ROBBERY AND EXTORTION

Simple and Aggravated Robbery

Robbery is defined under section 285 as when any person who steals anything
and at or immediately before or immediately after the time of stealing it uses or
threatens to use actual violence to any person or property in order to obtain or
retain the thing stolen or to prevent or overcome resistance to its being stolen
or retained.

In simple terms, robbery is constituted by the taking of goods from another by

violence or by putting him in fear. There are two important ingredients of the
offence of robbery.

(i) Use of violence immediately before or at the time of stealing

Where force is employed so as to steal, it will constitute the offence of robbery
only where it is employed at the very time of stealing or immediately before that
event, but not some time after the event. In Njuguna v R,1 the accused having
burgled a house and stolen therefrom was discovered without a chase at a
distance five hundred yards where he then resisted the complainant with
violence. It was held that the offence was not robbery but burglary and theft
because the element of using violence immediately after the act was lacking.

The Penal Code does not state what degree of violence is required but it must
be substantial in view of the seriousness of the offence. The offence is not
committed if the complainant is not present so that there is no violence to
him/her or to his/her person.

Where several persons go to steal and one of them, unknown to the others,
uses violence, those others are guilty not of robbery but of stealing, unless it
can be shown that they were party to the use of violence. reluctant

Mbazira Siragi & Baguma Henry v Uganda,2 the 1st and 2nd appellants in this
appeal, were convicted by the High Court (Mugamba J.) at Mbarara, on two
counts for simple robbery. They were both sentenced on each count to 15 years
imprisonment to run concurrently. Their appeals to the Court of Appeal against
conviction and sentence were dismissed, hence this second appeal.

The prosecution case may be described in two segments. The first comprises
the evidence adduced to prove the robberies. The second comprises evidence on
discovery of stolen items and a gun and bullets the robbers had during the
robberies, which evidence was adduced to prove that the appellants were
among the robbers. We would summarise the case as follows:

1
[1965] EA 583
2
Supreme Court CRIMINAL APPEAL NO. 7 OF 2004

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In the night of 23rd September 2000, at about 10 p.m., three men armed with
a gun, attacked Erineo Turinawe, PW1, and his wife Winnie, PW6, at their
house in which they also operated a bar. They beat the victims, tied them by
the arms and forced them to lie down, while they stole diverse goods, including
17 bottles of beer, a jerrycan of waragi, a radio cassette, 30 music tapes, a
handbag, a pair of trousers and a jacket, which they packed in sacks. They
demanded money as they continued to beat their victims until PW6
surrendered an unascertained amount from the day’s bar sales. The robbers
then ordered PW1 to cause the neighbour, Katarina Kikabahenda, PW2, to
open her house cum shop. When Katarina opened, the robbers attacked her
also. One of them repeatedly hit her with the butt of a gun demanding for
money. while the other two stole her shop items including 10kgs of sugar, a
box of soap, 3 packets of Hedex tablets, Pepsi packages, and a 4‖ mattress. In
addition, she surrendered to the robbers shs.75,000/-. The victims reported
the robberies to the LC1 Chairman and to Ishunguriro Police Post. None of
them recognised their assailants. It is also noteworthy that even subsequently
the victims never identified any of the appellants as one of the robbers.

On 25th September 2000, PW1 found one Kwizera Fred, PW3 playing one of his
stolen music tapes. Kwizera told him he had borrowed it from Mbazira. Upon
confirming from a mark on it that it was his, he sought assistance from the
Local Defence Unit (LDU) at Ishunguriro detach. Four of the LDU personnel
returned with him to Kwizera’s home. They asked Kwizera for the tape and he
said that Mbazira had taken it. They went with Kwizera to Mbazira’s home.
When asked for the tape Mbazira denied any knowledge of it. They searched his
house but did not find the tape. Mbazira was arrested and taken to the LDU
detach. Kwizera was not arrested. Between 26th and 29th September 2000,
Saad Gumisiriza, PW4, of the said detach, with other LDU personnel continued
the investigations to trace the stolen goods. In the course of the investigations,
they discovered around the home of Mbazira, a radio cassette, half a jerry can
of waragi, a gun and bullets. They also discovered a 4‖ foam mattress from the
home of Baguma Henry alias Karuna; and 1kg of sugar, a box of dry cells and a
tin of sleeping baby cream from the home of Mbabazi. They arrested Mbazira
and Baguma the two appellants and the said Mbabazi, who was later acquitted
by the trial court. They also arrested two other persons who apparently were
never charged. The gun and bullets were passed on to the police and later
produced in court but the rest of the discovered items were given to the
respective claimants and were never produced in evidence.

The appellants, together with Mbabazi, were indicted on two counts for
aggravated robbery. As the three eye witnesses did not identify the accused as
their assailants, the prosecution relied on the evidence that the discovered
items were some of the stolen goods and that they were found in the possession
of the accused soon after the robberies. The trial court accepted the evidence,
applied the doctrine of recent possession of stolen goods, and held that the
appellants committed the robberies. Mbabazi was acquitted on the ground that
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the items taken from his home were not particularly identified as items stolen
during the robberies. Further, the court was not satisfied that the robbers used
or threatened to use the gun produced in evidence. Accordingly, it convicted
the appellants of the lesser offence of simple robbery on both counts. The Court
of Appeal upheld the convictions on strength of the same doctrine of recent
possession of stolen goods.

The law on proof of a criminal offence by circumstantial evidence is as was

articulated by the Court of Appeal for Eastern Africa, in the leading case of
Simoni Musoke vs. R. (1958) EA 715, at p.718 that –
―… in a case depending exclusively upon circumstantial evidence, (the judge)
must find before deciding upon conviction that the inculpatory facts were
incompatible with the innocence of the accused, and incapable of explanation
upon any other reasonable hypothesis than that of guilt.‖

In the same case, the court also cited with approval, the principle stated in
Teper vs. R. (2) (1952) A.C. 480 (PC) that –

―It is also necessary before drawing the inference of the accused’s guilt from
circumstantial evidence to be sure that there are no other co-existing
circumstances which would weaken or destroy the inference.‖

( ii) The use of force must seek to put any person in fear
There must be more than a slight physical contact.
a) The force can be against any person need not be the person whose
property is stolen.
b) The force needs to be continuous.

Aggravated Robbery
This is covered under Section 286 ( 2). In the case of Wasaja v Uganda3 the
appellant was charged with robbery and with threatening to use a deadly
weapon, which offence carried a mandatory death sentence. He was convicted
in the High Court of robbery involving the use or threatened use of violence
other than by a deadly weapon and sentenced to 15 years imprisonment. On
appeal, the state argued that the appellant should have been convicted of a
capital offence. It was held that it had not been proved that the gun was a
deadly weapon, that is, capable of causing death and therefore the appellant
was correctly convicted of a lesser offence.

Under section 286 (2) of the Penal Code Act, where at the time of, or
immediately before, or immediately after the time of the robbery, an offender
uses or threatens to use or is in possession of a deadly weapon or causes death
or grievous harm to any person, such offender and any other person jointly
concerned in committing such robbery commit aggravated robbery and, on

3
[1975] EA 181

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conviction by the High Court, are liable to be sentenced to death. A ―deadly
weapon‖ includes any instrument made or adapted for shooting, stabbing or
cutting and any instrument which, when used for offensive purposes, is likely
to cause death.

In Besigensi Edison v Uganda4 the Supreme Court concurred with the Court of
Appeal that "in a charge for robbery with aggravation, the prosecution must
prove three things, namely:
1. Theft of property in this case Shs: 195,000/= and the theft of a sweater
2. A deadly weapon was used in the robbery
3. The accused participated in the robbery."

In Uganda v. Mujuni William, 5 it was held that in a case of Robbery contrary to

section 285 and 286(2) of the Penal Code, the prosecution is required to prove
the following ingredients:-
1) That there was theft of some property.
2) That there was use or a threat to use a deadly weapon at the time the
theft was committed.
3) That the accused was a participant in the Robbery.

In Uganda v. Adupa Nelson & Ors,6 it was held that in an offence of aggravated
robbery contrary to sections 285 and 286 (2) of the Penal Code Act the
prosecution must prove beyond reasonable doubt each and every one of the
following ingredients:-
1. that there was theft of some property capable of being stolen.
2. that there was use or threat to use violence during the theft,
3. that there was use of or threat to use a deadly weapon immediately
before, during or immediately after the theft or that death was caused or
grievious harm to any person during the execution of the theft, and
4. that the accused persons or any of them participated in the theft.

In Uganda v. Mukasa Ronald,7 it was held that In order for the prosecution to
succeed in a case of aggravated robbery it must prove the following ingredients
beyond reasonable doubt:
(a) theft of some property;
(b) use or threat to use a deadly weapon during immediately before or
immediately after the theft or robbery or causing death or grievous harm; and
(c) participation of the accused.

4
Supreme Court Criminal Appeal No. 09 of 2004.
5
HCT-05-CR-SC-0193 – 2003 (Mbarara).
6
Criminal High Court Session Case No. 36 of 2003.
7
High Court Criminal Case No. HCT-01-CR-SC-0015 of 2000.

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In Uganda v. Kagyenda Moses,8 it was held that where the charge is aggravated
robbery the following ingredients ought to be proved:

- That there was theft.

- That there was the use or threatened violence;
- That there was use or the threat to use a deadly weapon; and
- That accused participated in the offence.

Attempted Robbery
Under section 287 of the Penal Code Act, any person who assaults any other
person with intent to steal anything and at, immediately before or immediately
after the assault, uses or threatens to use actual violence to any person or
property in order to obtain the thing intended to be stolen or to prevent or
overcome resistance to its being stolen commits a felony.

(2) Any person who commits a felony under this section is liable—
(a) on conviction by a magistrate’s court, to imprisonment for seven y ears;
(b) on conviction by the High Court, to imprisonment for life.

8
HCT-05-CR-SC-0228 OF 2003 (High Court Mbarara)