Walakira v Uganda (Criminal Appeal 5 of 2023) [2023] UGHCCRD 36 (26 July 2023)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MUBENDE

#### CRIMINAL APPEAL NO. 05 OF 2023; CRB 1149/2020

#### (ARISING FROM CRIM. CASE NO.137 OF 2021)

**KENETH WALAKIRA**

APPELLANT

#### **VERSUS**

#### **UGANDA**

# **RESPONDENT**

## BEFORE: HON. JUSTICE MOSES KAZIBWE KAWUMI

#### **JUDGMENT**

## Introduction

This Appeal arises from the Judgment of the Chief Magistrate of Mityana, His Worship Osaulo John Paul delivered on April 20, 2023 wherein the Appellant was charged with the offence of Threatening Violence C/s 81 (a) of The Penal Code Act

#### **Background**

It was alleged that on 23<sup>rd</sup> day of August 2020 at Mulambalo Village, Namungo Sub County in Mityana District, the Appellant with intent to intimidate or annoy Matovu Matia, threatened to cut the said Matovu Matia with pangas. The Appellant pleaded not guilty to the charges.

Upon hearing the evidence, the learned trial Magistrate found that the prosecution had proved its case beyond reasonable doubt that the Appellant uttered threatening words to the complainant, which frightened him. The trial Magistrate convicted and sentenced the Appellant to imprisonment for 18 months.

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## **The Appeal**

Being dissatisfied with both the conviction and sentence, the Appellant filed a memorandum of Appeal, appealing against both the conviction for being erroneous while the sentence as unfair and excessive.

The grounds of appeal in the Memorandum of appeal are that;-

- 1. The learned trial magistrate erred in law and fact when he failed to properly evaluate evidence on Court record, thus coming to a wrong conclusion. - 2. The learned trial magistrate erred in law and fact when he found the accused/Appellant guilty of the offence charged. - 3. The learned trial Magistrate erred in law and fact when he held that the accused person / Appellant uttered threatening words to the complainant which frightened him whereas not. - 4. The learned trial magistrate erred in law and fact when he held that the threat communicated was to injure Matia as it was done to Kamuhebwa who was cut to near death whereas not. - 5. The learned trial magistrate erred in law and fact when he held that the accused person directly participated in the commission of the crime whereas not. - 6. The learned trial Magistrate erred in law and fact when he held that the prosecution correctly discharged the burden cast upon it by proving all the ingredients of the offence of threatening violence. - 7. The learned trial magistrate erred in law and fact when he unfairly and excessively sentenced the accused to eighteen years (18 years) in prison without considering the period he stayed on remand.

#### Representation

At the hearing of this, Appeal M/S Zahura & Co. Advocates appeared for the Appellant while for the state/Respondent did not enter appearance. Consequently, the Respondent did not make any submissions and I am therefore of the opinion that this court should, proceed to determine the appeal without their input.

## Duty of the First Appellate court

This being a first appeal, this Court is under a duty to reappraise the evidence, subject it to an exhaustive scrutiny and draw its own inferences of fact, to facilitate its coming to its own independent conclusion, as to whether or not, the decision of the trial court can be sustained, See BOGERE MOSES V. UGANDA S. C. CRIM APPEAL NO.1 **OF 1997** where it was held that the first appellate Court has a duty to review the evidence and reconsider the materials before the trial judge.

The appellate Court must then make up its own mind, not disregarding the judgment appealed against, but carefully weighing and considering it. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. See PANDYA V REPUBLIC [1957] EA. 336.

## Summary of the evidence on record

P. W.1 Matovu Matia (the Complainant) testified he was riding a motor cycle when the Appellant stopped him. That the Appellant was with Mzee Muwanga and another. They were holding pangas. The appellant stopped him and the Appellant removed the key. The Appellant asked him as that "what are you doing or why are you provoking us" Don't you know that this land has issues. He testified that others came closer. They said that we are going to cut you like cut Kamuhebwa.

PW2 Richard Matovu testified that he knows the both the Appellant and the complainant. That the reason the reason for the Appellant was in Court could be because of Mrs. Cecilia Lwanga. That when PW2 went to buy some snacks, he found the Complainant on a seated on a motor cycle surrounded by many people including the accused That the Complainant tried to use his telephone but the Appellant removed it from him.

PW3 Mukasa Richard on the other hand testified that he had not seen what had happened between the Complainant and the Appellant while PW4 D/SGT Kakooza Minani No. 36175 testified that he had received a complaint from the complainant that the Appellant threatened violence against him. That he called the Appellant on phone and the Appellant responded positively and gave his side of the story. PW4 also testified that he found out that Cecilia Lwanga and the Appellant had a land wrangle, which they had not resolved.

In his defence, DW1 Walakira Kenneth who is the appellant in this case testified and his defence was a total denial. He testified that while he was at home in the garden he got a phone call from his brother who informed him that the complainant was cutting his trees. That he then saw the Complainant riding a motorcycle coming from the tree plantation and he called him and stopped him.

That upon inquiry as to why he was cutting the trees, the Complainant respondent that he was doing so on instructions from Cecilia Lwanga. That he explained to the complainant that the trees belong to him where upon the Complainant apologised, asked for forgiveness and the Appellant let him go.

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That he reported the Cecilia Lwanga, the Complainant and others to Mityana Police Station over the incident where upon the scene was visited by a police officer who took photographs and the cases are still pending at Police.

DW1 testified that the Complainant must have reported to Police because of the land wrangle with Cecilia Lwanga. In proof of the wrangles, the Appellant exhibited police reference forms were admitted as DEX-1, the bail bond forms as DEX-2 while the Court pleadings in Civil Suit No. 79 of 2014 were admitted as DE-X 3.

## Submissions of Counsel

Counsel for the Appellant argued the 7 grounds of Appeal concurrently and submitted that the trial magistrate erred in law and fact when he failed to properly evaluate the evidence. She submitted that Court misdirected itself on the controversies about the date when the alleged offence was purportedly committed.

That the question is whether a criminal charge can be sustained when the offence in the indictment was committed on 23/08/2020 yet the evidence pointed to 24/06/2020 as per the evidence of PW1. That PW3 on the other hand testified to 20/05/2020. She submitted that the evidence in a criminal trial must prove the offence in the indictment beyond reasonable doubt.

That the contradiction was material and creates doubt as to whether the offence was committed. She submitted that the trial Magistrate should have acquitted the Appellant. She further submitted that the trial magistrate also failed to take into account the fact that all evidence by the prosecution did not prove that the words uttered by the Appellant threatened the complainant.

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That the Complainant testified that the offence was committed on 24/06/2020 yet he reported to Police on 24/08/2020 after 2 months. That this is not conduct of a threatened person.

Counsel further submitted that even after the two months had lapsed, the Complainant was advised by a one Cecilia Lwanga to lodge the complaint yet the Appellant led evidence of a land wrangle between him and the said Cecilia Lwanga and produced evidence to that effect by way of police references.

That if Court had evaluated the evidence as a whole, it should have found that the case was a fabrication by Cecilia due to the land wrangle between them as confirmed by PW4.

Counsel further submitted that the Court also erred when it found that the Appellant had intentions to annoy the Complainant based on his opinion that the latter had cut down trees belonging to the accused who was annoyed and must have said the threatening words.

That the presence of pangas at the time was due to the Appellant's business of charcoal burning but not intended to threaten the complainant.

# The law and analysis of evidence

I have carefully studied and considered the Court record and the submission of Counsel for the Appellant. I am also alive to the standard of proof in criminal cases and the principle that the accused person should be convicted on the strength of the prosecution's case and not on the weakness of the defence save for a few statutory exceptions. See. SEKITOLEKO V UGANDA [1967] EA 531. If there is any doubt, created in the prosecution's case, that doubt is resolved in favour of the accused person. See WOOLMINGTON V DPP [1935] AC 462.

## The offence of threatening Violence.

Under Section 81 (a) of The Penal Code Act, the offence of threatening Violence is committed by any person who with intent to intimidate or annoy any person, threatens to injure, assault, shoot or kill any person, or to burn, break or injure any property.

The essential ingredients the prosecution had to prove beyond reasonable in a charge of Threatening Violence are;-

- Words or conduct that threatened another. - 2. The words or conduct were expressed with intent to intimidate. - 3. The accused uttered such words or engaged in such conduct.

# The words or conduct were expressed with intent to threaten another.

For the offence of threatening violence, mere words are not enough for an accused to be found guilty. The words must have been uttered under circumstances that reasonably tend to produce a fear that the threat will be carried out. UGANDA V RACHAM DANIEL [1977] 52. The law requires that the words must have been used in a way that constituted a believable threat. It must be shown that words were uttered or that at least there were gestures made that could clearly be interpreted as a threat. See **UGANDA V ONYABO STEPHEN AND 3** OTHERS [1979] H. C. B 39.

Considered as a whole, this evidence only shows that the words regarded as a threat were uttered but not under circumstances that reasonably tend to produce fear that the threat will be carried out.

Indeed an eyewitness to the event, P. W.2 Richard Matovu, testified that he found the Complainant seating on a motor cycle and he was surrounded by several people including the accused. It was thus incumbent upon the prosecution to prove that the Appellant is the one who uttered the words and that the words produced fear to the Complainant.

## The words or conduct were expressed with intent to intimidate.

PW1, the victim himself testified that it is Cecilia Lwanga who advised him to go to Police and this Cecilia Lwanga has a land wrangle with the Appellant and his father. This fact was also supported by the evidence of PW4, the investigating officer as well as PW2 who testified that the Appellant could be in Court because of Lwanga.

Aside from that, PW1 testified in cross-examination on page 4 of the record of proceedings, that the Appellant and the other people burn charcoal and that in their day today work, they use axes, pangas and machines.

The presence of pangas were a common occurrence and not new to the Complainant since he was aware that the Appellant and his workers use pangas. A person cannot be convicted of a crime based on an act that is accidental. Rather, the prosecution must prove that the accused acted intentionally, knowingly or recklessly.

The presence of pangas at the material time is because the Appellant was in the garden with his others workers who use pangas to carry out their day-to-day activities of charcoal burning. I therefore, find that the Appellants conduct was not expressed with intent to intimidate the complainant.

## The accused uttered such words or engaged in such conduct.

It is a cardinal principle of criminal law that for a person to be found guilty of an offence, his participation must be proved. See

The Complainant does not attest that the Appellant uttered the words. PW1 testified that "they said that we are going to cut you like we cut **Kamuhebwa**". The Complainant did not categorically express in his testimony that he was intimidated by the Appellant out of all the people who are said to have surrounded him.

Had the trial court properly directed itself, it would have found that this ingredient was not proved to the required standard.

I therefore find that the trial court came to the right conclusion when it found that the prosecution had proved beyond reasonable doubt that the evidence placed the appellant at the scene. However, this finding is inconsequential. Having found that the court misdirected itself on other findings, the appeal succeeds.

#### Order

I accordingly set aside the judgment of the lower Court and quash the conviction. The sentence is set aside and the Appellant is acquitted of the offence of Threatening Violence C/s 81 (a) of The Penal Code Act, he should be set free unless he being held on other lawful charges.

> Moses Kazibwe Kawumi Judge 26<sup>th</sup> July 2023