Moses Kabareebe v Uganda (Criminal Appeal No. 57 of 2023) [2025] UGSC 24 (8 July 2025)

THE REPUBLIC OF UGANDA THE SUPREME COURT OF UGANDA AT KAIITPALA (Coram: Tuhaise, Musota, Madrama, Bamugenereire & Mugenyi, JJSC) MOSES KABAREEBE APPELLANT VERSUS UGANDA RESPONDENT (Appeal from the Court of Appeal (Buteera, DCJ; Musoke & Cheborion, JJA) in Criminal Appeal No. 150 of 2021) Criminal Appeal No. 57 of 2023 CRIMINAL APPEAL NO. 57 OF 2023 I JUDGMENT OF THE CO U RT A. lntroduction [,{r. lvloses Kabareebe ('the appellant') was convicted of rape contrary to sections 123 and 124 of the Penal Code Act, Cap. 128, and sentenced '10 years' imprisonment, The prosecution case as accepted by the kial court was that on 25t, october 2019 at about 3.00pm in Kyebando - Kampala District, the appellant had unlawful sexual intercourse with Ms. Juliet Akello, a house maid to his tenant, without her consent. THAT the Leamed Justices of Appeal ened in law when thoy failed to address their ninds to the procedural inegularitres in the investigation offhe case up lo lls conclusion at tnal. lll. THAT the Leamed Justices of Appeal effed in law when they held thatthe evidence ofthe phone pint out was not relevant and hence wrongly anived at an enoneous decision.

3. At the hearing of the appeal, the appellant was represented by Mr. Elly Kubabulungi holding brief for Mr. David Mushabe, while the respondent was represented by l\tls. Fatuma Nakafeero, a Chief State Attomey, holding brief for Ms. Samali Wakholi, an Assistant Director of Public Prosecutions. 4, Under Ground 1of the Appeal, reference is made to the decision in Boqere Moses vs Uqanda (1998) U GSC 22 to support the contention that the Court of Appeal abdicated its duty to subject the material that was before it to fresh scrutiny as is required of a first appellate court. This omission on the part of the lower court allegedly compromised the appellant's right to a fair hearing and resulted in an unfair conviction. The following procedural inegularities are cited to urge this Court to quash the appellant's conviction. 5. lt is the appellant's contention that the medical report in Police Form PF 24A was improperly admitted as an agreed document under seclion 66(2) and (3) of the Trial on lndictment Act (TlA), Cap. 23, and therefore wrongly relied upon by the trial court for his conviction. Learned counsel for the appellant

Criminal Appeal No. 57 of 2023 2, The appellant unsuccessfully challenged his conviction and sentence in the Court of Appeal. He thereupon lodged this Appeal in this Court on the following premise: ll. THAT the Leamed Justicas of Appeal erred in law when they ignored the major contradiclions and lnconslslencies in the testimonies of prosecution evidence hence the caso was not proved beyond reasonable doubt B. Parties' leqal arquments argues that the objective of section 66 of the TIA is to promote the non-derogable right to a fair hearing under articles 28(1)and 44(c) ofthe Constitution. In this case, the contents of PF 24A could not have been declared agreed facts without their having been read back and explained to the appellant in a language he understood, as well as signed by him, as dictated by subsection (2) of that statutory provision. ltis argued thatthis procedural requiremenl was not fulfllled bythe trial court so as to admit the impugned document as agreed and proved within the confines of section 66(3) of the TlA. This omission, in learned Counsel's view, amounts to a fatal procedural irregularity.

6. Both lower courts are additionally faulted for relying on a joint assessors' opinion contrary to the provisions of section 82(1 ) of the TlA. lt is further argued that the failure by the police investigators to reconstruct the scene of crime lefl the case poorly investigated and was prejudicial to the appellant.

9. In addition, the witnesses' testimony that the appellant threatened the victim with a gun at the material time he commitled the offence is contested for having fallen short of proof to the required standard. It is the appellant's contention that no gun was recovered from his home following a police search, but rather it was confirmed that the gun that had been in his possession had long been deposited

Criminal Appeal No. 57 of 2023 7. l\,1eanwhile, under Ground 2 of the Appeal the first appellate court is faulted for ignoring major contradictions and inconsistencies in the prosecution evidence in arriving al its decision. This Cou('s decision in Hudson Jackson Andrua & Another vs Uqanda. Criminal Appeal No. 17 of 2016 is cited for the proposition that whereas minor inconsistencies that do not go to the root of the case may be ignored, 'when the inconsistencies and contradictions are grave, unless resolved, the evidence must be rejected.' 8. lt is argued that there were contradictions in the evidence of PW1 and PW4 as to whether in fact the victim engaged in sexual inlercourse with the appellant or with another man. ln learned counsel's view, the fact that the victim claimed to have never had sex with any other man save for the appellant and yet a DNA test revealed that he was not the father of her child, reveals the unreliability of her evidence and should not have been dismissed as a minor discrepancy. lt is opined that the contradictions in both witnesses' evidence are deliberate falsehoods that go to the root of the case and ought to have been rejected. Reference in that regard is made to this court's decision in Henrv Kazanrva vs Uoanda. Criminal Apoeal No. 17 of 2025 where it was held that evidence by itself or with others that is grossly tainted with grave contradictions or inconsistencies may, unless satisfactonly explained, be rejected; and evidence that is tainted by minor contradictions or inconsistencies which nonetheless point to deliberate falsehoods may similarly be rejected. with the CMI Drrectorate of Counter lntelligence at the matedal time. lt is thus argued that this conlradiction should have been resolved in the appellant's favour. 1

1. Conversely, learned State Counsel objects to Grounds 1 and 3 of the Appeal on the premise that no new matters can be raised on second appeal that were never raised before the first appellate court and, in any case, a semnd appeal is restricted to points of law. lt is argued that although Judicaturc (Supreme Cout Rules) Directions, S.l 13-11 ('the Supreme Court Rules') do make provision for the invocation of the Court's inherent powers to achieve the ends of justice and prevenl the abuse of court process, there is no abuse of court process that would necessitate this Courl's intervention. ln any event, the record of appeal would suggest that the ingredient of sexual intercourse having occurred was never in contention in the trialcourt, having been conceded by the appellant's advocate at the time. With regard lo Ground 2, learned State Counsel contends that this ground of appeal raises questions of fact and not law, falling short on the specific enor of law that was committed by the first appellate courl. ln her view, this ground of appeal should similarly be struck out and the entire appeal be dismissed.

12. Alternatively, in response lo Ground 1 of the Appeal it is argued that the appellant's advocate did at page 158 of the record of appeal confirm that Police Form 24A (which was wrongly recorded by the trialjudge as PF 4A) was a document that had been agreed upon by the parties, hence its admission in evidence as Exhibit P1. lt is argued that there was no procedural inegularity or miscamage of justice occasioned on that account.

13. With regard to the joint report of the assessors, it is argued that as a rule of practise when not giving contrary opinions, the assessors can give one opinion. ln any case, the assessors' opinion is not binding on courts and therefore the acceptance of a joint opinion would not occasion a miscarriage of justice. Reference is made to the decisions in Uoanda vs Guster Nsubuqa & Another SCCA No. 92 of 2018, Sitenda Sebalu v Sam K. Niuba & Another Election Apoeal No.26 of 2007 and Kamoala Caoital Citv Authoritv v Kabandize & Others SCCA No. 13 of 2014 for the proposition that the use of the word 'shall' in statutes does not always mean mandatory but can be directory, and

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10. Ground 3, on the other hand, specifically questions the first appellate court's finding that the print outs of phone calls made to the victim's employer by the appellant's wife and father were irrelevant to lhe case. ln the absence of print outs of the alleged phone conversations, leamed counsel considers lhat evidence to have been hearsay that was untenable. He cites the definition of hearsay in Fred Sekaiia vs Uqanda, Criminal Appeal No. 78 of 2020 in support of this contention. is the correct position on the question of assessors' opinions. The respondent additionally invokes the provisions of article 126(2)(e) of the Constitution, urging this Court to administer justice without undue regard to technicalities given that the appellant does not contesl the prosecution evidence that led to his conviction and sentence. 14. ln relation to the omission by the police to reconstruct the scene of cnme, learned State Counsel asserts that the scene of crime was properly described by the victim during the trial, and the circumstances under which the offence ensued were favourable for correct identification of her accoster since he was well known to her as her landlord and attacked her at her residence during broad day light at around 3pm. lt is thus argued that there was no need to reconstruct a scene of crime that was articulately described by the victim, her aunt and the investigating officer. The absence of a scene of crime report was thus opined to be neither an irregularity nor tantamount to a miscarriage of lustice. At any rate, reference is made to the decision in Uoanda vs Guster Nsubuoa & Another (supra) where it was observed that'it would be expecting too much to demand that all trials must run like clockwork, short of which they would result in nullification of the entire trial. We do not live in a perfect world so we have to evaluate the impact of any particular imperfection on the entire trial.' 15. ln response to the alleged contradictions and inconsistencies set out in Ground 2 of the Appeal, the respondent contends lhat no inconsistencies were pointed out to the Court of Appeal in respect of the evidence of PW1 and PW4, and any contradictions in the prosecution evidence would have been minor therefore the court correctly ignored them. lt is argued thal both lower courts correctly found that the incidence of sexual intercourse had been salisfactorily proved given that it was never conlested before them. ln leamed State Counsel's view the issue as to whether or not the victim had a boyfriend would not negate the fact that the appellant had non-consensual sexual intercourse with her. ln the same vein, the fact of the victim having borne a child with another man is opined to neither create a discrepancy in the evidence nor exonerate the appellant of wrongdoing given the victim's credible identilicatron evidence.

16. As to whether or not the appellant threatened the victim with a gun, it is argued that the possession of a weapon during the commission of the offence is not an ingredient of the offence of rape under section 123 and 124 of the Penal Code Act. ln counsel's view, the fact that the appellant had told the victim that he was a soldier and threatened to shoot her if she made an alarm was sufficient proof that they had engaged in non-consensual sex. State Counsel supports the view by the Court of

Criminal Appeal No. 57 of 2023 Appeal that the prosecution case did not raise any issue as to the parentage of the victim's child, and therefore the DNA flnding that established a different father for her child was not conclusive on the offence of rape, given the independent conoborative evidence that linked the appellant to the offence.

17. Finally, in response to Ground 3 of the Appeal, the respondent contends that PW1's testimony on phone conversations between herself and the appellant's wife and father cannot be hearsay since she was personally party to the phone calls.

18. By way of rejoinder, the appellant decries the respondent's reliance on Henrv Kifamunte vs Uoanda t19981 UGSC 20 and section 139(1) of the TlA, arguing that the procedural inegularities that underpinned the present case did in fact occasion a failure of .juslice. Learned counsel for the appellant urges this Court to reject the idea that the fact that the appellant was legally represented at the trial means he should have raised the inegularities in issue presently before the trial court. Reference in that regard is made to the decision in Tropical Africa Bank Ltd v Grace Were Muhwana Civil Aoplication No. 3 of 2012 that the mistake or inadvertence of legal counsel should not be visited on a clienl

19. With regard to PF 24A, learned Counsel for the appellant maintains that the record of the kial court proceedings neither establishes any consent to the admission of the impugned police report nor any endorsement of the memorandum of agreed facts. He further reiterates that the failure by the trial judge to read and explain PF 24A to the appellant is an inegularity that contravened the nonderogable right to a fair hearing and occasioned a grave injustice to the appellant as he was not aware that he could no longer challenge the admitted evidence in cross examination.

21. Learned counsel contests the proposition that the use of 'sha//'in section 82('l) of the TIA was directory rather than mandatory, arguing that such an interpretation would exonerate the trialjudge's failure to duly guide the assesso[s on separate opinions, an inegularity that was endorsed by the Court of Appeal in violation of the appellant's right to a fair hearing against an unjust conviction.

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20. With regard to the alleged proof of the offence, il is argued that the victim admitted that she had a boyfriend after lying on oath that she had had no previous sexual relations before the alleged rape; no witness placed the appellant at the scene of crime, the other witnesses simply expressing what they had been told, which is hearsay, and the medical report only indicated that the victim had had sex 12 - 48 hours prior to the examination but does not establish with whom she had the sexual encounter, Counsel relects the proposition that the imperfect world that we live in should be reason to negate the standard of proof in criminal trials. In this case, it is his contention that the prosecution fell short of that standard of proof, arguing that in the absence of a judge visiting the crime scene, a sketch and report would help a kial court to visualise the layout of the scene.

22. In rejoinder to the respondent's contestations under Ground 2 of the Appeal, it is argued that the quality of the prosecution evidence did nol prove the case against the appellant beyond reasonable doubt, given the grave contradictions, deliberate untruthfulness and hearsay that tainted that