Namusoke Annet Kirabo v Uganda (Criminal Appeal No. 62 of 2021) [2023] UGSC 84 (11 October 2023)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: owiny-Dollo CJ; Tibatemwa-Ekirikubinza;Tuhaise; Chibita; Madrama jlSC CRIMINAL APPEAL NO.62 OF202'1, NAMUSOKE ANNET KIRABO APPELLANT VERSUS UGANDA RESPONDENT (Appeal arising from the decisiort of the Court of Appeal before Kakuru, Kibeecli ancl Mttlyagonja, llA, in Crinrinal Appenl No. 69 of 2018 delitered on 29th lttly 2021) udgment of the Court i This is a second appeal filed by the Appellant, Narrtusoke Annet Kirabo, following the dismissal of her first appeal by the Court of Appeal which upheld the con'riction and confirmed the sentence passed against her by the learned trial Judge' Background on the 14th of March 20lT,FaithPoni Emmanuel, a minor aged 3 years/ was taken away from Kampala Parents school and detained against her 1 will with intent to procure a ransom or benefit for her liberation from the danger of being murdered. The minor was taken out of the school by a woman, later identified as Namubiru Phiona, who pretended to be her aunt' Namubiru Phiona came to the school at lunch hour and spoke to the Appellant, who was the minor's Class Teacher. She asked the Appellant to allow her pick the mir.ror and take her for a birthday party in primary two class room in the same school. she was told to wait as the minor was still having lunch. However, she removed the minor from School. It was discovered that the minor was missing at 5 pm when her uncle came to pick her up from school. The minor was recovered two days later on 16th March 2017, inBibbo, Bombo in the custody of Namubiru Phiona. The Appellant and Namubiru Phiona were arrested in connection with the chilcl's disappearance. They were both charged with the offence of Kidnap with intent to Procure a ransom contrary to section 243 (1) (c) of the Penal Code Act. The matter was committed for trial, where the Appellant was the second accused (A2) and Namubiru Phiona was the first accused (A1). 41 entered a plea bargain agreement with the state and pleaded guilty to the offence. she was convicted on her own plea of guilty ancl was sentenced to five years and nine months' imprisonment. 2 The Appellant (A2) on the other hand pleaded not guilty and the trial proceeded against her only. The trial Judge found that the ingredients of the offence, that is, the unlawful taking of the victim; that the taking of the victim was by use of force, fraud or coercion; that the taking of the victim was with the intention of gaining a ransom or reward; and that the accused participated in the commission of the orfence; had all been proved against the Appellant by the prosecution' The Appellant was convicted and subsequently sentenced to a term of imprisonment for L1 years and 9 months. Dissatisfied with the findings of the learned trial Judge, the Appellant appealed to the Court of Appeal on 3 grounds, that:- i) Tlrc learned trial ludge erred in laru tulrcn he conttictud tlu appellant on the basis of tueak, unreliable and unsatisfactory circumstantial eridence tlrcreby occasiottittg a nriscnrringe of jttstice' ii) The leorned triat ludge erred in lato and fact rulrcn he found that tlu appellnnt pnrticipateel in ttrc kidnnp of tlu t,ictinr, tlrcreby occasioning a miscarriage of justice. iii) Tlrc learned trinl ludge erred in law and fnct tulun lrc reiected the euiclence of tlrc ttefence tlrcreby occasioning a niscnrriage of justice' The Court of Appeal dismissed the appeal, upheld the conviction, and confirmed the sentence against the Appellant. Further aggrieved by the 3 ciecision of the Court of Appeal, the Appellant filed the instant second appeal based on the following grounds:- 1) The Learned Justices of the Court of Appeal erred in law when they upheld the appellant's conviction for the offence of kidnap with intent to procure a ransom whereas the essential ingredients of the offence had not been proved' 2) The Learned ]ustices of Appeal erred in law when they failed to re-evaluate the evidence regarding the participation of the appellant in the commission of the offence' Representation The Appellant was represented by Mr. ]olly Mutumba on State Brief' while the Respondent was represented by Mr. George william Byansi, Senior Assistant Director of Public Prosecutions (DPP)' Reconstitution of the Panel when this appeal was first heard, Counsel for both parties adopted their written submissions which were on record' However' due to factors beyond the control of this Court, the panel had to be reconstitutecl before judgment could be delivered. At the re hearing of the same appeal before the reconstituted panel, learned Counsel Jolly Mutumba for the Appellant, and Mr, Semalemba Simon' Assistant DPP for the Respondent, each had no obiection to the reconstituted panel' and each re - aclopted their written submissions on record' 4 Appellant's Submissions Learned Counsel for the Appellant argued the two grounds of appeal together. He submitted that neither the High Court nor the Court of Appeal evaluated the evidence linking the Appellant with the offence; thatnoneofthewitnessesfortheprosecutiongavedirectevidence proving that the Appellant participated in the kidnap' He contended that, however, the learned trial |udge based his conviction on circumstantial evidence, the doctrine of willful blindness, and on the lies told by the Appellant which he found to corroborate the prosecution case; and concluded that the lies were inconsistent with the innocence of the APPellant. Learned Counsel submitted that, on the other hand, the Court of Appeal dicl not re-evaluate the evidence of the defence witnesses; that' in addition, the Court of Appeal shifted the burden of proof upon the Appellant to prove her innocence by questioning her actions' yet in all criminal cases, the prosecution bears the burden to prove the guilt of the accused person, and the proof has to be beyond reasonable doubt' as was held in the case of Sekitoleko Vs Uganda11967l EA 53L; and that, as a result, the courts below convicted the Appellant based on the weakness of the defence instead of the strength of the prosecution case or evidence 5 On that basis, Counsel submitted that the element of the Appellant's participation in the commission of the offence was not proved by the prosecution to the required standard' He argued that this being a very serious crime, the court ought to be convinced beyond reasonable doub| that, therefore it was unsafe to convict the Appellant' He contenrlecl that the eviclence on record only left the Appellant a strong suspectinthekidnapofthevictim,butthatthelawisveryclearthat suspicion however high, can never be a basis for conviction. Counsel cited the case of R Vs Israel Epuku s/o Achietu to support his proposition. Respondent's Submissions Learned Counsel for the Respondent submitted that the learned trial Judge ably evaluatecl the evidence adduced before him on the ingredient of participation before making the only plausible inference thattheAppellantwasguilty.Hesubmittedthatthelearnedtrial}udge fullyunderstoodthenature,weightandvalueoftheevidenceadduced beforehim;anclthatheevaluateditasexpectedbeforeheconcluded that the inculpatory facts in the case were incompatible with the innocence of the accused ancl therefore incapable of explanation uPon any other reasonable hypothesis than that of guilty' and convicted the Appellant accordinglY. 6 Learned Counsel also submitted that, on its part, the Court of Appeal also duly understood and fully clischarged its duty of re-evaluating all the evidence adducecl at the trial and made its own injerences on all questions of law and fact; and that the Court weighed the evidence of the prosecution against that of the defence, and found the prosecution case overwhelming and sufficient to sustain the conviction against the Appellant. Learned Counsel submitted for the Respondent that it is not true that the two courts below convicted the Appellant basing on the weakness ofthedefenceandnotonthestrengthoftheprosecutionCaSeor evidence. He argued that the Court of Appeal analyzedthe evidence of the accused person's behaviour before, during and after the commission of an offence but clicl not shift the burden of proof to her; that her suspicious, curious, cleceitful and unusual behavior was found to corroborate the prosecution evidence and that of DW4 (A1) thereby leading to the only reasonable inference of guilt' Regarding the circumstantial eviclence, Iearned Counsel submitted that itisnotonlydirectevidencethatcansustainconvictions,andthat circumstantial evidence is also good evidence' He argued that many convictions are often founded and sustained on circumstantial evidence. He contended that in his very well researched and reasoned Judgement, the trial Judge was very alive to the notions of burden of 7 proof, standard of proof and circumstantial evidence throughout his analysis and evaluation of the evidence; that further, at page 3 of the judgement of the trial court, the trial Judge observed that, " "' proof beyonrl reasonable tloubt cloes not nrcan proof beyond a slwdotp of doubt". Learned Counsel concluded that the circumstantial evidence met the required standard and therefore the trial court and the Court of Appeal were right to safelY relY on it. Resolution of the APPeal This Court's jurisdiction as a second appellate court is limited to considering questions of law or mixed law and fact that were before the first appellate court. This Court is not required to re-evaluate the evidence like the first appellate court. This is well laid out under Rule 30 (1) of the Judicature (Supreme Court Rules) Directions; and in this Court's decision in the case of Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. L0 of 1997' Although two grounds of appeal were raised in the memorandum of appeal in the instant appeal, the grievance contained in both grounds is that the Appellant was convicted without proof of her participation in the commission of the offence. The arguments arising from the grounds of appeal are that the two lower courts failed to evaluate or re-evaluate the evidence pertaining to theAppellant,sparticipationinthecommissionofthecrime;thatthe 8 Court of Appeal shifted the burden of proof upon the Appellant and convicted her based on the weakness of the defense case instead of the strength of the prosecution case or evidencei and that the circumstantial evidence relied on to convict the Appellant was unsatisfactory' We have carefully perused the record of appeal and the ]udgments of the lower courts. Regarding the question of evaluation of evidence, the Appellant's contention is that the High Court failed to evaluate the evidence as a trial court, while the Court of Appeal failed to re-evaluate the evidence as a first appellate court. The record shows that, at the trial of the Appellant, the prosecution presented 6 witnesses while the defence presented 4 witnesses. The prosecution witnesses were PW1 - Dr. Barungi who examined the Appellant; PW2 - Dr. Catherine Nabagala who examined the minor; PW3 - the victim's father; PW4 - DAIP Mpatodere Jennifer a Police Investigator; PW5 - the victim's uncle; and PW6 - the victim's mother. The witnesses for the defence were DW1 (the Appellant); DW2 (Nabiruma Lubega Milly); DW3 (Musoke Jane); and DW4 (Namubiru Phiona, also AL at the trial). The learned trial Judge evaluated the evidence of each of the said witnesses, and analyzed it in the judgment (pages 55 - 70 of the record of appeal),, which led him to convict the Appellant. 9 The Appellant also maintains that the Court of Appeal did not re- evaluate the evidence of the defence witnesses as against that of the prosecution witnesses regarding the Appellant's participation in the commission of the offence. It was argued for the Appellant that none of the prosecution witnesses incriminated her, that as such, the ingredient of her participation in the offense was not proved to the required standarcis. According to Counsel for the Appellant, the conviction of the Appellant by the Court of Appeal was based on her coming late to the school and leaving early on the day the child was kidnapped' together with her failure or refusal to answer the phone calls of the minor's mother. Counsel argued that if the Court of Appeal had re-evaluated the evidence of DW2 anct DW3 (defense witnesses), it would have got the explanation that the Appellant came late to school because she was not feeling well, and she had sought permission the previous day to go and see a doctor; that from the testimony of the Appellant herself' she answered the phone calls of the minor's mother until the battery of her mobile phone was used up. It was accordingly submitted for the Appellant that the failure by the Court of Appeal to re-evaluate this defense evidence cast doubt on the prosecution evidence' and that the Appellant should not have been convicted on the weakness of the defense case. 10 The essence of re-evaluation of evidence, as clearly stated by this Court in the case of Kifamunte Henry Vs Uganda (supra) while setting out thedutyofafirstappellatecourt,isforthefirstappellatecourttogive the evidence aclduced at trial fresh scrutiny, bearing in mind that the ]ustices of the first appellate court were not physically present at the trial, that they had no opportunity to see the witnesses testify or to examine them on the statements they made' First, we need to point out that we have noted that the Judgment of the Court of Appeal has several clerical errors in reference to the witnesses. Atpage25,line4,PW5isreferredtoasthefatherofthevictim(the minor), yet PW5 was the victim's uncle' On page 27 line 9' reference is made to -DW5 a teacher at the same school" , yet there were only 4 defence witnesses. On page 28 Iine 13, Namubiru Phiona (who was also A1 at trial) is referred to as DW3 when in fact she was DW4' and on page29line17,A1 Namubiru Phiona is referred to as DW2' yet she was DW4. We note further that the learned trial )udge' at page 61 of the record of appeal, also erroneously referred to DW4 (A1) as DW3' In rectifying the foregoing errors which are aPparent on the face of the record as reflected in the judgments of the two lower courts' this Court hadtorefertothetrialcourtproceedingstoascertainthewitness numbers. 11 After noting and correcting the errors, we were able to ascertain from their judgment that, in the re-evaluation of the evidence, the learned Justices of Appeal considered the evidence of PW1, PWz,PW3,PW4, PWS, and PW6 who were prosecution witnesses. Regarding the defense witnesses, it is discernible from their judgment that the first appellate court considered the evidence of DW1, DW2 and DW4' We note however, that the learnecl ]ustices of Appeal left out the evidence of DW3 Nabiruma Lubega MillY' The Appellant's grievance is that the first appellate court did not re- evaluate the evidence of DW2 and DW3. However, the record of Appeal shows that the evidence of DW2 was considered though there was a clerical error in capturing her as DW5 on page 27 ' Regarding the Appellant's contention that there was failure by the Court of Appeal to re-evaluate the evidence of DW2 and DW3, we are mindful that the grounds before this Court and the grounds that were raised before the first appellate court concerned the participation of the Appellant in the commission of the offence. Much as the first appellate Court is required to look at the evidence as a whole, in the case of Kifamunte Henry Vs Uganda (supra), this Court stated:- "There is no standard forru of judgment of a Court of Appeal' It lus been held ttnt n frst appellate Court does not lwtte to urite n judgment in a 1-2 ' form appropriate to a Court of frst instsnce' lt is enough' in questiotts of fact, if, aftet the frst appellate Court hatting itself considered and eualuateel tlrc etridence and hntting tested the conclusions of tlrc trial Court clrntpn front the denrcanour of toitnesses against the wlnle of tlrcir euidence, it is satisfed tlwt tlrcre ruas etidence upon which tlrc trial Court could properly and reasonably fnd as it did' That the appellate Court's conclusions are nrerely expressed in suclr terms' in itself is no indication tlut it las failed to nnke a criticsl epdustion of tlrc et'idence." In her testimony at the trial, DW4 did not implicate the Appellant as having participated in the commission of the offence. on the basis of the grounds of appeal, the evidence that the court was supposed to concentrate on when re-evaluating the evidence was that regarding the Appellant,sparticipationinthecommissionoftheoffenceshewas indicted for. It is shown at page 28 of the record of appeal, that after re-appraising the evidence of the witnesses, the learned Justices of Appeal stated:- ,,Wearesatisfedthnttheeuidenceadducedatthetrialuassuffcientto sustqin conuiction ngainst tlrc appellant'" This, in our unclerstanding of the standard of proof of a crime' though the learned ]ustices of Appeal did not use the appropriate term' was' in effect, stating that the evidence adduced at trial, proved the case against the Appellant beyond reasonable doubt. This shows that irrespective of 13 the Court of Appeal's not considering the evidence of DW3, the evidence adduced at trial, which is on record, was considered as a whole. Therefore, in our considered opinion, the Court of Appeal re-evaluated the evidence in connection with the Appellant's participation in the offence though there were clerical errors contained in the Judgment. Regarcling the question of burden of proof, it is the Appellant's argument that the Court of Appeal, in making its decision, shifted the burden of proof from the prosecution to the Appellant (A2 at trial) to explain why she came to school late on that day and left early; why she allowed the minor to have enough time with the kidnapper; why she did not ascertain whether or not there was indeed a party at school; why she did not inquire from the minor's Parents about the iclentification of the stranger who collected the minor; why the minor had not come back from the party and why, by 5 pm the minor's bag was still in class; and why she was not answering the calls of minor's mother. It is not in dispute that the burden or duty to prove the guilt of the accused person perpetually rests on the prosecution, and does not shift to the accused person, except where there is specific statutory provision to the contrary. See Woolmington vs DPP [1935] AC 462' Indeed, in the case from which this appeal arises, the charges brought against the 14 Appellant (A2) are in a category where the burden of proof should never shift to the accused person. The question to determine is whether, in re-evaluating the evidence and making its decision, the Court of Appeal shifted the burden of proof from the prosecution to the Appellant (A2). The record of appeal shows at Page 28 that, having held that the evidence adduced at the trial was sufficient to sustain a conviction against the Appellant, the learned Justices of Appeal went on to state in their judgment, as follows:- ,,That DW3 (A7) could not luue committed the offence ruithout tlrc assistance of the appellant. DW3's euidence is that of an accomplice, and must tlurefore be treated tuith cnution. we hatte cautioned ourselttes before relying on it. Hotuetter, tlut (sic) is other independent ettidence to corroborate it. TIut is tlu conduct of ttrc nppellant' Slrc appeats to luue cleliberately conrc late to school and left eaily on the mqterial day. They luneled ouer the rtictim to ttrc kidnapper at school. It allowed the kid to haue enough time tuith the kidnapper in order to gain lrcr confdence' Tlrckidnapperfacecltlrcchildtoithasodq,inherpresenceyetshehnd just taken lrcr break menl ancl toas going for a party' A child being taken to party tpould not be (sic) imnrcdiately before' she did not ascertain tplrctlrcr or not there was indeed a party for siblings at school inst a blink atuay. Slrc did not inquire from tlrc parents of the 1) kid or lrcr clritter and uncle tulnse teleplnne contact slrc lwd qs to T'ho thestrangertuas.Thekidleftlrcrbnginclassandtlrcappellantdidnot fndouttotryby5PMttrcbagtoasstillinclass.Shedidnotascertgitt tolry tlu kid lwd not conrc back ftont tlrc party' slrc asked tlrc nrotlrcr rphether indeed it tpqs not her wln lud picked the kid. She ruas not anxpering her calls'" The above extract of the judgment shows that the learned Justices of Appeal highlighted other indepenclent evidence of events' mainly on the conduct of the Appellant, before, during, and after the commission of the offence, that pointed to the Appellant's participation in the crime' In doing this, the Court of Appeal was not posing fresh questions for the Appellant to answer or explain, but was rather clearly re-evaluating the adduced prosecution eviclence against the Appellant (A2) regarding her conduct before, during and after the commission of the offence. This had nothing to do with shifting the burden of proof to the Appellant. It is also shown in the above extract of the Court of Appeal judgment that the learned }ustices of Appeal treated the evidence of DW4 (A1), erroneously referred to as DW3 in the Court of Appeal iudgment as already stated, with caution as accomPlice evidence' They cautioned themselvesbeforerelyingonit,andfoundthattheconductofthe lb Appellant is other evidence to corroborate the accomplice evidence of DW4 (A2). The findings of the learned Justices of Appeal were concurrent with those of the learned trial Judge. The record of appeal shows at page 61 that the learned trial Judge, in his iudgment, found part of the evidence of DW4 (A1) untruthful, particularly her denial of having established contact with the Appellant before the kidnapping of the minor. On rejection of that evidence, the learned trial ]udge in his judgment at page 62 of the record of appeal, stated:- "the only direct epidence between A1 Namubiru Phiona is prottided by tlrc stlnrission made by the accused in lrcr defence that she saru and talked to A'1. on the dny tlrc child ttss kidnapped ad tlwt she ruqs tlrc person who last lwd direct supenrision of tlrc child before slrc utent missin7." The learned trial Judge treated the foregoing piece of evidence as falling within what he categorized as the first batch of circumstantial evidence. The second batch of circumstantial evidence the learned trial Judge relied on was what he referred to as willful blindness on the part of the accused, as deduced from the conduct of the accused, including that she did not demand proPer identification from the stranger (A1) when she came to collect the victim who was only 3 years olci; that she did not bother to verify with the parents of the minor or her uncle whom she all knew as a neighbor and whose phone contacts she had; that she 1,7 never bothered to verify that there was a party in the nearby primary two class where the stranger claimed to be taking the minor; that she never ascertainecl that the minor had been returned to class when she handed over the children to the next teacher on duty, and was instead obsessed with receiving a piece of the cake from that pattf ) and that she left the minor's property in the classroom at the end of the day without ascertaining that she was on the premises. The third batch of circumstantial evidence relied on by the learned trial Judge was the evidence which comprised occurrences that suggested a design rather than happenstance, that, among other things, Al targeted a child from a family the accused (Appellant) knew reasonably well on a personal basis since she used to be given lifts by the victim's uncle as she dropped the victim at school; and that she never took precautions to protect the child she knew when a stranger came to take her away' The fourth batch of circumstantial evidence the learned trial Judge considerecl, which he however found to relate more to the character of the accused rather than evidence of a guilty mind, and therefore, in his wisdom, did not rely on it, comprised of the suspicious behavior of the accused before and following the incident, which was that she kept talking about cake repeatedly but showed no concern about the victim's whereabouts; and her failure to take calls from the parents and the uncle of the minor after the minor was discovered missing' 18 The fifth batch of circumstantial evidence the learned trial Judge considered and relied on comprised of the unexplained contradictions in the defence evidence, suggestive of fabrication and conspiracy, for example that the accused claimed 41 had a scarf across the shoulder while A1 said it covered only her head; the accused claimed A1 was carrying a birthday cake in a box yet A1 said it was in a polythene bag and relatively small; the accused said the cake was branded " Hot Loaf' yet A1 stated that the words were neither on the polythene bag nor on the cake; the accused saw the box containing the cake beside 41 at the bench where she sat while A1 stated that there was no such box; and that the accused admitted to having interacted before with a number of Sudanese parents and recognized their accent when they spoke English, yet ,A1 spoke fluent English with no such accent and the accused believed her claim that she was the victim's aunt. The learned trial Judge then found that the deliberate lies told by the accused person in her defence corroborated the otherwise strong circumstantial evidence adduced by the prosecution against her. Secondly, from the surrounding circumstances and the conduct of the accused, as shown on page 69 of the record of appeal, the learned trial Judge, in his judgment, deduced evidence of a conspiracy, that:- "Existence of a conspirncy ad its objectiue csn be inferred ftom the surrounding circumstances Tnd tlrc conduct of tlrc accused. wrcre an 19 accused, toith knorpledge of anothet's intention to see a continuing offence through to its conryletion, does (or omits to do) something, toith the intention of aiding or nbetting the comruission of tlrc ongoing offence, Iiabitity is establislgd. A person tuho knotuitrgly does any act to furtlrcr the object of a conspiracy, or otlwnoise participates therein, is criminally liable as a conspirator. Tlrc act of one conspirator pursuant to or in furtherance of tlrc comnron elesign of the conspiracy is the act of all conspirators. Etery conspirator is legally responsible for an act ofa co- conspirator tlut follotus as one of tlrc probable and nertural consequences of the obiect of the consPiracY." Thus, based on the above, there is nothing to suggest that the Court of Appeal shifted the burden of proof from the prosecution to the Appellant (A2). We therefore have no reason to doubt the concurrent findings of the two lower courts. Regarding the question of circumstantial evidence, it was the Appellant,sargumentthatnoneoftheprosecutionwitnessesgave direct evidence proving the Appellant participated in the kidnapping of the minor; that, therefore, the Appellant's conviction and sentence were based on circumstantial evidence which was unsatisfactory. It is not in doubt, as reflected in the record, that the conviction of the Appellant in this case was arrived at based purely on circumstantial evidence presented by the prosecution. The prosecution relied entirely 20 on circumstantial evidence to prove participation of the Appellant in the commission of the offence. The question of direct evidence in this appeal therefore does not arise, and it is a misconception by the Appellant's counsel to reason in his submissions that since none of the prosecution witnesses gave direct evidence proving the Appellant's participation in the kidnapping of the minor, her conviction being based on circumstantial evidence was unsatisfactory' Circumstantial evidence is defined in Black's Law Dictionary, Ninth Edition, at page 636, asi "1. Euidence based on inference and not on personal knoruledge or obsentation - also termed indirect epidence; oblique ertidence...is thst epidence tphich is applied to the principal fact, indirectly, or through the mediuru of other facts, by establisting certain circumstances or ninor facts, already describerl as eridentiary, from ultich tlrc principal fact is extractetl and gatlrcred by a process of special inference ' " Some circumstqntial eoidence is rery strong, as u'lrcn you fnd a trout in milk......Henry Daaiil Thoreau, lournal 1-L Noa 1850, in 2 lournal of Henry D. Thoreau 94 (Brailford Torrey I Francis H' Allen eds,7962.' In the case from which the instant appeal arises, the nature of circumstantial eviclence was well captured by the learned trial ]udge in his judgment at Page 58 of the record of appeal, when he quoted the 21, definition of circumstantial evidence in R vs Taylor weaver and Donovan t1928] 21. Cr App R 2O at 21, as "euidence of surrottnditrg circumstances tulticlr, by undersigned coincidence, is capable of protirrg o proposition rpitlr tlrc accuracy of nruthenntics." In Uganda, the principles adopted by courts include that circumstantial evidence must be narrowly examined; a court must warn itself of the dangers of relying on circumstantial evidence; and, before basing a conviction on circumstantial evidence, a court must find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. See Musoke Vs R [1958] EA715; Sharma Kooky and Another Vs Uganda I2OO2|2 EA 589 (SCU). Circumstantial evidence therefore can, on its own, be relied on to procure a conviction. It is clear, at pages 58 and 59 of the record of appeal, that the learned trial Judge was alive to the principles to observe on circumstantial evidence. He warned himself of the dangers of relying on circumstantial evidence. He narrowly examined it and categorized the circumstantial evidence presented by the prosecution in five categories, and then gave his conclusions on each batch. These categories which we have already highlighted above, were occurrences of a chain of contact between Al (DW4) & the Appellant; the curious conduct of the Appellant; occurrences which suggest a design rather 22 than a mere coincidence; conduct of the Appellant before, during, and after the incidenu and the unexplained contradictions & deliberate lies in the defence witnesses. Of these categories, the learned trial Judge did not consider the evidence that the Appellant and 41 had met the day before. He reached a conclusion that the Appellant's refusal to pick calls pointed more to her character than guilt, and he disregarded that evidence too' This goes to show that not all the circumstantial evidence was accepted by the trial court. At the conclusion of the trial the evidence accepted by the trial court, though circumstantial, met the required standard of proof, and was sufficient to the required standards to convict the Appellant. The learned trial |udge found, as shown at Page 71 of the record of appeal, that:- " tlrc inculpatory facts in this csse are incompatible uith the innocence of tlrc accused and incapable of explanation upon any otlrcr reasonnble Irypothesis tlnn tlut of guilt. They irresistibly poittt to the guilt of the accusecl qncl tlwre are no other co-existirrg circumstnnces uthiclr tpould tueaken or destroy the inference. Tlrc cirutmstantisl etidence lus producecl moral certainty, to tlrc exclusion of euery reasonable doubt, tlut the accused participated in tlrc commission of tlis offence'" The learned Justices of Appeal, as shown at Page 29 of the record of appeal, were, after re - evaluating the evidence, satisfied that the 23 l'earned trial fudge properly evaluated the evidence and came to the correct conclusion that the prosecution had proved its case against the Appellant beyond reasonable doubt. We have no reason to doubt the concurrent findings of the two lower courts. Therefore, for the reasons given above, we find that the two grounds of this appeal have no merit, and the appeal is accordingly dismissed. We uphold the conviction and sentence of the High Court imposed against the Appellant. Dated at Kampala this \\t' day of 2023. .? Ov Alfonse Owiny-Dollo Chief fustice l^- .,1" Prof . Lillian Tibatemwa-Ekirikubinza |ustice of the Supreme Court NW Percy Night Tuhaise justice of the Supreme Court 24 Mike Chibita |ustice of the Supreme Court CAristopher Ma drama ]ustice of the Supreme Court q\-s s\ S^,UqN b hs \A\-, \*t Sre r \-J \ or=l \q\,-e.u$ l**5'.rO \\ 25