High Court at Kabale Convicts, Twesigye Simon Kyemese, for aggravated robbery, affirming that once an accused chooses to testify, inconsistent statements may reinforce the prosecution’s case.
- Waboga David
- Oct 9
- 3 min read
Updated: Oct 10
FACTS
The accused, Twesigye Simon Kyemese, was charged with aggravated robbery contrary to Sections 266 and 267(2) of the Penal Code Act.
It was alleged that on 13th March 2022, near Kabale National Teachers’ College, the accused robbed Babigamba James of two mobile phones and cash totaling UGX 971,000, and immediately threatened him with a panga.
The victim testified that he had known the accused for about one and a half years as a resident of the area. The robbery took place around 8:30 p.m. under moonlight, and though the assailants included children aged about 14–15, the victim identified the accused as one of the perpetrators. The accused was later arrested at night during a patrol while in possession of a panga, padlocks, and a jerrycan containing a black liquid.
The accused denied the charge, asserting an alibi that he was at home and later arrested while on duty as a boda boda rider.
ISSUES
Whether the prosecution proved the ingredients of aggravated robbery beyond reasonable doubt.
Whether absence of physical exhibits (such as the panga) fatally weakened the prosecution’s case.
Whether the single identifying witness was reliable.
LEGAL REPRESENTATION
For the Prosecution, Ms. Grace Nabaggala Ntege, Chief State Attorney, Kabale (Office of the DPP).
For the Defence, Mr. Felix Bakanyabonera, Counsel on State brief.
Court Assessors, Ms. Mercy Kembabazi and Mr. Livingstone Ndyamutunga.
SUBMISSIONS
Prosecution
Argued that all ingredients of aggravated robbery were proved beyond reasonable doubt. The complainant positively identified the accused, who was familiar to him and was arrested soon after the crime in the same vicinity carrying a panga.
Defence
Denied the charge, asserting an alibi. Counsel contended that the failure to tender the alleged panga or stolen property as exhibits created reasonable doubt in the prosecution’s case and that the identification evidence was unsafe, being based on a single witness at night.
Assessors
Recommended acquittal, citing:
Lack of corroboration from PW2 and PW3;
Failure to recover stolen property; and
Non-production of the panga as an exhibit.
COURT’S FINDINGS
Justice Ssemogerere disagreed with the assessors and invoked Section 83(3) of the Trial on Indictments Act (Cap 23), giving reasons for departing from their opinion.
On Absence of Exhibits
The Court, relying on Wanzama & Others v Uganda (2001) UGSC 13, held that non-production of exhibits is not a contradiction unless it contradicts testimony on record. The absence of exhibits was therefore not fatal since the victim’s clear and unchallenged testimony established the presence of a panga and the accused himself admitted carrying one on cross-examination.
On Identification Evidence
The Court accepted that crimes like robbery often occur at night, relying on a single identifying witness. Citing Abdullah Nabulere & 2 Others v Uganda (Cr. App. No. 9 of 1978), the Court noted that the reliability of such evidence depends on the conditions and the witness’s prior familiarity with the accused. The complainant had known the accused for over a year and identified him by moonlight, rendering the identification credible.
On the Accused’s Defence
The accused’s testimony was found to be inconsistent and self-contradictory. His admission during cross-examination that he carried a panga and had fled from the police undermined his alibi. The Court held that once an accused chooses to testify, inconsistent statements may reinforce the prosecution’s case.
On Proof of Ingredients of Aggravated Robbery
Theft was proven through PW1’s evidence that the property was taken without consent.
Use or threat of violence was proven through evidence that the accused threatened the victim with a panga.
Possession of a deadly weapon was proven by both PW1’s testimony and the accused’s admission.
Participation was established through credible identification evidence.
HOLDING
The Court found that the prosecution proved all ingredients of aggravated robbery beyond a reasonable doubt. The accused, Twesigye Simon Kyemese, was convicted of aggravated robbery under Sections 266 and 267(2) of the Penal Code Act.
Sentencing was scheduled for 13th October 2025.
KEY TAKEAWAYS
Non-production of exhibits (such as a weapon) is not necessarily fatal to the prosecution’s case where the testimony on record remains uncontroverted and credible.
Section 83(3) of the Trial on Indictments Act empowers courts to depart from assessors’ opinions with reasoned justification.
Single-witness identification at night may suffice if the witness had prior familiarity with the accused and the conditions allowed reliable observation.
The credibility and consistency of the accused’s defence are crucial, contradictions can reinforce the prosecution’s case.
Read the full case
.jpg)
Comments