Uganda v Agaba Patrick (Criminal Appeal No. 1 of 2026) [2026] UGHC 1060 (11 September 2026)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CRIMINAL APPEAL NO.1 OF 2026 (ARISING FROM CRIMINAL CASE NO. 369 OF 2017) UGANDA :::::::::::::::::::::::::::::::::::::APPELLANT VERSUS AGABA PATRICK ::::::::::::::::::::::::::::::RESPONDENT BEFORE: HON. JUSTICE SSEMOGERERE, KAROLI LWANGA JUDGEMENT Representation: Appellant is represented by Ms. Julie Najjunju, Senior State Attorney, Directorate of Public Prosecutions (“DPP”) Kabale. Respondent is represented by Rev. Ezra Bikangiso of M/S Bikangiso and Co. Advocates. This appeal was argued by way of written submissions. Brief Facts: The Respondent was charged before the Chief Magistrates Court Kabale with the offence of attempted murder contrary to Section 204 of the Penal Code Act [now Section 187 of the Penal Code Act) vide Criminal Case No. 369 of 2017 ; The Respondent was acquitted by the same court in a judgment delivered on March 27 th, 2025. An earlier ruling of this honourable court in Uganda v Agaba Patrick Criminal 1 5 10 15 20 25 Misc. Application No. 34 of 2025 delivered December 30, 2025, granted an application by the learned Director of Public Prosecutions (now the appellant) to enlarge time within which to bring this appeal. In the particulars of the offence, the respondent allegedly attempted to unlawfully cause the death of Betunga Elijah on June 2 nd, 2017 c/s 187 of the Penal Code Act, Cap 128 (the “Penal Code Act”). In his evaluation of the evidence before him, the learned Chief Magistrate found that there was an attempt to unlawfully cause the death of Betunga Elijah who was hit on the head, and injured. Evidence led in court showed he had a cut wound. The learned Chief Magistrate found that PW1, the victim was hit by a log, but that he was attacked by the respondent, the victim’s brother and other people in a “conflict setting”. He found there was a reasonable doubt on who exactly used the log to attack the victim at page 5 of the judgment of court. He found that the circumstances created a reasonable doubt, which doubt benefited the respondent, as it created reasonable uncertainty about the respondent’s guilt. He agreed with the narrative by the respondent and DW3 Byaruhanga Nazairo that the respondent was about 500 meters from the scene, and never reached the scene of crime. Memorandum of Appeal: Dissatisfied with the judgement of the learned Chief Magistrate, the learned Director of Public Prosecutions appealed to this court on the following grounds: 1. The learned Trial Chief Magistrate erred in law and fact when he failed to properly evaluate the evidence on the record thereby occasioning a miscarriage of justice; 2. The learned Trial Chief Magistrate erred in law when he acquitted the Respondent when there was overwhelming evidence on court record connecting the respondent to the charge thereby occasioning a miscarriage of justice on the appellant. 5 10 15 20 25 30 Appellant prayed as follows to this court: a) That the appeal be allowed; b) The judgment and orders of the lower court be set aside; c) The respondent be convicted and sentenced on the evidence on the record. Discussion and Analysis: Counsel for the appellant submitted that Section 35 of the Criminal Procedure Code Act, Cap 116 (the “Criminal Procedure Code Act”) permits the appellate court on an acquittal or dismissal to enter such a decision on the matter as may be authorized by law. Counsel also cited the duty of the first appellate court in the case of Henry Kifamunte v Uganda, Supreme Court Criminal Appeal No. 10 of 1997 where it was held, “The first appellate court has a duty to review the evidence of the case. To reconsider the material before the trial Judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.” Before considering this appeal, I wish to state a number of preliminary observations. First, is that an appeal is a reasoned disagreement with a decision of a competent lower court. Black’s Law Dictionary 4th Edition, defines an appeal as, “the process of submitting a lower court’s decision to a higher court for possible review or reversal.” See the decision of this court in Razamba and another v Abomugisha Civil Appeal No. 027 of 2024, [2025 UGHC 683], August 18, 2025. 3 5 10 15 20 25 As such, it is important to protect integrity of the appellate processes to ensure fairness to respondents, that grounds of appeal are well formulated and argued. Failure to properly substantiate grounds of appeal, prejudices the fair and considered evaluation of an appeal. Second, the High Court’s appellate powers are limited by statute, see Article 139(1) and (2) of the Constitution. Third, the principles governing the drafting of grounds of civil appeals, also apply to criminal appeals. The Criminal Procedure Code Act, the principal statute governing appeals to the High Court is silent on the formulation of the same. This is a lacuna in the law. Section 28(2) of the Criminal Procedure Code Act, refers to grounds and grounds alone. In Tukahirwa Sulaiti v Uganda, Criminal Appeal No. 353 of 2020, 2026 UGCA 199 (8 June 2026) the Court of Appeal considered the competence of a ground of appeal, citing its own decision in National Insurance v Pelican Air Services (2004) UGCA 42 (30 July 2024); “A ground of appeal must challenge a holding, a ratio decidendi and must specify points which were wrongly decided. Failure to comply with the rule renders the ground of appeal defective and liable to be struck off.” The Court of Appeal in the same decision also cited Sseremba Dennis v Uganda Criminal Appeal No. 480 of 2017 that emphasizes that a ground of appeal must challenge a specific finding or holding. Learned Counsel for the respondent cited Mugerwa John v Uganda Criminal Appeal No. 0375 of 2020, for a similar proposition, that “a simple reading of the first ground of appeal shows that the appellant has not pointed out what point of law or fact, the learned Trial Judge failed to evaluate.” I find that Ground 1 of the memorandum of appeal is too general and order it struck off. Ground 1 also, is unsustainable on a point of law 5 10 15 20 25 because it offends Section 203(4)(a) of the Magistrates Courts Act, Cap 19 (the “Magistrates Courts Act”) as amended, provides, “ (4) Where an accused person has been acquitted by a magistrate’s court, the Director of Public Prosecutions may appeal, or sanction an appeal in such manner as may be prescribed by the Minister by statutory instrument, on the ground that the acquittal is erroneous in law—(a)to the High Court, where the accused person has been acquitted by a court presided over by a chief magistrate or a magistrate.” The effect of this provision is that Ground 1 of the memorandum of appeal on its face is also prohibited by statute. Whereas, appeals against convictions provided for by Section 203(1) and (2) of the Magistrates Courts Act are permitted on matters of fact and law, appeals against acquittals by the DPP are limited to matters of law only. In Uganda v Byaruhanga John (Criminal Appeal No. 9 of 2024 arising from Criminal Case No. 98 OF 2022; HCT-11-CR-CN-009-2024) [2026] UGHC 634 (4 June 2026) , this court considered the effect of drafting defective grounds of appeal, which reference errors of fact in appeals against acquittals, “A cursory reading of the 3 grounds drafted by the learned DPP , points to errors in fact in the lower court’s decision. This drafting is prohibited by Section 203(4)(a) of the Magistrates Courts Act. Excising the offending word, “and fact” renders the grounds incoherent as the evidence complained of are facts or appreciation of the same.” In respect of Ground 2, there is a disagreement among the parties to the appeal on the finding that the respondent was found not to be in 5 5 10 15 20 25 particeps de criminis . Learned Counsel for the Appellant attacked the magistrate applied the wrong legal test to participation, and ignoring Section 19 of the Penal Code, and requiring proof that the respondent personally delivered the injury-causing blow. Learned Counsel for the appellant disagreed with the acquittal of the respondent on the basis that there was a reasonable doubt that he participated in commission of the offence. Learned Counsel submitted that the ingredients of unlawful intention to cause death were defined in Uganda v Muwanga and another (Criminal Session No. 456 of 2018) as a failed or aborted attempt to murder another person. That a person must take a direct step towards killing and must have a specific intent to kill. Learned Counsel cited Section 19 of the Penal Code Act, that provides for liability of principal offenders who are deemed to have taken part in committing the offence. Learned Counsel disagreed with the finding of the learned Trial Chief Magistrate, that there was no evidence that shows the respondent delivered the fatal blow. Counsel cited Uganda v Odhiambo Tom and another (Criminal Session Case No. 0122 of 2015), where court held that physical involvement in the harmful act even if not delivering the fatal blow is sufficient to attract principal liability under Section 19 (ibid). Counsel also cited Uganda v Mayengo and others, Criminal Session No. 0162 of 2017 that stated there are different modes of participation in crime, that each give rise independently to criminal responsibility. Learned Counsel for the respondent defended the decision of the learned Chief Magistrate by stating the prosecution had the legal burden of proof to prove all ingredients of the offence under Section 101 of the Evidence Act, Cap 8 , (the “Evidence Act”). The elements of the offence of attempted murder are spelled out in Section 187 of the Penal Code Act, 5 10 15 20 25 30 “Any person who- (a) Attempts to unlawfully to cause the death of another; or (b) With intent unlawfully to cause of the death of another , does any act or omits to do any act, which it is his or her duty to do, the act of or omission being of such nature as to likely endanger human life, commits a felony and is liable on conviction to imprisonment for life. The element of participation, particeps criminis is defined as both an action and omission, whichever applies to the circumstances. I now turn to the record of proceedings. At page 8 of the record, the victim stated as follows: “I was near the main road. The accused threw a log with a nail at me. I dodged it. Accused jumped on me and hit me with the same log. He hit me on the head with the log. The log missed me narrowly. Present were PW 2 Owumigisha Mary. The log split my head at the top.” He further added that the motive of the respondent’s actions were land disputes in their home. PW2 in her testimony at page 9 of the record stated the respondent hit the victim PW1 with a log with a nail in it. She corroborated PW1’s testimony that the motive was land conflicts. PW3, Det Cpl. Niyonzima Arthur told court the victim and respondent are brothers at page 11 of the record. That the respondent admitted assaulting the victim. The respondent DW1 in his testimony denied assaulting the victim at page 20 of the record. He told court, 7 5 10 15 20 25 “I have never assaulted the complainant. I did not have a panga and I never attacked the complainant.” He repeated the same statement on cross examination at page 21 of the record. He told court he did not reach the scene. DW2, Musingusi Fred, also told court at page 22 of the record of proceedings, he did not see the respondent assaulting the complainant. The commotion complained of surrounded demolition of a house by the victim, PW1. DW3, Byaruhanga Nazario, told court, the respondent and himself were a distance from where the house was demolished by the victim at page 27 of the record. The evidence led by the prosecution set out the three ingredients of the offence. Two were not in question. It is only the third participation which was in question. Participation was alleged by PW1, PW2 and PW3. The Defence witnesses, DW1, DW2 and DW3 in their testimony denied participation of the respondent in the crime. They placed him away (about 500 meters) from the scene of altercation. The prosecution did not impeach the defence witnesses in any one of 3 of the 4 methods permitted by Section 154 (a)-(c) of the Evidence Act, these are: (a) evidence by persons who believe a person is unworthy of credit; (b) proof that any of the witnesses has been bribed and (c) proof of former statements inconsistent with testimony on the stand. As a result, the learned Chief Magistrate could not summarily dismiss the defence witnesses in his evaluation of the evidence. I find that the acquittal was not made in the face of overwhelming evidence connecting the respondent to the charges. It was an exercise of careful evaluation of the evidence before court, and application of the evidentiary standard of the third ingredient of participation in an offence of alleged murder . This was not an application of the wrong legal principles, and no error of law can be alleged in the premises. 5 10 15 20 25 30 “A trial judge is not bound always to make a finding one way or the other. Rather , in appropriate cases, the judge can, and should, decide on the basis that the party bearing the burden of proof has failed to discharge it.” See Bamber v Hartman Pacific Pty Ltd [2018] NSWCA 248, [90]. This was the reasoning of the learned Chief Magistrate to the effect that the prosecution had failed to discharge is legal evidentiary burden under Section 101 of the Evidence Act. Each side, the prosecution and defence led witnesses. I find that the evidence on the record supports the finding of the trial court that the defence testimony created a reasonable doubt in the evidence led by the prosecution of the respondent’s participation. I have already found that the prosecution failed to impeach the defence witnesses. I also find that the learned Chief Magistrate correctly exercised his discretion based on the evidence before court, and there was a logical basis for his findings; and no manifest basis that the Chief Magistrate was wrong in the exercise of his discretion. See Mbogo v Shah 1968 EA 10 , where Newbold, President of the Court of Appeal for Eastern Africa held. ““… a court of appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge has been clearly wrong in the exercise of his discretion, and 9 5 10 15 20 25 that as a result there has been a miscarriage of justice.” [Emphasis mine]. No such basis exists in the instant case, to interfere with the discretion of the trial court, even though another tribunal may have arrived at a different decision if the learned Chief Magistrate believed the prosecution’s version over the defence’s version of events. I find that there was a reasonable basis for the learned Trial Magistrate to find that the third ingredient of particeps de criminis was not established to the required evidentiary standard in respect of the respondent’s actions and the commission of the offence. This court as a first appellate court while weighing the evidence must bear in mind, it did not see or hear the witnesses. In Father Narcensio Begumisa and 3 others v Eric Tibebaga [UGSC 18 of 2004] cited with approval in Twongo v Uganda Criminal Appeal No. 34 of 2018, 2024 UGSC 48 at page 9, where the Supreme Court laid down the law, “……….Although in a case of conflicting evidence the appeal court must make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions.” The learned Chief Magistrate by holding that the third ingredient of participation had not been established by the prosecution beyond a reasonable doubt, did not apply the wrong legal principle to acquit the respondent. His finding that there was an atmosphere of commotion is supported by the evidence on the record, namely DW2 and DW3’s testimony. In conclusion, Learned Counsel for the appellant excessively relied on the dispute over the property between the two brothers, PW1, and DW1, absent firmer evidence of participation by the respondent. Motive while present cannot supersede participation, especially where 5 10 15 20 25 participation is an ingredient of the offence. This collateral attack nearly prejudiced Ground 2, whose formulation fails to show in which respect the learned Chief Magistrate applied the wrong legal principle. In Uganda v Mwesigwa Rashid and Others (Criminal Case 40 of 2025) [2025] UGHC 1130 (23 October 2025), this court held that motive and prior threats alone cannot suffice to convict an accused person absent proof of participation, “What court had before it, using the test in Rananlal T. Bhatt v R. [1957] EA 332 cited by Counsel for the accused, was evidence of possible motive, and no other . This motive could have supported other offences but not murder , where participation is an essential ingredient for proof of the offence.” Attempted murder like murder , is an offence where participation is an essential ingredient for proof of the offence under Section 187 of the Penal Code Act. Mbogo op cit, allows the appellate court only to disturb a conclusion where the evidence on the record does not support the decision by the trial court, the degree of deviance must be so grave or manifest that it amounts to a miscarriage of justice. Accordingly Ground 2 fails. Findings and Conclusion: 1. Ground 1 is stricken off the record. 2. Ground 2 fails. 3. The entire appeal fails and stands dismissed. 11 5 10 15 20 25 I SO ORDER, DATED AT KABALE THIS 10th DAY OF SEPTEMBER 2026. SSEMOGERERE, KAROLI LWANGA JUDGE. Judgment delivered in open court on September 11, 2026. Rev. Ezra Bikangiso for the respondent. Ms. Julie Najjunju for the appellant. Respondent is absent. SSEMOGERERE, KAROLI LWANGA JUDGE. 5 10 15