Amooti Immaculate v Uganda (Criminal Appeal-2007/27) [2008] UGHC 3 (01 April 2008);
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO. 0027 OF 2007
(Arising from Buganda Road Chief Magistrate's Court at City Hall Criminal Case No. 1139 of 2006)
AMOOTI IMMACULATE::::::::::::::::::::::::::::::::::::: APPELLANT
VS.
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE HON. LADY JUSTICE C.A.OKELLO
JUDGMENT
offence in the 1stcount were that on or about the 7/7/2006 at Church Zone Area of Kamwokya in Kampala District, the appellant broke
and entered the dwelling house of Nalongo Nambalisa Rose with intent to commit a felony therein. The particulars of the 2nd count alleged that on the 7/7/2006, at Church Zone Area
of Kamwokya in Kampala District, the appellant stole shs.1,250,000/= the property of Nalongo Nambalisa.
The appellant denied the offences but was convicted on both counts and sentenced to six months imprisonment on each count; sentence was to run consecutively. This appeal is against her conviction.
Officer with Kampala City Council. She used to leave home for duty at 7.00 a.m. and would return at about 9.00 p.m. Nalongo had children
some of whom attended school from morning until 1.00 a.m. To enable the children gain access to her residence but not to her bedroom, Nalongo used to leave her front door key with
Grace Mbabazi (PW1) her land lady and neighbour, with standing instructions to give it to her visiting relatives, especially her
sisters, without informing or obtaining permission from her first.
was concerned, her evidence would have been useful as that of one of the first persons to discover the break-in. However, it should
talked to her - greeted and asked her the where about of Nambalisa's children and where her house key was. On learning of the children
being in school and the key being with Grace Mbabazi, the appellant approached the latter whereupon she introduced herself as Nalongo's
sister from the Village. She told Grace that she had left Nalongo in Town and that she was sent for the house key. Appellant then
requested for the key that she used to enter the house. No one paid any further attention to her, but in the early afternoon, Nalongo's
children returned from school only to discover their house and their mother's bed room open. They reported their findings to Grace
Mbabazi. When Nalongo returned from work she discovered that shs. 1,250,000/= had been stolen from her bed-room. Nalongo reported
the break-in and theft to Mr. James Kakooza the LC1 chairman (PW4) and later to the police. She and Grace carried out their own investigations that led to appellant being found and recognised
by Grace at Nateete. The appellant was arrested from her work place on Nasser Road and charged with the two offences.
for the offences and detained briefly on the 22/8/2006 before being released on Police Bond. She testified that on release, her house
was searched for a green Kitenge without success.
who broke and entered complainant's house and stole money from it. She convicted the appellant on the two counts and sentenced her
to a consecutive term of six months imprisonment on each count. Appellant was ordered to pay Nalongo compensation of Shs. 1,250,000/=,
hence this appeal.
was that the learned trial Magistrate erred in law and in fact by accepting evidence of identification.
a conviction. Available evidence largely remained that of a single witness which was insufficient to sustain convictions for these
reasons:
(i)
There were no eye witnesses to the crime as none of the two principal witnesses (PW1 and PW2) saw appellant break and enter complainant's
house.
(ii)
Only one of the two Witnesses, Grace Mbabazi, identified the appellant at Nateete, Juliet Kiconco did not do so. Even then, no Police Officer was present at the identification. Besides, Juliet
Kiconco's evidence was not tested in cross-examination as she was not re-called for further cross-examination by appellant's counsel.
Therefore the trial court should not have relied upon her evidence to convict the appellant.
(iii)
Prosecution did not discharge its legal burden of disproving appellant's alibi. In the circumstance the trial court should not have
disregarded appellant's alibi. He cited the case of Frank Ndahabe vs. Uganda - Supreme Court Criminal Appeal No.3 of 1993 (unreported).
the scene of crime. He argued that appellant's defence was really not alibi because she did not specifically claim to have been conducting
the business of Pride Micro Finance on the day of the offence. Her evidence concerned her routines on Fridays but not what she did
on the 7/7/2006. On identification of appellant by Grace Mbabazi and Juliet Kiconco, Mr. Mulindwa submitted that both witnesses had
opportunity to correctly identify appellant under conditions that favoured correct identification. Both noted appellant's attire
on the day of the offence - a green Kitenge.
Kiconco concerning the time she saw the appellant and the conversation she had with her about custody of PW2's keys and whereabouts
of her children. She further reviewed Ms. Mbabazi's evidence on identification before proceeding to analyze evidence of the two witnesses.
At the end of her analyses, she concluded that appellant was properly identified and that there was no need to hold identification
parade for identification of the appellant by PW1. The trial court added that PW1 did not identify appellant by co-incidence because on the one hand, there was evidence that PW2 who
was a friend of one Gloria Mukasa told Gloria about keeping the stolen money in her house. There was also evidence on the other hand showing that Gloria and the appellant were close friends. The connections pointed to the appellant learning of the money through Gloria.
In view of this evidence, Court rejected appellant's alibi finding that she was at the scene of crime when the offence was committed.
I find credible, Ms Kiconco first saw the appellant sitting on the veranda of PW2's house not far from hers. The two talked greeted
each other. Appellant later approached Kiconco to ask for PW2's children and the whereabouts of the keys to her house. It was Ms.
Kiconco who told appellant where the keys could be found. All these happened in broad day light, I believe that she had ample opportunity
to observe the appellant under conditions that favoured correct identification. She noticed appellant's dress and its colour; she
also noticed that appellant had a black polythene bag when she arrived at PW1's home. She was definitely in a position to recognise
appellant.
enabled her to recognise and identify the appellant and appellant only from a group of Niigiina members at Nateete. It was the same
observation that had earlier led her to clearing PW1's workmates from suspicion when she was led to her work place and the witness failed to recognise the culprit among them. Like
Ms. Kiconco, PW1 observed that appellant was wearing a green kitenge attire on the day of the offence; the fact that the green Kitenge
dress was not found on a search of the appellant's house was immaterial because both Ms. Kiconco's and Ms. Mbabazi's identification
was based on physical build and appearance of the appellant; not so much on her attire which could be different at different times.
fact no law generally providing for recall of witnesses for a second cross-examined (sections 136 and 137 of the Evidence Act). I note from the record of proceedings that the appellant cross-examined both PW1 and
PW2 when she was defending herself at the beginning of her trial. She made the choice to do so. She later engaged the services of counsel, but engaging the services of counsel later did not translate into a right
to recall witnesses who had already testified and had already been cross-examined by herself. All in all, there was evidence placing
the appellant at the scene of crime; her alibi was concocted and was rightly rejected by the trial court. These grounds of appeal
fail.
the trial court. He argued that court would have arrived at different conclusion had it considered the inconsistencies. The learned
counsel enumerated the inconsistencies some of which are listed as follows:-
(1)
Whether or not the screw driver was the instrument used in the break-in given the evidence of D/C Oluka Francis (PW5) that it was used to break the sitting room while other witnesses testified that it was used to break into the bed-room. Besides, as an exhibit, the screw driver was mishandled by prosecution witnesses. The incomplete chain of handling cast doubt whether it
was used in the offence.
(2)
The investigating Officer did not record statements from potential witnesses such as PW2's children one of whom was said to be 18
years old. None of these children took the initiative to report the crime to anyone till 4.00 p.m. and 6.00 p.m. Even then, PW1 and her husband did not inform PW2 of the offence, it was PW2 who discovered it later.
(3)
The trial court did not consider the role of Gloria Mukasa in the offence, she knew about PW1's money; meaning that she should have
been treated as a suspect in the offence.
concerning the particular tool used to break into the house. What was important was the fact that the break-in occurred. Concerning witnesses not called as witnesses, the learned State Attorney submitted that the evidence of the 18 years old daughter of PW2 would not have been useful because
she discovered the offence after its commission. That of Gloria Mukasa would not have advanced prosecution case given the fact that
she was a friend of the appellant.
who received it from PW4. Be that as it may, as the learned State Attorney stated the important element of the offence - the break
in was proved by other evidence. It was not necessary to prove the instrument used to break in. The judgment of the trial court addressed
the argument on witnesses not called by the prosecution. Concerning Gloria Mukasa, the learned trial Magistrate pointed out (at p4
of the judgment) that Gloria was appellant's friend. She alluded to the possibility that appellant could have learnt of PW2's money
from Gloria. From these considerations, the learned trial Magistrate opined that Gloria would not have been a useful witness for
the prosecution.
given her relationship with the appellant. In as far as PW2's daughter
be noted that she and her siblings did not discover the theft; it was their mother who discovered the theft of her money when she
checked her bed-room. As there was other evidence proving breaking of the front door, failure to call any of the children of PW2
was of no effect on