Wetsenge Robert v Uganda (Criminal Appeal No. 80 of 2021) [2025] UGSC 51 (30 October 2025)

5 THE RTPUBLIC OF UGANDA IN THE SUPRTME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL No. 8O of 2O2L [CORAM: TIBATEMITIA.EKIRIKTIBINZ,A; TUHAISE; CHIBITA; MUSOTA; MUGEIIIYI; "r.rSC/ WETSENGEROBERT APPEALANT VERSUS UGANDA RESPONDENT (An appeal from the Judgment of the Court of Appeal Musoke, Baishaki, Obura; JJA) dated, 8th Nouember, 2O21 ln Ciminol Appeal No. 161 of2O19) JUDGMENT OF THE COURT This is a second appeal lodged by the appellant aggrieved and dissatisfied with the decision of the Court of Appeal. The Memorandum of Appeal had 3 grounds as follows: 1. The Learned Justices of Court of Appeal erred in law when they held that the circumstantial evidence was sufficient to place the Appellant at the scene of crime though occasioning a miscarriage of justice. 2. The Learned Justices of Court of Appeal erred in law and fact when they held that prosecution had adequately established the doctrine of recent possession against the Appellant thus occasioning a miscarriage ofjustice to the Appellant. 3. The Learned Justices of Court of Appeal erred in law and fact when they sentenced the Appellant to a sentence of 35 years and 4 months on count 1 for the offence of murder and 15 years and 4 months imprisonment on count 2 for Aggravated Robbery that both sentences to IO l5 l0 25 _.]0 I ) run concurrently and be served from the date of conviction i.e 29 llll2}lS without taking into account the period spent on remand and other mitigating factors thus rendering the sentence illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice. Background The Background to this appeal is that, the Appellant was convicted on by the High Court for the offence of murder c/s to Sections 188 and 189 and aggravated robbery c/s to Sections 285 and 189 ofthe Pena-l Code Act. On the 6th day of January 2014, at around 3:O0 AM, while Mutonyi Fiya (the deceased) and PW4 Modesta Namakoye (the complainant) were sleeping, the complainant heard a bang on the door only once and continued sleeping. When she woke up at around 6:00 AM, she went to the room of the deceased and found the door leading to the outside wide open, while the deceased lay on her bed dead with blood oozing from her private parts. The complainant also discovered that some of her properties had been stolen, and these included 10 plastic chairs (5 blue and 5 green in color) plus 18 saucepans. A postmortem was conducted on the deceased's body and it revealed that the cause of the death was as a result of the twist in the neck to the right by a cloth tied around her neck. The complainant reported to the police, and the appellants were arrested and charged with two counts: Murder and Aggravated Robbery. The appellants were convicted by the High Court sitting at Mbale, and they appealed the conviction and sentence. The Court of Appeal upheld the t0 r5 l0 l5 i0 5 conviction and set aside the sentence, imposing a sentence of 35 years and 4 months'imprisonment on count 1 of Murder, and a sentence of 15 years and 4 months on the second count of Aggravated Robbery, with sentences to run concurrently. Representation At the hearing of the appeal, Mr. Emmanual Muwonge represented the appellant while Mr. Peter Semalemba Assistant DPP, Chief State Attorney, represented the respondent. Submissions of Counsel On April 3,a 2025, this Court directed the Respondent to file written submissions by April l7rh 2025.lt is important to note that by the time of preparing the judgment, a whole three months had elapsed the Respondent had not submitted written response to the Appeal, as per the Court's directive during the April 3, 2025. Consequently, Court had to proceed with determining the appeal based on the Appellant's written submissions and the record of Court. Submissions for the Appellant Counsel for the appellant, argued grounds I and 2 together, that the Justices of Appeal did not prove the prosecution's case beyond reasonable doubt. Counsel argued that there was insufficient evidence to prove that the accused was at the scene of the crime and that both the trial judge and Justices of Appeal should have held an identification parade instead of relying on the doctrine of recent possession and the l0 l5 l0 t5 -10 5 testimonies of witnesses not present at the scene of the crime. Counsel stated that PW4 never saw the accused and only saw the deceased hours after she had been murdered, and thus, PW4's testimony only serves as hearsay evidence. Furthermore, that no charge and caution statements were recorded from the accused, as well as that the items recovered by the police were in common place and never positively identified by Complainant as belonging to her. Citing Bogere Charles vs Uganda, Supreme Court Criminal Appeal No. 1O of 1996 and Simon Musoke vs R (1956) EA 715, Counsel argued that all evidence relied on by the court is circumstantia-t and was, thus, insufficient to sustain a conviction for murder and aggravated robbery. Ground 3 Counsel for the appellant states that the Justices of Appeal did not do the arithmetic deduction of the period spent on remand before setting on their sentence, which, per the Constitution, is illegal. Counsel then cited a number of cases that sentence the respective accused to considerably shorter sentences and states that the accused's sentence should be lessened to remain consistent with precedent. Grounds l and 2 Submissions for the Respondent No submissions were filed. Court's Consideration The duty of the Court of Appeal as a first appellate court is stated in a plethora of authorities such as Tito Buhingiro vs Uganda Supreme IO l5 20 25 .10 l 5 Court Criminal Appeal No. O8 of 2Ol4 and Kifamunte Henry vs Uganda SCCA No. 10 of L997 where it has been affirmed that: "the duty of the first appellate Court is to reconsider all material evidence that was before the trial Court in totality. It is only through re-evaluation that it can reach its own conclusion." On the other hand, this Court's duty as a second appellate court is to determine if the first appellate court properly re-evaluated the evidence and correctly applied the relevant legal principles. The Court does not typically re-hear the case or re-evaluate the facts unless the first appellate court failed to do so. This Court is not required to re-eva-luate the evidence like the first appellate court. In line with the foregoing legal principles, this Court will only interfere with the decisions and conclusion of the Court of Appeal if it appears that, as a first appellate court, it failed in its duty - that it either did not re-evaluate the evidence as a whole or it incorrectly applied the law. Grounds 1 and 2. The Appellant has argued grounds I end 2 concurrently, and Court shall resolve the grounds as such. Counsel for the Appellant contended that the Court of Appeal wrongly found, that circumstantial evidence and the doctrine of recent possession l0 l5 l0 l5 l 5 sufficiently proved the appellant's guilt, thereby causing a miscarriage of justice. In answering the issues at hand, we need to interrogate two legal principles, the doctrine of recent possession and the rule of circumstantial evidence, and how they relate to each other. A court uses circumstantial evidence as proof of facts from which it can infer the existence of other facts in issue. It is trite that possession of recently stolen property can be used as circumstantial evidence to support a conviction in a criminal case. When a person is found in possession ofrecently stolen goods, and there is no reasonable explanationfor that possession, it can lead a court to infer their involvement in related crime. In agreeing with the trial Judge, the Court of Appeal found that the circumstantial evidence, under the doctrine of recent possession, was sufficient to link the appellant to the murder and robbery beyond reasonable doubt. The Court ofAppeal held: "From the euidence on record. a few facts are clear and we do not find them to be mere coincidences First of all, PW4 lost blue and green plastic chairs and saucepans on the dag her house uas broken into and her great grandchild killed. Secondlg, the lst appellant wes a former tenant at the house of PW4 whose room u)as next to the room where the saucepans and the chairs uere kept and when he lefi, he was disgntntled uith PW4. Thirdlg, the 7"t appellant showed up with blue and green plastic chairs and saucepans at the 2nd appellant's l0 l5 l0 25 _.i0 6 5 house. Fourthlg, the police in inuestigating the case, recouered blue and green plastic chairs from the house of the 2"d appellant's brother upon being led bg the 2"d appellant ond 1O saucepans from ths )"4 appellants house who claimed that theg belonged to the lst appellant. We find that the link between these pieces of euidence is clear and it points irresistiblg to the guilt of the appellants. We are therefore persuaded to belieue that the recouered properties are the same as those that had been stolen from PWl's home on the fateful night. We also find that the 7.t appellant's claim oDer ownership of these propertg was an afierthought whichwas not raised at the point of his qnest but rather duing his defence and therefore it cannot stqnd and so does the 2nd appellant's denial of ang knowledge regarding the thefi of these properties." It is evident from the court's pronouncements that before arriving at its own findings, the court as required by the law, re-evaluated the evidence on record. The Court then upheld the conclusions of the trial judge to the effect that the appellant's possession of 10 plastic chairs, 5 blue and 5 green in color plus 18 saucepans belonging to Modesta Namakoye (PW4) soon after the robbery, without any reasonable explanation and that the possession was incompatible with his innocence. It concluded that the learned tria,l judge was right to convict the appellant of robbery on the doctrine of recent possession of stolen property. l0 i5 l0 25 7 l0 5 We also confirm that in upholding the findings of the trial Court, the Court of Appeal correctly interpreted and applied the relevant legal principles, Iirst - that possession of stolen property shortly after the crime supports a strong inference of involvement and secondly, that the lack of an innocent explanation by the appellant further entrenched this inference. In the case of Magidu Mudasi v Uganda Cr. Appeal No. 3 of 1998 ISC) this Court held: "It is now well established that a court may presume that a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen unless he can account for his possession. This is an inference of fact which may be drawn as a matter of common sense from other facts including the particulars ofthe fact that the accused has in his possession property which it is proved had been unlawfully obtained shortly before he was found in possession. It is merely an application of the ordinary rule relating to circumstantial evidence that the inculpatory facts against the accused person must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt." (emphasis added) In the case before us, the trial court considered whether the Appellant participated in the robbery and concluded that: t0 I5 20 l5 _10 It 5 "In this case, as earlier established, PW2 testified that he recouered the stolen properties from A1's brother's home where A1 had kept them and in A2's home. TTrcre is no wag theg uould haue been in possesslon of the stolen properties if theg had not stolen them from the complainant. The complainant PW4 also testifi.ed that the properties had been sent to her bg her daughter in Juba. A1 neither adduced ang euidence to show that the properties belonged to him nor did he explain whg the said properties were kept separatelg, in different and suspicious places (underground and in the bedroom). As stated earlier in this pdgement, court would haue expected more than this claim bg calling additional euidence from his brother Joseph in whose house some of the properties were recouered by police in a locked house. He neuer called ang witness to substantiate his claim of ounership. This Court finds A1's clqim of ounership an afierthought since he neuer produced sulficient euidence on how he acquired the same euen when theg were paraded at police and photographed with stolen properties on 26/ 2/ 2O74 as per euidence of PW2 A2 equallg did not giue reason whg the saucepans u)ere buied under ground. This court finds the claims of A1 and A2 untruthful and an afierthought attempt to escape liabilitg in this case. In the instant case therefore, all the circumstantial euidence as was adduced in court was suJficient to proue that the accused persons did participate the commission of the said offence as charged for there was no euidence to the contrary. Both accused persons neuer offered anA reasonable/innocent explanations on hou theg came to be in r0 t5 t0 25 () -.i0 possession of the said stolen properties. This element is proued begond reasonable doubt. " On reviewing the record, it is evident that the Appellant did not assert ownership of the property in his charge and caution statement. (see pages t22 to 125 of the record of Appeal) Furthermore, the investigating officer, Mubiwaho Muhindo (CW1) at page 7O of the record of appeal, testified during the trial that the appellant did not claim ownership at any time when the items were discovered buried. In this instance, a claim of ownership with no evidence to support the same by the appellant is insufficient to establish ownership. We also find that the Court of Appeal correctly applied the law with regard to the doctrine of recent possession. The court held that: "As regards the doctrine of recent possession, the Supreme Court in its decision in the case o/Bogere Moses & Anor vs Uganda, SCCA No. 1 of L997, held as follows:- "It ought to be realized that tahere euidence of recent possession o/ stolen propertg is proued begond reasonable doubt, it raises a uery strong presumption of participqtion in the stealing, so that if there is no innocent explanation of the possession, the euidence is euen stronger and more dependable than ege witnesses euidence of identification in a nochrnal euent. Thls is especiallg so because inuariably the former is independentlg uerifiable, while the later solelg depends on the credibilitg of the ege tuitness." l0 l5 20 25 i0 l0 5 In essence, the doctrine of recent possession permits the court to infer culpability when an individual is found in possession of recently stolen property without a plausible explanation for the possession. A conviction may be sustained if the facts demonstrably negate innocence and exclude any reasonable alternative explanation. It was the argument of Counsel for the Appellant that all evidence relied on by the court is circumstantial evidence and was, thus, insufficient to sustain a conviction for murder and aggravated robbery. It is trite law that "it is no derogation that evidence adduced, to prove a case, is circumstantial. To the contrar5r, circumstantial evidence may offer the best evidence; as it can prove a case with mathematical accuracy." (Ttrmuheirwe vs Uganda 1196711 E.A. 328) What is evident is that the Appellant was found in possession of recently stolen goods, and he had no reasonable explanation for that possession. This position of the law was correctly applied to the facts of this case. We have no reason to depart from the findings of the first appellate court. Grounds 1 and 2 are therefore dismissed. Ground 3 On the third ground, the appellant submitted that the learned Justices of Appeal imposed a harsh, illegal and excessive sentence. l0 t5 l0 l5 -.]0 ll 5 t5 l0 l5 It is pertinent to point out that the power of this Court to hear and determine criminal appeals against sentence is stipulated under Section 5 (3) of the Judicature Act which provides as follows: "ln the case of on appeal against a sentence and an order other than one fixed bg law, the accused person maA appeal to the Supreme Court against the sentence or order, on a matter of law, not includinq the seueitu of the sentence." (emphasis added) In a plethora of decisions, this Court has restated and interpreted Section 5 (3) of the Judicature Act. In Okello Geoffrey vs. Uganda, SCCA No. 34 of 2014, the Court stated that: "Section 5(3) of the Judicature Act does not allout an appellant to appeal to this court on seueritg of sentence. It onlg qllows him or her to appeal against sentence onlg on a matter of law" ln Abelle Asuman vs. Uganda, SCCA No. 65 of 2016, court held as follows: "Accordinglg, we shall not consider issues of the sentence being harsh and excessiue since thot goes to seueritg of sentence. The appellant has no ight of appeal on seueritg of sentence." ln Karisa Moses v Uganda SCCA NO.23 of 2OL6, it was observed that: l0 5 r5 t0 "This court has repeatedlg emphasized that under section 5 (3) of the Judicature Act, an appellant is precluded from appealing against a sentence on the ground of seueitg." Further, in Nzabaikukize Jamada v Uganda SCCA No. 01 of 2O15 it was held that: "First and foremost we hque to point out that the ground of appeal on seuerity of sentence is barred bg law. Section 5(3) of the Judicature Act prohibits grounds of appeal based on seueritg of sentence..." The record shows that in arriving at the sentences, the Court of Appeal had this to say: "In Consideration of the aboue aggrauating and mitigating factors together with the sentencing range in cases of a similar nature that we haue cited, ue agree with counsel for the appellants thot the sentence of 40 gears and 4 months' imprisonment imposed on the appellants is harsh and manifestlg excessiue. We are therefore inclined to interfere with the discretion of the learned tial Judge. We thus set aside the sentence of 40 years and 4 months' impisonment andinuoke section 11 of the Judicahtre Acttuhichgiues this Court the pouers, authoitg and jurisdiction as that of the trial Court to among other things, impose an appropriate sentence of its own. We are of the considered uiew that a sentence of 35 gears' imprisonment for the offence of murder and 20 gears' imprisonment for the offence of aggrauated robbery uill meet the ends of justice. Hotueuer, we are enjoined under Article 23 (8) of the Constitution to l0 l5 l0 l-j ) deduct the peiod of 4 and 8 months the appellants spent on remarld." One can see that in exercising its sentencing discretion, the Court of Appeal considered the aggravating and mitigating factors. Furthermore, the court followed the constitutional imperative to deduct the remand period from the sentence to be served by the Appellant. We have no reason to make a hnding that the sentence in question is illegal. The court therefore has no jurisdiction to interfere with the court's decision. Ground 3 is accordingly dismissed. Conclusion and final Orders. Since all the grounds of appeal fail, the conviction and sentences of the Court ofAppeal are hereby upheld. 25 Dated this day of C,Dg e*:.....2o2s PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREMT COURT. l0 l5 20 t.1 3g+h -.]0 5 PERCY NIGHT TUHAISE JUSTICE OF THE SUPREME COURT t0 l5 MIKE CHIBITA JUSTICE OF THE SUPREME COURT STEPHEN MUSOTA WSTICE OF TIIE SUPRIME COURT k MONICA MUGENYI JUSTICE O.F. THE SUPREME COURT t5 tM@ 5 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 80 OF 2O2L (Coram: Tibatemwa-Ekirikubinza; Tuhaise; Chibita; Musota; Mugenyi) WETSENGE ROBERT::::::::::::::I::::::::::::::::::::::!::::::::: APPELLANT vs UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT PROCEEDING FOR JUDGMENT 30/rO/2025 Court: The appellant present in Court. Mr. Semakula Simon, Chief State Attorney absent. Mr. Mwonge Emmanuel, absent Mr. Ssekiziyivu David, Court Clerk. Wetsenge Robert: I am ready to recerve the Judgment. I can hear little English and Luganda. Court: Judgment read in Chambers and translated for the appellant in luganda language which he verily understood. Copy of the judgment availed to him. Registrar, Suprerre Court 3Ol LOl2o2s 10 15 20 25 30