Court name
Supreme Court of Uganda
Judgment date
1 September 2004

Kwijuka Misaki and Anor v Attorney General (Criminal Appeal-2003/18) [2004] UGSC 27 (01 September 2004);

Cite this case
[2004] UGSC 27

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA, AND
KANYEIHAMBA, JJ.SC)

CRIMINAL APPEAL NO. 18 OF 2003
BETWEEN

1. KWIJUKA MISAKI
::::::::::::::::::::::::::
APPELLANTS
2. IGA JACKSON

AND
UGANDA
:::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the judgment of the Court of Appeal
(Mukasa-Kikonyogo, D.C.J. Mpagi-Bahigeine, and Kitumba, JJA) dated 6/6/2003 in
Criminal Appeal No.
149 Of 2001)



REASONS FOR JUDGMENT OF THE COURT

This is a second appeal. The appellants, Kwijuka Misaki (A.1) and Iga Jackson
(A.2) were jointly convicted by the High Court, at Mubende
of the offence of
aggravated robbery, contrary to sections 272 and 273 (2) of the Penal Code Act,
and sentenced to death.

Their appeals to the Court of Appeal were dismissed. We also dismissed their
appeals to this Court for lack of merit, reserving our
reasons for doing so,
which we now proceeds to give.

The facts as found by the two courts below are briefly these: During the
night of 30/9/1999 at Nakwanya Village in Mubende District,
the appellants broke
into the house of one Francis Kuteesa (hereinafter referred to as "the
deceased") and demanded money from him,
which his wife Janet Nantale (PW.1) gave
to them. When they ordered the deceased to lie down and he resisted, A.2 stabbed
him with
a knife, killing him instantly. PW.1 gave the attackers Shs: 500,000/=,
but they demanded for more money and she gave the attackers
additional Shs:
300,000/=. By a combination of torchlight which the robbers flashed at her and
dim electric lights available in the
house, PW.1 was able to see both the
attackers. The incident took one hour. After the robbers had fled, PW.1 reported
the incident
to neighbours and the local LC 1 chairman. Consequently, a chase
was made of the robbers and they were apprehended at daybreak at
Migina trading
centre, about six miles from the scene of the robbery. They were moving along a
cattle track, not the normal way,
and their clothes were wet with morning dew.
On their way, they stopped at a shop for a drink of soda, and were asking their
way
around. Their pursuers included Kukunda Manuel (PW.6), a cattle keeper and
L.C.2 Chairman and Musoke Kazimiri (PW.4) a special police
constable and other
villagers, who caught up with them. When their pursuers asked for their
identity, A.1 and A.2 resisted. The latter
had a stick and tried to beat off the
villagers. The appellants were found to be in possession of bags, which
contained clothes,
some money and a cattle syringe in A.2's bag. Both robbers
attempted to run away. However, A.1 was apprehended when he fell down,
but A.2
managed to escape but was arrested later the same day. They were handed over to
Busunju Police Station. Subsequently, they
were indicted for the offence. At
their trial each of the appellants set up an alibi, which the learned trial
judge rejected as false.
He acted on the evidence of PW.1 and circumstantial
evidence which he believed to be true and convicted the appellants.

There was some confusion in designations of the appellants in the Courts
below. At their trial, Kwijuka Misaki was accused No. 1 (A.1)
and Iga Jackson
accused No. 2 (A.2). In the Court of Appeal Iga Jackson was appellant No. 1 and
Kwijuka was appellant No. 2. In this
Court their positions were reversed from
what they were in the Court of Appeal. It appears that for that reason, Mr.
Henry Kunya
the learned counsel for Iga Jackson (A.2) argued his appeal first
before the learned counsel for Misaki Kwijuka (A.1) Ms. Diana Musoke
argued
Kwijuka's appeal. Needless to say that such confusion is unhelpful to counsel
and to the Courts in their efforts to follow
the evidence and arguments in
respect of each of the appellants. Courts, (and counsel when drawing up
memoranda of appeals), should
consistently adhere to the first numbering of the
accused persons or the appellants, as the case may be.

A2's grounds of appeal as set out in his memorandum of appeal are that:

1). The learned Justices of Appeal erred in law and in fact in upholding the
conviction and sentence of the appellant on the basis
of unsatisfactory evidence
of a single identifying witness, PW1.

2). The learned Justices of Appeal erred in law and in fact in upholding the
conviction and sentence of the appellant on the basis
of unreliable
circumstantial evidence.

A.1's grounds of appeal are that:

1. The Hon. Justices of Appeal erred in law and in fact when they
relied on the uncorroborated evidence of a single identifying witness
whereas
the conditions for
identification were not favourable.

2. The Hon. Justices of Appeal erred in law and in fact when they failed to
consider the appellant's defence of alibi.

The respective first grounds of the appellants' memoranda of appeal are
similar as they both complain against the Court's findings
on identification.
They also relate to evidence from the same prosecution witnesses. We shall
therefore consider them together. This
also necessarily involves consideration
of the circumstantial evidence at the same time since such evidence is
corroborative of evidence
of identification, and is a subject of A.2's complaint
in his second ground of appeal. That leaves out the second ground of the A.1's
appeal to be considered last.

Under the first ground of Jackson Iga's appeal, his learned counsel, Mr.
Henry Kunya, submitted that P.W.1's evidence of identification
of the appellants
at the scene of crime was unsatisfactory, because, the assailants were strangers
to her since she was seeing them
for the first time. Moreover, lighting was
poor. According to her own evidence, electricity light was dim, although it was
on throughout
the incident. In her statement to the police, she said the
assailants also flashed torches, but she did not say so in her evidence.
Torchlight would have been unnecessary to the robbers if electricity was
available. In her testimony she also described how the assailants
were dressed,
but in her police statement, she said that she could not say how they were
dressed. Further in her testimony, she said
that the incident lasted one hour,
but this is missing from her police statement. Learned counsel contended that
the inconsistencies
between her evidence in court and her statement to the
police and the poor conditions for identification, made P.W.1's evidence
unreliable.
The Court of Appeal should not have upheld the trial judge's
acceptance of her evidence. It erred for doing so.

Under the second ground of appeal, Mr. Kunya criticized the Court of Appeal's
upholding of the trial court's reliance on circumstantial
evidence as having
corroborated PW.1's evidence of identification of A.2. The learned counsel
contended that the evidence that the
appellants were seen following a cattle
track and being in clothes wet with dew did not irresistibly point to the
appellants' guilt.
Any other pair of villagers could have been seen following
that track and in wet clothes at that time of the early morning. Although
the
time was 6.00 a.m. learned counsel contended that the appellants could have been
innocently walking in the area where the prosecution
-witnesses said they saw
them. After making the points about wet clothes and A.2's movement in the area
so early in the morning,
Mr. Kunya said that he was abandoning the arguments,
but he did not say that he conceded that these were pieces of circumstantial
evidence, which implicated his client in the crime. Mr. Kunya also criticized
the trial court's reliance on the evidence of a stick
having been used by the
appellants during the robbery and at the scene of their confrontation with
villagers and the Court of Appeal's
upholding of that finding. On those grounds
Mr. Kunya prayed that Iga Jackson's conviction be quashed and the sentence of
death set
aside.

Under A.1.'s first ground of appeal, his learned counsel Ms Harriet Diana
Musoke's submission was similar to Mr. Kunya's submission
in respect of A2's
first ground of appeal. She submitted that the evidence of identification of A.2
at scene of crime, was from a
single identifying witness only, namely P.W1. As
the appellant was a stranger to her and the quality of light was poor, she could
not have properly identified the appellant. Conditions for identification were
not favourable. Consequently, the first ground of
appeal should
succeed.

Mr. Vincent Okwanga, Principal State Attorney, for the respondent, did not
agree with the submissions of the learned counsel for the
appellants. He
contended that favourable conditions for identification of the appellants did
exist. There was electric light throughout
the attack; there was also light from
a candle; the incident took a long time - one hour; and PW1 was not far from the
attackers.
Learned Principal State Attorney contended that these conditions
enabled P.W.I to observe and recognize the assailants, and that
P.W.1's
identification of her attackers were free from error. He therefore contended
that the learned Justices of Appeal therefore
correctly upheld the trial court's
finding that the appellants were properly identified at the scene of crime.
Regarding discrepancies
between the evidence of P.W.I and her previous statement
to the police, the learned Principal State Attorney contended that the police
officer who recorded the statement was not called to prove it against P.W.1.
Consequently, the statement cannot be used to contradict
her evidence. The
inconsistencies were minor and should therefore be ignored.

Regarding circumstantial evidence, the learned Principal State Attorney
contended that what implicated the appellants were that the
robbery took place
at about midnight; at 6.30 am they were arrested in the area where they were
strangers; their clothes were wet
with morning dew; they drank soda in a shop
where they asked for direction; they were walking along a cattle track instead
of on
normal paths; they were avoiding to meet other people; when challenged
they at first resisted revealing their identity. Iga Jackson
beat the villagers
with a stick during their confrontation with the villagers; Iga Jackson ran away
from the scene; and they had
some money, which was found in their bags, which
they could not explain in other way. All these pieces of circumstantial
evidence,

the Learned Principal State Attorney contended corroborated P.W.1's
evidence of identification of the appellants at the scene
of crime.

The learned Justices of Appeal re-appraised the evidence of P.W1 and that of
P.W4 and P.W6 and came to the same decision as the learned
trial Judge as
corroborating P.W1's evidence of identification and reached their own
conclusions in the following terms: -

"We think that P.W 1's evidence with that of P.W 6 and that P.W 4 was
impeccable. We are satisfied that though she did not know the appellants
before,
the confrontation lasted for an hour long enough to enable her recognize them.
They were talking to her, demanding money
and threatening her to meet the same
fate as her husband, whom the second appellants had already stabbed to death if
she did not
lower her voice. Of course, it was only natural to feel scared under
the circumstances even without the death of her husband, but
considering the
length of the time they had spent together moving around the house and to the
shop, it would be impossible to talk
to them without observing their faces. We,
therefore, think that P.W 1 had ample opportunity of observing the appellants
and the
quality of her identification was unassailable - see ABDULLA NABULERE
AND OTHERS VS. UGANDA CRIMINAL APPEAL NO 25/78.
Her evidence in court, which
was on oath and was tested by cross-examination, was correctly preferred to her
police statement, which
was not on oath and was not properly tendered in
evidence.


Coupled with the foregoing is the corroborative evidence of P.W 4 and
P.W 6 regarding their arrest. Their clothes were wet with morning
dew. Their
furtive movements along cattle tracks rather than on main paths was circumspect.
A.2 still had the stick P.W 1 had seen
during the attack. This coupled with
long-winded defences of alibi went to destroy their porous defences. We have no
doubt that the
learned Judge properly appraised the
evidence".


In our view the Court of Appeal cannot be faulted in its re-appraisal of and
conclusions on the evidence as shown by this passage
of its Judgment. In the
circumstances, the first and second grounds of appeal

of Iga Jackson (A.2) and the first ground of appeal of Kwijuka Misaki (A.1)
must fail.

On the issue of alibi in the second ground of A.1's appeal his learned
counsel submitted that A.1 admitted that he was in Migina to
see his brother and
not in connection with the commission of this offence. He contended that this
ground of appeal should therefore
succeed. The learned Principal State Attorney
for the respondent did not agree. He submitted that A.1's alibi was disproved by
the
evidence of P.W 1, P.W 4 and P.W 6. He was arrested together with A.2,
disproving A.1's alibi that he was going to the place of his
Uncle, one
Magezi.

The learned trial Judge considered A.Ts alibi in detail and rejected it as
false, because, A.1 did not leave Kampala for Kiboga that
morning, and, on his
own admission, the circumstances of his arrest agreed with the evidence of P.W 4
and P.W 6. In the passage of
the Court of Appeal's judgment to which we have
just referred, that court upheld the learned judge's finding rejecting A.1's
alibi
as false and, consequently, providing corroboration for the evidence
of P.W 1, P.W4 and P.W 6. In our opinion, the Court of Appeal
was correct in
doing so. A.1's second ground of appeal must also fail.

In the result, the respective grounds of appeals of A.2 and A.1 must
fail.

We are satisfied that there was ample evidence to support their conviction
which the Court of Appeal rightly upheld.

For the foregoing reasons, we dismissed the appeals of both
appellants.

Dated at Mengo this 1st day of September
2004
.

B.J. ODOKI
CHIEF JUSTICE

A.H.O.
ODER

JUSTICE OF THE SUPREME COURT

J.W.N.
TSEKOOKO

JUSTICE OF THE SUPREME
COURT


A.N.KAROKORA
JUSTICE OF THE SUPREME
COURT


G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT