the goats. 15

Additionalty, counsel submitted that the learned Judge relied on inadequate evidencc to hold that the Prosecution had discharged burden to prove essential

elements of the offence of robbery such ownership and asportion. It is submitted that the possibility that the animals were untied and escaped on their own was not explored. 20

Counsel submitted that ifthe trial Judge had properly and adequately addressed his mind to these facts, He would have come to a different conclusion that the

element of ownership of property and their asportion as an essential element of the offence oftheft or aggravated robbery has not been established by evidence. 25

Counsel further submitted that the essence of the offencc of aggravated robbery is not only taking of property but rather taking the property in possession of

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5 another by use ol force or threat of fiorce or violence and or putting the victim rn state of lear by use of a deadly weapon, which has no1 becn establishcd here.

On identification, counsel submitted that PW Ocan Wilson said he knew Al and A.2 but did not know A3. However, in cross examination when asked to identify and distinguish A1 and A2 he failed.'l'he witness instead said he knows Al but does not know . A.2 and r\3 and went further to say that he only knew Al on the

day ofthe alleged incident.

Counsel submitted that much as the incident is alleged to have taken place at day time the conditions for proper identification did not obtain due to the abrupt nature of the events that gave no sufficient time for identification of the assailants. 'l'he witnesscs were all far from the assailants ranging lrom 60-70 meters, in a garden that has bushes and crops, which hindered them seeing the Appellants.

Counsel submitted that these were major contradictions which the trial judge failed to cvaluatc the cvidence thus arriving at an crroneous decision which occasioned a miscarriage of justice to the Appellants. Counsel cited Alfred Tajar vs. Uganda Criminal Appcal No. 16711969 and Kazarwa vs. Uganda, Criminal Appcal No.l7 of 2015.

# Submissions of Counscl for thc Rcspondcnt.

Counsel submittcd that the leamed trial judge so rightly cvaluated thc evidcnce presented before him thereby arriving at a correct decision. Counsel submitted that PW2, PW3, PW4 and PW5 recognised the three Appellants. 'I'he Judge then cautioned himself against reliability of the evidence of visual identification made by each o[the witnesses although the cvents had occurred during day time also considering that all the accused had raised the defence of alibi. Counsel stated 25

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Counsel argued that the trial judge looked at the chaotic and violent nature ofthc attack and whether it could have hampered correct identification. Counscl submitted that the trial court observed that the offences were committed in broad

- day light, out in the opcn, in close proximity of the identifying witnesses who had ample opportunity to see the accused sincc it was a prolonged attack and some of the witnesses knew the accused before the date. '[he Judge in conclusion found that the evidence of identifrcation was free from the possibility of error and found that each of the accused wcre squarely placed at the scene of crime as 10 - an active participant in one or another of the counts. Counsel cited Abdulla Nabulere and others v Uganda COA No.09 of 1978. 15

Counsel submitted that in thc instant case, the quality of identiflcation was good, the crime was committcd in broad day light, at close proximity, thc Appcllants were known to the witnesses

Counsel citcd Obwalatum Francis v Uganda, SCCA No.30 of 2015, thc court cited Wanjiro Wamiro v. R (1955)22 E. A. C. A 521, where it was held that it is immaterial whether the original common intention was lawful so long as the unlawful purpose develops in the course of cvents. 20

## Consideration of Court

,q According to the evidence on record the Appellants and the others at large were indicted on 9 (nine) counts. 'l'he trial Judgc tricd thcrn on all thc counts. IIe howevcr acquittcd the Appellants on Counts 3 and 8 of the offence of Arson contrary to section 237 (a) ofthe Penal Code Act.

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5 The trial court however found them guilty in respect to counts I and 2. Each Appellant was convicted of the offence of aggravated robbery contrary to Sections 285 and 286(2) ofthe Penal Code Act. Court also found the Appellants guilty in respect of counts 4,5,6 ,7 and 9 where each party was convicted of the offence ofArson contrary to section 237 (a) ofthe Penal Code Act in respect of

counts 4,5,6,7 and 9. 10

> In evaluating evidence on record, we will first consider count I and 2 which is in respect of Aggravatcd Robbery. For the Appellants to be convicted of the offence of aggravatcd robbery the prosccution had the burden of proving the essential ingredient against the Appellants beyond reasonable doubt. See

Woolmington vs. DPP [19351 UKHL. 15

> According to Miller vs. Minister of Pensions 119471 2 ALLER 372, proof beyond reasonable doubt does not mean proof beyond a shadow ofa doubt.

> Accordingly, in the circumstances of this case the prosecution on count I and 3 ought to havc proved beyond rcasonable doubt:

- L Theft ofproperty belonging to another 20 - 2. Use of threat or violence during the theft - 3. Possession of a dcadty wcapon during thc commission of thc theft. - 4. The accused participated in the commission of the theft.

The prosecution averred that the 3 Appellants and others still at large, on the 15th August 2015, at Angaba Locer village in Zombo District while armed with bows, arrows and pangas robbed Occn Wilson and Warom Charles of their properties namely 6 goats and I pig worth 600,0001:,apair of shoes and a T-shirt worth 38,000/:. 25

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# s Proof of thcft

Theft of thc items in the indictment was not contested. According to Section 254 Penal Codc Act (l']CA), thcft is comrnitted whcn a pcrson liaudulcntly and without claim olright takes anything capable olbcing stolcn. In the lowcr Court the Prosecution relied on the evidence of PW2, PW4 and PW5.

- PW2, averred that the Appellants took the goats and one pig, during cross examination he further stated that they looked for them but they could not find them. While PW 4, stated that the Appellants picked his jacket. PW5 stated that the Appellants started picking goats from his ncighbors, when thc Appcllants left the goats were missing and could not be found. I Iis groundnuts were also taken. 10 - 15 The items in count l, of goats and one pig wcre valued approximately at 600,000/: and items in count 2,apair of shoes and T-shirt werc worth 38,000/: are capable of being stolen. We are convinced that this ingredicnt was satisfied beyond reasonable doubt

#### Use ofviolence during thc robbery

According to the prosecution evidencc, allthe witncsses PW2, PW3, PW4, PW5 and PW6 testified that there was use ol violence during the attack. On this ingrcdient the trial court held that: 20

> "in prool'o[ this clcmcnt, thc coun was prcsentcd with thc oral tcstirnony of l'W2 Ocan Wilson who said thc assailants shot arrows at thcm and scl houscs on fire. PW3 Afworoth Maurccn tcstilicd that shc was cut with a panga and showed a scar to court. PWI Okcllo Ronald examined her on 22nd August 2015 and his rcport P.[r. X- l, confirmed cxistcnce of that injury. PW4 Warom Charles tcstificd that it a onc Naal shot hirn with an arrow. PW 5 Jawiambc

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Morris said thc assailants shot arrow at thcm and sct houscs on firc. llc also witncssed thc afiack on PW 3 and her baby"

Thcrc was indeed use of violence during the offence and we conclude that this ingredient was also proved to the required standard.

#### Usc of a dcadly wcapon

10 It is providcd undcr Section 286(3) (a) (i) olthe Pcnal Codc Act that,

"l)eadly wcapon" includcs any instrumcnt madc or adoptcd to ............stabbing......or any imitation ol such instrumcnt which whcn uscd for olfcnsivc purposes is capablc of causing death or grievous harm or is capablc of inducing fear in a person, that it is likcly to cause death or gricvous harm..."

According to PW 2, PW3, PW4, and PW5, all tcstified that the assailants werc armed with bows, arrows and pangas. In her testimony P3 testificd that she was cut with a panga and an attcmpl was made on hcr baby. PW4 tcstified that he was shot with an arrow. 'l'hcre is no doubt that pangas and Arrows are a deadly

20 weapon as thcy arc made fur cutting and picrcing and can be adapted for stabbing See Wasajja Vs. Uganda ll957ll EA l8l (CAK). In Mudasi Vrs. Uganda [99911 EA, 193 court held that a club was held to be a deadly weapon

We thereforc concur that the trial Court rightly found that this ingredient was proved beyond reasonable doubt.

### 25 Proof of participation of thc accuscd persons

In his evidcnce PW2, testillcd that he kncw Al and A2 but he did not know A,3. PW 3 on the other hand testified that shc knew Al and she did not know the others. Whereas PW4 averred that he knew Al and A2. IIe additionally stated 11 lPage

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5 that Naal was among them. I Ie also knew A1 and A.2 before the incident. PW5 testified that he knew Al, A2 and A3. I'he evidence of thesc witnesses proved that the Appellants participated in said offence.

'l'he Appellants were acquitted on counts 3 and 8. Under this offence of Arson the prosccution has to prove beyond reasonable doubt that:

l. Setting fire to a building 10

- 2. l'hc fire is set unlawfully and willlully - 3. ]'he accused set the firc.

As we re-evaluate the cvidcnce on record, it is the role olthis Court to establish that the prosccution proved beyond reasonablc doubt that fire was set to a dwelling house. It must be proved that this was as a result of a deliberate act and not accidental. In this case there was the undisputed testimony of PW2, PW3, PW4 and PW 5 who testified that there was fire on the dwelling house. While analyzing the evidence the lrial court held that:

"in thc instant case, thcrc is no cvidcncc lo suggcst that thc firc was a mcrc inadvertent or accidcntal occurrcnce but rathcr a dclibcratc act. PW4 testificd that it was Al who lit thc fire. Pw4 Warom Charlcs and PW 5 Jawiambc gavc an cycwilncss account of how thc houscs werc sct on firc by thc assailants, starting with that of Oncn, then thcy continucd to lltc rcst. I,W2 tcslillcd that his housc, that of Obcmu Albert, Otwing Cwinyi Albert, Jawiambe and many other houses wcrc burnt. PW5 tcstified that n 3 gathcred clothcs that had bccn put out lo dry, threw them inside the house and sct it in firc. PW6 Obcmu Albcrt too tcstificd thal his housc was bumt down. Although in thc scvcn counts it was allcgcd thal houscs belonging to Okumu Malistcrs in Count 3, Jawiambc Moses in count 4, Obcmu Albcrt in count 5, Otwing- Cwinyi Albcrr in count 6, Occn Wilson in count 7, Afoyocan Maurine in count 8, and Waron 20 25 30

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5 Charlcs in count 9, thcrc is no evidcncc bcforc court in rclation to thc housc of Okumu Malistcrs in count 3 and that of Afoyocan Maurinc in counl 8"

The Court appropriately cvaluated this ingredicnt to thc satislaction olthe standard bcyond reasonable doubt.

Under thc sccond ingredient it is for the Appellants to provc that the fire was set unlawfully and willfully. Black's Law Dictionary defines the word willfully as "voluntary and intentional, but not necessarily malicior.rs. " The word unlawful is defined in the same dictionary as "violation of law, an illegality. " The prosecution must prove that there was deliberate act of setting of fire . This was elaborately handled by the triat Judge on page 8 and 9 ofthe Judgement and we find nothing to lault him. 10 15

Lastly, thc evidence implicating the Appellants in setting the firc must place thcm at thc scenc of the crime. All prosecution witnesses gavc direct cvidence of thc participation ol'thc Appellants in this olfcnce which was consistcnt among all the witnesses. The lower court also propcrly assessed the evidcnce of the Appellant's participation. We find that this was proved beyond reasonable doubt. On the issue of identification, it was counsel's submission that the circumstances were not favorable for proper identification of the Appellants. l-his court in Abdalla Nabulere and Other v Uganda (Criminal Application 9 of 1978) ll978l UGSC l4 (05 Deccmbcr 1978) held that: 20

"Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should wa rn himself a nd the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or ide ntificat io ns. The reason for the specialcaution is that there is a possibility that a mistaken witness can be a convincing one and that

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5 even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. lf the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger."

From the Above precedent, court set out the standard of identification. Court needs to establish the following:

- l. Warning himsclf and assessors on the spccial nccd to caution bcforc convicling - 2. Examine closcly the circumstanccs which idcntification arc made. - 3. I-ength of timc accuscd was undcr observation. - 4. Distancc - 5. Light - 6. Iramiliarity with the witncsses with the Appcllants. - According to the record ofAppeal at page I 0 and 1 1 ofthe judgement is evidence that the trial judge wamcd himsetf of the circumstances under which the attack was made. He noted that, "l have considered the chaotic and violent nature of the attack and whether this could have hampered correct identification." The trial Judgc evaluated the lact that the PW2 knew Al and A.2 beforc the attack. 20 - Whereas PW3 saw Al because the proximity of the attack with the panga. PW4 knew Al and A2 before the attack. Whereas PW5 observed A,3 unhang dry clothes and threw them into the house to be burnt. 25

With regard to light, PW 2, PW 3, PW4, PW5 and PW 6 testified that the attack was at approximately I I and l2 a.m. 'l'his mcans the oflenccs happened during

broad day light. It is thcrcfore not in disputc that this mattcr passed the test of idcntification laid down in Abdulla Nabulerc' c^se (Supra). 30

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- 5 'Iurning to the law of contradictions and inconsistenc ies, we agree with the submissions of counsel of the Appellant and Rcspondent on the law of inconsistencies. Counsel for the Appellant statcd that the trial court ignored the contradictions that went to the root of thc matter. - It is our observation that the Appellants did not point out any pieces of the prosecution evidence that were inconsistent in this matter. 'l'o the contrary, the prosecution was consistent and reliable. We therefore find no mcrit in this allegation by the Appellants counsel. 10

Consequently, it is our finding that grounds l, 2, and 3 lack merit.

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### 15 Submissions of counscl for the Appellants

Counscl lbr thc Appcllants submitlcd that the trial court aftcr giving rcasons for the sentcnce of arson went ahead to sentence them to five ycars imprisonment but without deducting the period of one year and six months thc Appellants spent on remand according to Article 23(8) of the Constitution of thc l{cpublic ol

20 Uganda 1995. Counsel citcd Byamukama Herbert vs. Ug. Criminal Appeal No.2l of 20I7 and Abele Asuman vs. Ug Criminal Appeal No.66 of 2016.

Counsel further submitted that the fact that the judge lumpcd a prison scntence of the 28 years imprisonment for two counts of aggravated robbery together with 5 years imprisonmcnt for the 5 counts of arson and ordered then to run concurrcntly, that makes thc combination of the scntcnccs irrcgular and unlawful thus being harsh and excessive in the circumstances.

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# 5 Submissions of Counsel for the Respondent

Counsel submitted that the sentences were not excessive in the circumstances. He submitted that the evidence was properly evaluated to arrive at the sentence handed down to the Appellants.

On the offence of arson counsel conceded that the trial court did not take into consideration the years spent on remand.

He however citcd Karisa Moses vs. Ug. SCCA No.23 of 16, wherc court cited Kiwalabye Bcrnard vs. Uganda Criminal Appcal No. 143 of 2001, whcre court hcld that the Appellant court will be hesitant to intcrfere with discretion of court in sentencing.

we disagree with Counsel for the Appellant that the scntences were lumped together. l'he trial judge handled count by count. 15

We however agree with the submissions of counsel lor the Appellant that the trial judge did not take into considcration the I year and six months spent on remand while considering the offence of arson. 'this is contrary to contrary to

Article 23(8) olthe Constitution. Having failed to do the said sentence is illegal and warrants the interfercncc of this court. 20

The sentence of five years is therefore reduced from 5 years after deducting the period spcnt on remand to 3 (Three) years and 6 months.

### Ground 5

Counsel for the Appellant submitted that Plea taking is a lundamcntal principte of a fair trial as enshrincd under article 28(3 Xb) ol' the Constitution which provides that everyone charged with a criminal olfence shall be informed 25

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5 immediately, in the language that the person understands of the nature of the offence.

Counsel submitted that section 60 of the Trial on Indictment Act, cap 23 provides for mandatory taking of Plea by accused persons to the indictment. Counsel submitted that the Appellants were charged with two distinct offences:

- I. 2 two counts of thc offcncc of Aggravated robbcry conlrary to scction 285 and 286 and - 2. 7 counts of thc offencc olArson, contrary to scction 327 olthc Pcnal Codc Act and 9 counts.

Counsel submitted that the record shows that the accused persons pleaded to count one of the indictment only, which was read and explained to them in Alur language. He further submitted that the accused persons did not plead to the rest

of the counts 2, 3, 4, 5, 6,7,8 and 9 neither were they explaincd to the accused persons. 15

Counsel submitted that this was a major incurable procedural irregularity in the trial process that rendered the proceedings a nullity and occasioned an injustice to the Appellants as evidence was led against them and subsequently convicted for an offence they had not been charged.

Counsel further submitted that procedure of plea taking is laid down in the case of Adan vs. Republic, (1973) EACA. One of the underlying principles is that, where a charge or indictment contains several counts the accused must be asked to plead to them separately and this was not followed, as none of the Appellants pleaded separately.

Counsel submitted that in Rev father Santos Wapokora vs, Uganda, Criminal Appeal No. 204 of 2012, it was held that the appellant was convicted on an indictment to which he never pleaded, and the trial was accordingly a nullity.

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$\mathsf{S}$ That the proceedings of the trial were also set aside, and the conviction and the sentence too were quashed.

Counsel asked that these proceedings be quashed.

Counsel for the Respondent did not respond to this ground.

## Consideration of Court.

#### **Section 60 of the Trial on Indictment Act provides that:** 10

"The accused person to be tried before the High Court shall be placed at the bar unfettered, unless the court shall cause otherwise to order, and the indictment shall be read over to him or her by the chief registrar or other officer of the court, and explained if need be by that officer or interpreted by the interpreter of the court; and the accused person is entitled to service of a copy of the indictment, he or she shall object to the want of such service, and the court shall find that he she has not been duly served with a copy"

This was re-echoed in **Adan vs. Republic**, [1973] **EA 445** at page 447, The East African Court of Appeal set down a procedure and held that:

20 "When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can peak and understand. The magistrates should then explain to the accused person all the essential ingredients of the offence charged. if the accused person, then admits all those essential elements, the 25 magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrates should 30 record a change of plea to "not guiltily" and proceed to hold a trial."

From the record it is evident that the learned trial Judge followed the procedure laid down in **Adan v Republic** (*Supra*) during the plea taking by the Appellants.

Groor Kurty.

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- 5 Though it must bc appreciated that the cmphasis of this procedure is in regard to accused persons who have pleaded guilty. This was not the case in the circumstanccs in this case. It is indicated that the indictment was read and explained to the accused pcrsons in Alur, and thcy all denied the facts stating that they are lies. A Plea ofnot guilty was entered and court proceeded on trial. - Criminal proceedings have serious implications on the life and liberty of persons accused depcnding on the offence charged. Criminal procedure is designed with safeguards in such a way that only the guilty should be convicted. Some of the safeguards include the detailed Plea taking process. 10 - We acknowlcdge in thc circumstanccs of this casc that the indictment was read in an omnibus way contrary to the practice of the accused persons pleading to each count as the practicc is in criminal proceedings. Ordinarily this would be fatal if the Appellant had pleaded guilty to the indictment. 15

However, this case is different because the Appellants pleaded not guilty to the indictment and a Plea ofnot guilty was entcred on each of the accused persons.

The accused persons had the opportunity to confront and challenge the prosecution evidcnce against them. During the trial the Appellants had the opportunity to make submissions to persuade the court that they are innocent as regard to each count.'l'hcy were given oppo(unity to call evidence against the prosecution. l'he burden to prove the case bcyond rcasonable doubt does not rest upon them but the prosecution. 20 25

Given all the safeguards during the trial, we are of the view that the failure of the trial court to give the Appellants an opportunity to plead on each count would not change the outcome of thc case since their plea would have been the same plea of not guilty.

Cycntl

19 lPage

5 A look at the record ofappeal reveals that the trial court led evidence against all the counts and the Appellants were givcn an opportunity to dispute this evidence through cross examination. It is our opinion that the Appellants did not suffer any miscarriage of justice because of this omission during trial. The results would havc becn different if the Appcllants had bcen convicted on a plea of guilty, this would have an implication of allecting the right to fair trial. Which is not the case in this matter. In this case the Appellants enjoyed their right to a fair trial through a full trial. 10

Wc therefore do not agree that these proccedings should be quashed. We find that this ground fails.

- 15 It is our linding that thc Appeal lacks mcrit. - I . -l'hc conviction of the lower court is uphcld - 2. 'l'hc sentence of the lower coun is upheld

### Wc so hold.

a'5t'- Dated at Arua this ol' ,rb

### CHEI]ORIONI}ARISIIAKI

JUSTICE OF' AI'I'I,]AI,

20 | I'.r 11 r'

q4,M

Mu ger ..

# **MONICA MUGENYI**

## **JUSTICE OF APPEAL**

... $\blacksquare$

$\mathsf{S}$

$10$

**CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

$21$ | Page