THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO.36 OF 2000
(Arising from Criminal Case No. 23 of 2000)
KABATUSABE EDWARD………………………….. APPELLANT
Before: The Hon. Mr. Justice E. S. Lugayizi
This is an appeal. It is against the decision of Her Worship the Chief Magistrate of Masindi (C.K.Mudhasi) dated 14th June 2000 in which she convicted the appellant of arson contrary to section 307 (a) of the Penal Code Act and sentenced him to 5years imprisonment. The appellant was dissatisfied with that decision. Hence this appeal. The background to the said conviction and sentence was briefly as follows. During the night of 12th January 2000 at Miirya village, in Masindi district, at around 3.00 a.m. when the complainant (Barugahara Soteri PW1) and his family were asleep, their house was set on fire. The complainant went to the back part of the house to see what was happening. He opened the back door and saw a fire near it. There was a bench behind the door. Therefore it could not open easily. For that reason, the complainant went to the front part of the house and opened the door. He saw the appellant running away. The complainant and the members of his family then raised an alarm that was answered by some of the neighbours. The fire was contained. Later on, the complainant reported the matter to the authorities implicating the appellant. The appellant was arrested and prosecuted for arson. During the hearing of the case the prosecution called five witnesses who substantially narrated the same story as the one above. On his part, the ppellant gave sworn evidence and set up an alibi. He called two witnesses who supported his alibi. After warning herself of the danger of basing a conviction on the evidence of a single identifying witness, the learned trial magistrate was satisfied that the complainant could not have been mistaken in identifying the appellant as the culprit. He knew the appellant before the incident; and he flashed bright torchlight upon him as he ran away from the scene of crime. The learned trial magistrate therefore convicted the appellant of arson and sentenced him to 5 years imprisonment. The appellant was aggrieved by that decision; and in his Memorandum of appeal he cited three grounds. They are as follows,
1. The learned trial magistrate erred in law and fact when she relied on the evidence of single identifying witness,in the absence corroboration, to conclude that the appellant was correctly identified.
2. The learned trial magistrate erred in law and fact in failing to properly consider the defence of alibi that was raised by the appellant.
3. The learned trial magistrate erred in law and fact in failing to properly evaluate the evidence on record.
At the time of hearing the appeal, Mr.Ruyondo represented the appellant and Mr.Gatana represented the DPP. However, during submissions Mr. Ruyondo abandoned the last ground of appeal and concentrated on the first two grounds. With regard to the first ground of appeal Mr. Ruyondo submitted that the evidence of identification fell short of the required standard in that it was doubtful and unreliable. The offence in question took place in the dark, at 3.00 a.m. and the complainant only saw, at a distance and by weak torchlight, the back part of some one running away from the scene of crime and thought that it was the appellant. Secondly, in Mr.