Court name
HC: Criminal Division (Uganda)
Judgment date
2 April 2019

Uganda v Ssekitoleko & 2 Ors (Criminal Session Case-2018/18) [2019] UGHCCRD 62 (02 April 2019);

Cite this case
[2019] UGHCCRD 62

                               THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION NO.18 OF 2018

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR

                                             VERSUS

  1. SSEKITO ALEX
  2. SERUNJOGI JUMA::::::::::::::::::::::::::::::::::::::::::::: ACCUSED
  3. ABDALLAH ALIAS JAAJA LUKANIKA

                   BEFORE: HON. JUSTICE EMMANUEL BAGUMA

                                              JUDGMENT

Ssekito Alex, Serunjogi Juma and Lukanika Abdallah alias Jaaja Lukanika were indicted with three counts of aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act and one count of attempted rape contrary to section 125 of the Penal Code Act.

Count I

It was alleged that Ssekito Alex, Serunjogi Juma and Lukanika Abdallah alias Jaaja Lukanika on the 4th day about midnight of September 2015 at Katale Busawula upper Jomayi Estates, Nsangi Sub-County in Wakiso District, robbed one Alex Asimwe of hard cash 2,300,000/=, one mobile phone, Samsung galaxy, two flat screen televisions, two laptops, one iPad all valued at 9,700,000/= and immediately before, at or after the time of the said robbery while armed, threatened to use deadly weapons to wit, axes, pangas, iron bars, sticks to the said Asiimwe Alex.

Count II

It was alleged that Ssekito Alex, Serunjogi Juma and Lukanika Abdallah alias Jaaja Lukanika on the 4th day about midnight of September 2015 at Katale Busawula upper Jomayi Estates, Nsangi Sub-County in Wakiso District, robbed one Evusa Diana of hard cash 1,800,000/=, one mobile phone, Samsung galaxy and assorted jewelry  all valued at 2,200,000/= and immediately before, at or after the time of the said robbery while armed, threatened to use deadly weapons to wit, axes, pangas, iron bars, sticks to the said Evusa Diana.

Count III

It was alleged that Ssekito Alex, Serunjogi Juma and Lukanika Abdallah alias Jaaja Lukanika on the 4th day about midnight of September 2015 at Katale Busawula upper Jomayi Estates, Nsangi Sub-County in Wakiso District, robbed one Kekoi Eveline of her mobile phone Samsung (Ordinary) valued at 50,000/= and immediately before, at or after the time of the said robbery while armed, threatened to use deadly weapons to wit, axes, pangas, iron bars, sticks to the said Kekoi Eveline.

Count IV

It was alleged that Ssekito Alex, Serunjogi Juma and Lukanika Abdallah alias Jaaja Lukanika on the 4th day about midnight of September 2015 at Katale Busawula upper Jomayi Estates, Nsangi Sub-County in Wakiso District, attempted to have unlawful carnal knowledge or sexual intercourse with Evusa Diana without her consent.

For the offence of aggravated robbery to be proved, there are four ingredients that have to be shown which include;

  • That there was theft of property.
  • That there was violence.
  • That a deadly weapon was used or threatened to be used.
  • That the accused participated in committing the crime

For the offence of attempted Rape to be proved, the essential ingredients requiring proof beyond reasonable doubt are:

  • Attempt to have Sexual Intercourse with the complainant.
  • That the complainant did not consent to that Sexual Intercourse
  • That it was the accused who attempted to have unlawful Sexual Intercourse with the complainant.

The state called six witnesses while the accused persons gave sworn testimonies and called no witnesses.

Whether there was theft of property?

In count two, PW1 Erusa Diana testified that she saw three people enter their bedroom with machetes, sticks and pangas and took two phones, laptops, television sets and other items.

In count one, PW5, Asimwe Alex testified that he saw people jumping into his compound and there was enough security lights. He stated that they were armed with axes and pangas and that they took cash, an iPad, 2 TV sets, 2 laptops and 2 mobile phones and jewelry from the wife.

PW2 stated that he was informed of the robbery and he went to the complainant’s home where he saw a ladder on the fence used by the thieves. He also stated that he saw the broken door glasses. PW4 stated that he drew a sketch plan at the scene of crime and managed to recover some exhibits like a broken door handle and a ladder used to climb into the compound of the complainants.

From the evidence above, I find that prosecution has proved beyond reasonable doubt that there was theft of property in count 1 and count II.

Whether there was violence?

PW1 stated that A1 grabbed her husband and put him down. She added that A2 grabbed her, kicked her in the stomach and slapped her. The medical examination PX2 showed that PW1 had healed injuries on the shoulder, arm and tenderness in stomach with pain.

PW5 stated that one man cut him with a panga on his arm and told him to lie down. The medical examination, PX1 showed that PW5 had scars and healed injuries on his arm and shoulders.

From this evidence above, I find that prosecution has proved beyond reasonable doubt that there was violence in count I and count II.

 

Whether a deadly weapon was used or threatened to be used?

Under Section 286 (3) (a) (I) of the Penal Code (Amendment) Act 2007, a deadly weapon includes “any instrument made or adopted for shooting, stabbing or cutting or any imitation of such instrument.”

PW1 testified that the robbers had axes, pangas, machetes and sticks and that there was enough light to see them.

PW2 also testified that the robbers had axes and pangas and that one cut him with a panga on his forearm. The medical report (PX1) showed that the cause of injuries was a sharp edged object.

It has therefore been proved by prosecution beyond reasonable that a deadly weapon was used in count I and count II.

 

Whether the accused persons participated in the robbery?

PW1 stated that she identified A3 in the compound who was talking back to her and that security lights were on. She also stated that the accused persons’ faces were not covered and when they entered the bedroom, the lights were on and she recognized them. She added that an identification parade was carried out, and she managed to identify the accused persons.

PW5 testified that he recognized the three accused persons. He stated that A2 was putting on a cap that only covered the top head, and he was the one who cut him with a panga. He added that A1 was putting on a black T-shirt and the lights were on.

On the other hand the accused persons denied committing the offence. DW1 Sekito Alex stated that on that fateful night of 4Th September 2015, he was in police custody in Ndeeba on other allegations of aggravated robbery. DW2 Serunjogi Juma stated that on that fateful night, he was at his work place at Kabowa Bakery. DW3 Lukanika Abdallah stated that that fateful night, he was at home with his wife and children.

The accused persons all brought up the defence of alibi meaning that prosecution had the burden to place them at the scene of crime.DW1 who stated that the was in police custody did not bring any proof to that effect. DW2 also did not call any one at the bakery to back up his claims. DW3 did not also bring any family member to prove that he was at home with them.

Much as the accused persons bear no burden to prove their innocence, I find that the prosecution witnesses were so consistent and properly identified the accused persons at the scene of crime.

I therefore find that prosecution has proved beyond reasonable doubt that the accused persons participated in the robbery in count one and count two.

For the offence of aggravated robbery in count three, I have noted that the complainant, Kekoi Eveline did not come to testify in court about her lost items. I cannot therefore rely on speculations to find for the accused persons. The accused persons are therefore acquitted of count III of aggravated robbery.

Further, in count IV, of attempted rape, PW1 testified that the person who tried to remove her clothes to rape her is not among the accused persons in court. The accused persons are therefore acquitted of attempted rape in count IV.

In conclusion therefore, I find that prosecution has proved beyond reasonable doubt that the accused persons, A1, A2 and A3 committed aggravated robbery in count 1 and count II and in agreement with the assessors, I convict them accordingly.

……………………………………..

Emmanuel Baguma

  Judge.

01/04/19

Prosecutor: Aggravating actors

The three accused persons have no previous record.  The three accused persons are   convicted on a serious offence which calls for death.  They robbed and injured PWI and PW3 the accused were in a group I pray for 20 years imprisonment.

Defence:   Mitigating factors.

All the three accused are first offenders.  They have no previous record.  The accused have been on remand since 26/11/205. Making it three years, four months and six days.

I pray that the period spent on remand be deducted otherwise A1 was 20 years, A2 was 23 years and A3 was 30 years

I pay that since A2 and A3 have families with younger children I pray for five years for A1 then A2 and A3 six years.

SENTENCE AND REASONS:

I have considered the aggravating  and mitigating factors as submitted by both the prosecution and defence.

I have also considered the nature of the offence and circumstances under which the offence was committed. In view of the above each accused is sentenced to 13 years, four months and six days   in count I

Then each accused is sentenced to 10 years imprisonment in count 2 .The sentences to run consecutively.

However, since the three accused persons have been on remand for three years, four months and six days.  I will reduce their sentence by the time spent on remand and sentence each accused to 10 years in Count I and 10 years in count 2.

The sentences to run consecutively.

 

Emmanuel Baguma

Judge

2/4/2019

Right of appeal communicated within 14 days.

Emmanuel Baguma

Judge

2/4/2019.