Uganda v Okethi (Criminal Session Case 167 of 1991) [1993] UGHC 40 (15 April 1993)

# THE REPUBLIC OF USAGDA

$\lim_{n \to \infty} \lim_{n \to \infty} \frac{1}{n} \le \lim_{n \to \infty} \frac{1}{n} \le \lim_{n \to \infty} \frac{1}{n} \le \lim_{n \to \infty} \frac{1}{n} \le \frac{1}{n}$

### IN THE HIGH COURT OF UGANDA AT KAMPILA

## CRIMINAL SESSION CASE MC. 167 OF 1991

UniMDA.

MANDEL CKETHI

C

| | | $\begin{array}{cccccccccccccccccccccccccccc} 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & $ | | | | | | | PROSECUTION | |--|--|----------------------------------------------------------------------------------------------------|-----------|--|--|--|--|--|-------------| | | | | $V$ TRSUS | | | | | | | | | | . | | | | | | | ACCUSED |

## BEFORE: THE HOM. MR. JUSTICE C. M. CKELLO

#### RULING:

The accused, Manuel Okethi was indicted in count 1 and 2 for murder contrary to section 183 of the Penal Code Act. In count 3 he was indicted for ageravated hobbery contrary to sections 272 and 273 (2) of the Penal Code Act.

All these offences were alleged to have been committed by the accused and others still at large on 13/4/89 at Patek-Agea Village in Nebbi District. It was alleged in the particulars of the offence in count No. 1 that the person murdered was Vincent Ogwoklwak and in count No. 2 that the person murdered was injele Odeya. Both these were allered to have been victims of the Robery. That they were shot dead with a gun by their attackers who later took a Hero Bicycle frame No. 248198 from the house of Vincent Cawek-Lwak and some house hold properties from the house of Anielo Odeya.

the prosecution case that it was

It was/in the night of 13/14/89 that a gun man struck at Patek-Agna village in Nebbi District. He attacked the houses of the deceased Vincent Ogwek-Lwak and that of the deceased Anjelo Odeya. The houses of the two were in the same court yard. The gun man shot dead these two deceased persons and tack from their respective house some properties. A Hero bicycle of Frame Mc. 248198 belonging to Vincent Ogwok-Lwak Was taken from his house. Some clothes and other house-bold properties

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were taken from the house of niele Odeya. The sun man went away with these properties. He was never recognised.

Hewever, relatives and neighbours who beard the cun shots went to the deceased's home and found their bedies lying in the compound with run shot wounds. / reported the matter to the authorities. after visiting the scene, the police authorised the burial of the deceaseds. No one was immediately suspected.

One year and four months later, the accused was allegedly found in the Republic of Zaire in possession of a Hero bicycle with the same frame number as that which was robbed from the deceased Vincent Ogwek-Lwak. The accesed had visited the home of the deceased Vincent Crwck-Lwak three days before the incident. He was arrested together with the bicycle in Zaire and brought to Usanda where he was eventually charged with these offences. He denied all the charges. He was subsequently tried.

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At the close of the case of the prosecution, Mr. Oyarmoi, counsel for the defence submitted on a No case to answer. That the prosecution had not made out a prima facie case to warrant putting the accused to his defence in all the three counts. Hence this Ruling.

It is pertinent to point out at this juncture that a prima facia case had been defined to mean such evidence on which a reasonable tribunal properly direction $\mathcal{L}$ : mind to the law and evidence could convict if no explanation was offered by the defence. This local principle was stated in the well known case of Shatt Vs. R. (1957) EA 332. Since then the principle has been consistently followed by this court. See Usanda Vs. Chyabe and Others (1979 HCB 39; Kayemba Vs. Uganda (1983) HCB 30 to mention but a few.

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- (a) there has been no evidence tn prove an essential element of allered offence or - (b) the evidence adduced by the prosecution has been discredited as a result of cross-examination or is so manifestly unreliable that no reaenable tribunal could safely convict on it. See <sup>R</sup> v. MeraHi MB 38/63-

With the above principle in mind. I shall now proceed to consider the merits and demerits of the submission in "his case.

- (A): To constitute the offence of murder contrary to section - <sup>183</sup> of the PCA, the following ingredients are essential:- - (a) that the viction is dead. - (b) that his death <sup>w</sup> s unlawfully caused. - (c) that the death wa s caused with malice aforethought. - (d) that the accused so caused the death of the deceased - (B) For aggravated Jobbery•contrary to sections 272 and 273 (2) of the Penal <sup>C</sup>ode Act, the followings are the essential elements;- - (a) that there was theft - (b) that <sup>a</sup> deadly weapon was used or its use was threatened in the course of the- theft. - (c) that the accused committed or took part in the commission of the thef.4;.

The thrust of Mr. Oyormci's submission was that the prosecution h-ad not proved an essential element of all the offences in the threcr-counts <. That this was the element «vnieh link/ the.accused with the commission of the offences. He argued that there was no evidence to link the accused with cnc commission of these offences. That the evidence adduced by the prosecution did<sup>1</sup> not prove the identity of the accused as the man who

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committed those offences. That these available avidence were weak and unreliable and ne reasonable tribunil properly directing its mode to the law and evidence could safely convict on them. He proyed that this court should find that no prima facie case was made out in all three counts and that the accused be acquitted in all the three counts.

For the state the learned RSA contended that a primia facie case $mas$ made out in all the three counts. That there was circumstantial evidence which pointed to the accused as the culprit in all the three offences. He relied on the evidence of PW4 and PW6.

He further submitted that the evidence adduced by the presecution had not been discredited as a result of cross-examination nor were they could so manifestly unreliable that ne reasonable tribunal / safely convict on them. He proyed that the submission of no case to answer be overruled and the Accused be put on his defence.

As has already been pointed out earlier in this Ruling, a prima facie case is made out where the prosecution has adduced evidence on which a reasonable tribunal properly directing its mind to the law and evidence could convict if the defence offers no explanation. The evidence must be of the type that can sustain a conviction.

In the instant case, the evidence relied on is that of PW4 and PW6. Genesio Keen PW4 was emphatic in his evidence that he did not reconnise the attacker. This in my view renders his evidence unholpful to identify the assailant of the deceased person. The only evidence which tended to link the accused with the remmission of these offence in count 1, 2 and 3 is that of Inyasic Themwa (PW6) the brother of the decensed Vincent Cawek-Lwak. The relevant pertian of his evidence reads MS follows:-

" I then started ^oin" round looking for the bicycl <> One day <sup>1</sup> wont to Zaire to PamuIla Village and I found the accused with the bicycle. I then contacted the authorities in \*aire and the accused was arrested with the bicycle. Wo found the bicycle at his home He was living with Son-'-a. His mother also lives at that home''\*

Without roincr into the credibility aspect of it, the above evidence saddled the accused with the possess!on of the stolen bicycle. The question of recency or recenness at which a person is found in possession of a stolen property depends on the ua'.vre of the property. Properties of common commercial nature that chance hands easily, the lapse of time may be shorter than for those rare properties which do not change hands quickly. One year and four months is in my view too long a period even for such properties like a bicycle. In could have changed many hands durin" that period.

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The evidence by PW6 further show/ that the accused had visite- the deceased Vincent Orwak-Lwak at the latter'shome three days before the deceased was killed. That he had come in army uniform.

It was argued that the above evidence coupled with the evidence of the accused being found in possession of the bicycle built up a primia facie case to justify putting the accused to his defence.

I am afraid I do not share that view because of the lapse of time. It is my view that no reasonable tribunal can safely convict on the above evidence in view of the lapse of time of one year and four months between the theft of the bieycle and finding it with the accused. With this -ap of time it is not reasonable to presume that the person found in possession of the good is the thief or receiver with guilty knowledge. The 'roperty could have changed many hands during that period. The visit of the accused three days before the incident ioes not necessarily show that he was the assaillant. it raises mere suspicion. This is not -nourrh

For the reasons which I have endeavoured to oive above, I find that no prime facie case had been made out by the prosecution in all the three counts. In those circumstances the accused shall stand requitted of the chancres in all the three counts.

G. M. OKELLO

JUDGE. 15/V95-