Onen v Uganda (Criminal Appeal 214 of 2024) [2025] UGCA 139 (14 May 2025)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN MASINDI

[Coram: Dr. F. Zeija, DCJ, C. Gashirabake and K. K. Katunguka, JJA]

## **CRIMINAL APPEAL NO. 0214 OF 2024**

#### **BETWEEN**

...................................... **ONEN TONNY...................................**

#### **AND**

RESPONDENT UGANDA...................................

(Arising from the decision of the High Court of Uganda at Masindi Ky Rugadya Atwooki J.)in Criminal Case No. 0060/2013 delivered on the 24<sup>th</sup> day of August 2018)

#### JUDGMENT OF COURT

#### **Introduction**

- [1] The appellant and two others were indicted with three counts of aggravated robbery contrary to the then Sections 285 and 286(2) of the Penal Code Act (Cap 120). The particulars of the offences are that the appellant and others still at large on the 3<sup>rd</sup> day of October, 2012 at Kijura Town in the Masindi District being armed with two guns and a knife robbed Lubowa Asuman of 35 pieces of New phones in different types, airtime of different Networks, Sim cards of different networks all valued at Shs. 5 million and at or immediately before or immediately after the time of the said robbery were in possession of dangerous weapons; to wit two guns and a knife. - [2] On Count two, that on the same day and place, the appellant robbed Mugisha Gildbert of 200 Pieces of New phones in different types, airtime of different Networks, a Phone charger and Phone seats, all valued at 20 million Ug. Shs under similar circumstances and in the 3<sup>rd</sup> count in the same transaction also robbed Atugonza Moreen of a Phone

Mm

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with a commissioned MTN line No. 0772478408, a bag with 7,000/= all valued at 100,000 Ug. Shs.

- [3] During the trial, the appellant pleaded not guilty but was convicted upon a full trial on the 2<sup>nd</sup> count since the prosecution failed to adduce evidence of the 1<sup>st</sup> and 3<sup>rd</sup> victims. The appellant was sentenced to 20 years' imprisonment after deducting a period of 5 years, 10 months and half spent on remand. The appellant was aggrieved with the decision of the trial Court, hence this appeal on three grounds that; - 1. The learned trial Judge erred in law and fact in failing to properly evaluate the prosecution evidence, thus reaching a wrong decision. - 2. The trial Judge erred in law and fact when he considered the prosecution evidence in isolation from that of the defence. - The sentence of 20 years' imprisonment imposed on the appellant was 3. manifestly harsh and excessive in the circumstances.

### **Representation**

[4] The Appellant was represented by Ms. Suzan Zemei on State brief. The Respondent was represented by Ms. Angutoko Immaculate, Chief State Attorney.

# **Submissions by Counsel for the Appellant**

- [5] Counsel considered the role of this court as the first appellate Court, stating that this court should reconsider all material evidence that was before the trial court and making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Counsel cited Baguma Fred vs Uganda, SCCA 7 of 2004 and Kifamunte Henry vs Uganda, SCCA 10 OF 199. - [6] Counsel argued grounds one and two concurrently because they all concern the evaluation of evidence on record. Counsel submitted that the prosecution had to prove

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that there was theft, use or threats to use actual violence at or immediately before or immediately after the time of stealing, use of a deadly weapon, or threats to use a deadly weapon before or after and that the accused participated in the said robbery.

[7] It was argued for the appellant that the theft was not proven by the prosecution against the appellant, because the items that were recovered were found against the other accused persons and not the appellant. Furthermore, counsel argued that the 59 phones were not exhibited and the same could not have been relied on against the appellant to find him guilty of this ingredient.

Additionally, Counsel submitted that the two bags, Nokia phones and sandals were not among the items as per the testimony of the complainant, PW2.

- [8] Counsel submitted that for theft to be proved against the appellant, even on the mild assumption of corroborative evidence, all the items recovered from the appellant were not sufficient to prove the ingredients of theft against him. He stated that there were phones recovered from someone else's shop and this person was not called as a witness. Counsel concluded that this ingredient was not proved beyond reasonable doubt. - [9] Regarding violence, it was submitted that for this ingredient to be successful, the violence should have been directed at the complainant. It was argued that one cannot be convicted of violence imposed on a third party. It was argued that the robbery happened at the neighbours shops, for fear, most people ran away for their lives. It was contended that the rest were just speculations. Counsel submitted that when the PW2 came back after one hour, he was not harmed mentally or physically and threat of violence had been directed towards him whatsoever, neither before nor after the theft.


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- [10] Additionally, Counsel stated that the evidence of PW3 of finding broken glass all over the place was not sufficient evidence for violence. It was argued that in burglary, violence is directed towards a person and not property. He submitted that the cartridges relied on by the trial Judge were not those of the gun exhibited and were not conclusive enough to prove that the gun exhibited, as per the testimony of PW4, was the same that discharged the cartridges. - [11] It was concluded that the trial Judge erred in law and fact when he ignored these facts and found the accused guilty, which would not have been the case if he had analysed the evidence properly. - [12] Concerning the use or threat of use of a deadly weapon, counsel cited the definition of use of violence under section 285 of the Penal Code Act. Counsel submitted that PW2 did not prove that they used or threatened to use a deadly weapon against any person or property in order to obtain the stolen property. Counsel faulted the trial Judge for relying on DW 2's evidence to fix the appellant on the scene of crime. - [13] Regarding the participation of the appellant, counsel submitted that the appellant testified that he was home with his family on 04<sup>th</sup> October, 2012 and that this was corroborated by the evidence of PW3 and PW7 who confirmed that on the 04<sup>th</sup> October, 2012 they were led to the home of the appellant whereby they found him with his family and subsequently arrested him. counsel argued that there was no evidence of movement of the appellant on the day the offence was committed. Counsel contended that all the prosecution relied on was the property found at the appellant's workplace. - [14] Counsel contended that the charge and caution statement was done without the authorization of the appellant. He argued that the appellant was arrested from his

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family, taken to Bweyale police station, and transferred to Kiryandongo police in the company of over ten officers. Counsel argued that these events, your lordship, are the definition of mental disturbance to any human being. It was prayed that this court finds SO.

- [15] Turning to ground 3, counsel submitted that the sentence of 20 years' imprisonment after deduction of the five months spent on remand was excessive. Counsel submitted that it is trite law that the appellate court is not to interfere with the sentence by a trial court which has exercised its discretion, unless the exercise of the discretion is such that it results in the sentence being imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores to consider an important matter or circumstance which ought to be considered while passing the sentence or where the sentence imposed is wrong in principle. Re: Kamya Johnson Wavamuno vs Uganda, Criminal Appeal No. 16 of 2000 and Kiwalabye vs Uganda, SCCA No. 143 of 2001. - [16] Counsel submitted that the appellant was not found at the scene of the crime, nor did he engage in any violence. Counsel contended that the appellant was not part of the arrangement rather, he was just found with the bag that had sandals and 2 phones, but the remaining 56 phones were not exhibited by him.

Counsel also submitted that the sentence was manifestly harsh.

# Submissions by counsel for the respondent

[17] Counsel was alive to the role of this court as the first appellate court, as was held in Henry Kifamunte vs Uganda, Supra.


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- [18] Counsel raised two preliminary objections. The first preliminary objection is that the appellant was sentenced on 24<sup>th</sup> August 2018, pursuant to section 28 of the Criminal Procedure Code Act. He was required to give notice within 14 days from the date of sentence. The notice of appeal was signed by the appellant on 20<sup>th</sup> December, 2023 and received by the court registry on 25<sup>th</sup> January 2023. The appellant therefore is required to seek leave of this Honourable Court to appeal out of time. - [19] It was contended that grounds one and two of appeal offend the provision of Rule 66(2) of the Judicature (Court of Appeal Rules) Directions in as far they fall short of pointing out the specific point of law or fact that the trial Judge is being faulted for. Counsel cited Sseremba Dennis vs Uganda, CACA No. 480 of 2017 and Mugerwa John vs Uganda, CACA No. 375 of 2022, where this court struck out the grounds of appeal for not being concise. - [20] Counsel submitted that at the reading of the 1<sup>st</sup> and 2<sup>nd</sup> grounds of appeal, leaves one wondering as to which specific ingredient or particular evidence the learned trial Judge is being faulted for. Counsel invited this court to strike them out. - [21] Turning to the merits of the appeal, counsel argued grounds one and two distinctly. Regarding ground one, counsel argued that the trial Judge properly evaluated the evidence on record and reached a correct position of convicting the appellant for aggravated robbery in Count 2. Counsel submitted that during the trial, the appellant did not dispute other ingredients save for his participation. Counsel cited the submissions of the appellant's counsel at the trial, where he stated that;

"My lord, to the effect we concede to the fact that there was theft, we do also concede to the fact that there was a deadly weapon, to wit, a gun, but we do contend the participation of the accused person was not properly made out by the prosecution."

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- [22] Counsel invited this court to re-evaluate only the evidence regarding the ingredient of the participation of the appellant. Counsel acknowledged that the evidence against the appellant was purely circumstantial, which included the evidence of the recovery of stolen items in his possession, he rendered information that led to recovery of more of the stolen items, his own admission through the charge and caution statement and his conduct after the commission of the offence. - [23] It was submitted for the respondent that, PW2 testified that he fled that evening when the thieves came. And when he came back after an hour, he found 200 of his phones had been taken and many things damaged. Counsel submitted that in his testimony, PW2 stated that the police called him to say that they had recovered some of the phones from the suspects. He testified that he was given back 83 phones and 56 phones which he was given a week later. Counsel argued that this evidence was corroborated by the evidence of PW3, who testified that when they arrested the suspects, Okello identified the appellant whom they proceeded to arrest. - [24] Counsel submitted that the evidence was not discredited during cross-examination and corresponds with the confession in the appellant's charge and caution statement, which was admitted after a trial within a trial. Counsel also submitted that the testimony of PW7 corroborates that of PW3 regarding the recovery of some of the stolen items. - [25] Counsel, cited Section 29 of the Evidence Act to the effect that any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of that information wither it amounts to a confession or not, as relates distinctly to the fact thereby discovered, maybe proved. Counsel submitted that this applied to the appellant because he gave information that led to the recovery of some of the stolen property and he was found with stolen property.


Page 7 of 13 - [26] It was further contended for the respondent that circumstantial evidence on record places the appellant at the scene of the crime and it points to nothing but his participation in committing the offence. Counsel cited Amis Dhatemwa alias Waibi vs Uganda, SCCA No. 023 of 1997, cited in Jagenda John vs Uganda, CACA No. 001 of 2011, where Ssekandi J found that it was true to say that circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving facts in issue quite accurately; it is no derogation of evidence to say that it is circumstantial. It was further held that circumstantial evidence should always be narrowly examined, only because evidence of this kind may be fabricated to cast suspicion on another. That it was important before drawing the inferences of the appellant's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which could weaken or destroy the inferences. - [27] It was submitted further that whereas the appellant put up a defence of denial and called DW2 who earlier pleaded guilty to charges in the same truncation, counsel contended that the appellant's defence was destroyed by prosecution evidence and that there was no co existing circumstances which weaken or destroy the inference of the appellant's guilt, that the exculpatory facts are incompatible with innocence of the appellant and incapable of explanation upon any other hypothesis than that of guilt. To support his submission, counsel cited Simon Musoke vs Uganda, (1958) EA 715. - [28] Turning to ground two, Counsel submitted that the trial Judge considered both the prosecution and defence evidence on record. Counsel submitted that even though DW2 in his testimony in defence of appellant attempted to exonerate him, he was discredited during cross-examination when he acknowledged his confession statement that was subsequently admitted as prosecution exhibit. Counsel submitted that in his charge and caution statement, dw2 told police that on the fateful day, he was in the company of Laju David, Apila Thomas, Onen Tonny and Okot David, when they sought to commit

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aggravated robbery. Counsel submitted that this goes to prove that DW2 was lying to the Court in defence of the appellant, and that the prosecution had destroyed his defence by adducing overwhelming circumstantial evidence that placed him at the scene of the crime.

- [29] Turning to ground three, Counsel submitted that sentencing is a discretion of a trial Judge and an appellate Court will only interfere with the sentence imposed by the trial Judge if it acted on a wrong principle or overlooked some material facts or if the sentence is manifestly harsh and excessive in view of the circumstances of the case as it was held in the case of Kyalimpa Edward vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995 and Kiwalabye Benard vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001. - [30] Counsel submitted that the trial court fully complied with the requirements under Article 23(8) of the Constitution. Regarding sentences of similar circumstances, counsel cited Byaruhang Akot vs Uganda, CACA No. 078 of 2010, where the court found that the sentencing court is bound to follow the principle of parity and consistency. Counsel cited Kasozi Lawrence vs Uganda, SCCA No. 13 of 2009, where the Supreme Court upheld a life sentence imprisonment for simple robbery of a motor vehicle. In Bakubye Muzamiru and another vs Uganda, SCCA No 56 of 2015, in which the appellants were convicted of murder and aggravated robbery and they were sentenced to 30 years on the count of aggravated robbery. In Ojangole Peter vs Uganda, SCCA No. 34 of 2017, the Supreme Court found a sentence of 32 years' imprisonment for aggravated robbery to be legal and appropriate. In Guloba Rogers vs Uganda, CACA No. 57 of 2013, this court considered a sentence of 35 years on a count of aggravated robbery as appropriate. In Basikule Abdu vs Uganda, CACA No 516 of 2017, the court upheld a sentence of 20 years as appropriate. And lastly, in Twesigye Joseph vs Uganda,

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CACA No. 0059 of 2014, where this court upheld the sentence of 20 years' imprisonment.

[31] Counsel prayed that this court finds that the sentence of 20 years' imprisonment was appropriate.

## **Consideration of the Court**

## **Role of the First Appellate Court**

[32] Under Rule 30(1) of the Judicature (Court of Appeals) Directions, SI 13-10, the duty of this court, as the first Appellate Court, is to re-evaluate the evidence on record and come to its own conclusions. This was re-echoed in Henry Kifamunte vs Uganda, (supra). The court held that:

"We agree that on a first appeal, from a conviction by a Judge, the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial Judge. The appellate court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it.

When a question arises as to which witness should be believed rather than another and that question turns on manner and demeanor, the appellate Court must be guided by the impressions made of the Judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanor, which may show whether a statement is credible or not, which may warrant a court in differing from the Judge even on a question of fact turning on the credibility of a witness, which the appellate court had not seen. The

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Court of Appeal is precluded from questioning the findings of the trial Court, provided that there is evidence to support those findings, though it may think it possible or even probable that it would not have itself come to the same conclusion, it can only interfere where it considers that there was no evidence to support findings of fact."

[33] We shall consider the preliminary objections raised by counsel for the respondent. They could dispose of the whole appeal. Counsel for the respondent raised two preliminary objections, stating that the appeal offends Section 28 of the Criminal Procedure Code Act. The section provides that;

"Notice of appeal

- 1. Every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an advocate on his or her behalf and shall be lodged with the registrar within 14 days of the date of judgment or order from which the appeal is preferred. - $2...$ - $3. \quad \dots$ - $\cdot$ 4. $\cdot$ - $5.$ $\sim$ - The appellate court may, for good cause shown, extend the period mentioned in 6. subsection $(1)$ or $(3)$ ."

[34] The filing of the Notice of Appeal is the first step an intending appellant must do in the process of appealing, upon expiry of the fourteen days after delivery of the Judgment. Section 31 of the Criminal Procedure Code Act and Rule 5 of the Rules of this Court allow extension of time in which to file a Notice of appeal. According to the record of appeal, the judgment was passed on the 24<sup>th</sup> August, 2018. The Notice of appeal was presented at the Murchison Bay prison on the 19<sup>th</sup> December, 2023, received by the in charge on the 20<sup>th</sup> December 2023 and lodged in the High Court on the 06<sup>th</sup> day of April 2024. The appellant lodged the Notice of appeal after 3 years and 7 months, to be precise, without

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seeking leave to file the Notice of appeal out of time. There were no steps taken by the appellant to seek leave to appeal out of time. In Dr. Sheikh Ahamed Mohammed Kisuule vs Green Land Bank (in liquidation) SCCA No. 11 of 2010, Kitumba JSC Observed as follows:

"Additionally, where leave is required to file an appeal, such leave is not obtained; the appeal filed is incompetent and cannot even be withdrawn. See: Makhangu vs Kibwana [1995-1998]1 EA 175. It is not a mere procedural matter but an essential step envisaged by Rule 78 of the rules of this Court."

[35] We find that this appeal is incompetent for failure to seek leave to file the Notice of Appeal leave out of time. Therefore, this preliminary objection is sustained.

[36] The second preliminary objection was with regard to the first grounds of appeal, offending Rule 66 (2) of the rules of this Court. Which is to the effect that;

> "The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided."

[37] We are guided by the case cited by counsel for the respondent, **Sseremba Dennis vs** Uganda, (supra), in which this court pronounced itself on the need to comply with the rules of court when it struck out the grounds of appeal that offended rule 66(2) of the rules of this court. We find that this preliminary objection holds merit and find that grounds one and two offend the rules of this court.


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[38] With the foregoing, we find that there is no competent appeal before this court. We strike out the Notice of appeal for offending Section 28 of the Criminal Procedure Code Act and Rule 66 (2) of the Rules of this Court

## Decision.

- 1. The appeal is struck off the record. - 2. The appellant will continue serving his sentence.

We so Order

$\dots$ day of $\dots$ 2025 Dated and delivered at Masindi this ..........

Flavian Zeija (PhD) DEPUTY CHIEF JUSTICE

**Christopher Gashirabake JUSTICE OF APPEAL**

Ketrah Kitariisibwa Katunguka JUSTICE OF APPEAL

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