Uganda v Mumbere Ednus (Criminal Session 156 of 2024) [2025] UGHC 395 (18 March 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KASESE

HCT-25-CR-SC-0156-2024

UGANDA=======================================PROSECUTOR

VERSUS

MUMBERE EDNUS===================================ACCUSED

BEFORE JUSTICE DAVID S. L MAKUMBI

RULING ON SUBMISSION OF NO CASE TO ANSWER

BACKGROUND:

The Prosecution case in this matter is that on the night of 24th July 2023, the Accused Mumbere Ednus alias Asiimwe and two others robbed one Sabiiti Siaga of an Itel Mobile Phone worth UGX 41,000 and one Tofayo Isaac of a Y2 mobile phone worth UGX 360,000. It was alleged that both robberies took place at Kyondo Cell in Kasese district and that the Accused person used a deadly weapon being a spear during the course of both robberies.

The Accused person was subsequently arrested with the help of community members and charged with two counts of Aggravated Robbery contrary to Sections 266 and 267(2) of the Penal Code Act. He was medically examined and found mentally stable.

EVIDENCE:

The Prosecution primarily relied on the testimonies of two witnesses.

PW1 Tofaayo Isaac testified about knowing the Accused as a resident of Kyondo LC1. He testified that he was attacked on the night of 24th July 2023 by three men while on the way home. He further testified that the three persons were masked but that he knew one of the assailants who he later arrested and that it was that assailant called Joward who revealed to him the two other persons including the Accused who had robbed him. PW1 never identified the Accused as being at the scene of crime.

PW2 Basemera Mary testified that during the night of 24th July 2023 she had witnessed some people entering her bar at Majengo and that one of the people dressed in black had approached Sabiiti Siaga and demanded a phone from him and had threatened to pierce him with a spear. PW2 went on to testify that it was a person called Joward who had been identified by a patron in the bar and that he had fled the scene thereafter.

The Prosecution subsequently opted to close its case after two witnesses had testified.

SUBMISSIONS:

At the close of the prosecution case, Counsel for the Accused opted not to make submissions on no case to answer but prayed that court notes from the testimonies of the two prosecution witnesses the Accused person was never identified at the scene of crime.

ANALYSIS OF EVIDENCE:

In criminal trials, it is trite that the burden of proof is always on the Prosecution and never shifts save for specific statutory exceptions of which the offence of Aggravated Robbery does not qualify.

Section 74(1) of the Trial on Indictments Act provides that upon the closure of the prosecution case if the evidence of the prosecution is found not to be sufficient then the court shall record a finding of not guilty after hearing from the advocates for the prosecution and the accused.

Section 74(2) of the same Act conversely provides that where the evidence of the prosecution is found to be sufficient then the accused is informed of their rights and accordingly given the option to commence their defence.

The sufficiency or insufficiency of the evidence as referred to in Section 74 of the Trial on Indictments Act is what ultimately determines whether or not there is a prima facie case against the accused by the close of the prosecution case.

While the standard of proof criminal trials is proof beyond reasonable doubt the standard for determining whether an accused person has a case to answer is evidence of a prima facie case. It is also trite that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence.

In the case of Bhatt v R (1957) EA 322, the East Africa Court of Appeal held that *a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence*.

The standard of proof for a prima facie case therefore may not reach proof beyond reasonable doubt but should also not be based on whimsical evidence and allegations.

To that extent therefore the sum total of the evidence adduced by the close of the Prosecution case must be of such sufficiency that in the absence of any evidence being led in defence of the Accused it would result in a conviction.

The main issue therefore is whether the Prosecution has established a prima facie case warranting the Accused being put to his defence.

In addressing this issue the Prosecution must lead evidence of the following ingredients for Aggravated Robbery.

1. Theft or stealing of some property; 2. Actual use of, or threat to use violence during the theft; 3. Actual use of, or threat to use a deadly weapon either immediately before or at the time of perpetration or immediately after perpetration of the theft; and 4. Participation of the accused in the perpetration of the offence.

(See Uganda v Cpt Munyangongo Benz Tushabe and 2 Others – High Court Criminal Session at Kyenjojo Case 85 of 2003).

In this matter PW1 Tofaayo Isaac testified that he was robbed but made no direct reference to the Accused as the perpetrator. Instead he testified that he only learnt about the Accused from another party. Likewise PW2 testified to having witnessed a robbery at her bar but made no reference at all to the accused.

There is no single ingredient of aggravated robbery that has been proved by the evidence in this matter.

The nature of the evidence led in this matter falls completely short of the prima facie standard for which a reasonable tribunal would convict the Accused person in the absence of any defence.

It would appear that the Prosecution decided to prosecute this matter without considering whether the evidence was sufficient to warrant prosecution of the accused person.

ACQUITTAL:

Considering the analysis of this Court above, it is my conclusion in line with Section 74(1) of the Trial on Indictments Act that the Prosecution has not made out a prima facie case against the Accused in this matter.

The Accused Mumbere Ednus is found not guilty of the offence of Aggravated Robbery and accordingly acquitted and is free to go unless held on other lawful pending charges.

Right of Appeal explained.

Ruling delivered this 18th day of March 2025.

David S. L. Makumbi

JUDGE