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THE RIPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CRIMINAL APPEALS NOS. 39 E L29 OF 2O2O

I.MAZUKU JONATHAN

2.MPAMULUNGI JUSTINE APPELLANT

VERSUS

UGANDA ....RESPONDEI{T

(Appeal from the convlction and sentence of the Htgh Court of Uganda at
I{akawa before Hon. Mr. Oyuko Anthony OJok dated 3'd February 2O2O)

CORAM: HON. JUSTICE RICHARD BUTEERA' DC.,

HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA
HON. JUSTICE OSCAR KTHIKA, JA

JUDGMENT OF COURT

The Appellants were indicted and convicted of the offence of Murder contrary to
sections 188 and 189 of the Penal Code Act and sentenced to 25 years'
imprisonment.

The Appellants were dissatished with the decision of the trial court and l-rled this
appeal against both conviction and sentence on the following grounds;

1. That the L,earned Trial Judge erred in law and fact when he convicted the
Appellants based on uncorroborated circumstantial /canine evidence.
2. That the Learned Trial Judge erred in law and fact when he misconstrued
the findings of the expert in regard to the samples of soil picked from the
Appellants.

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 3. The Learned Trial Judge erred in law and fact when he failed to take into
account principles governing admission of caline evidence.
4. That the Learned Trial Judge erred in law and fact when he convicted the
second Appellant for not testifying against the frrst Appellant.
5. The Learned Trial Judge erred in law and fact when he disregarded the
Appellants' defence of alibi.
6. The Learned Trial Judge erred in iaw and fact when he sentenced the
Appellants to 25 years' imprisonment, a sentence that is harsh and
excessive in the circumstances of the case by not taking into account a.ll
the mitigating factors.

Background

The facts as accepted in evidence at the trial are as follows;

On 16th August 2Ol7 at about 6:00am a one Nakasi rang Kazibwe Charles, the
defence secretar5/ LC1 of St. Francis zone, Kawempe Division and informed him
that a dead body had been found dumped at a rubbish heap. Kazibwe then
informed the o/c-Bwaise Police Post and thereafter rushed to the scene. shortly
after, the O/C-Station Kawempe Police Division ASp Aanyr: Agnes, Detective
Corporal Asindua the SOCO (scene of crime officer) together with other police
Oflicers and a Police sniffer dog arrived at the scene. The sniffer dog was given
access to the crime scene whereupon it commenced tracking of the scents which
led to Katogo mne. It then entered the house of the 1"t and 2"d Appellants who
were both inside the room and sat next to the lst Appellant who was seated in a
chair. Both Appellants were arrested and taken to Kawempe police Station. The
deceased was taken to Mulago Hospital mortuary for post mortem.

An autopsy was carried out on the deceased's body which revealed the cause of
death as manual strangulation. On 16th August 2077, the scene of crime was
visited and a sketch plan drawn. The following day a search was conducted in
the Appellants' home in their presence. Exhibits were recovered including a faded
black grey skirt with soil stains, a pair of closed shoes stained with soil, a pair

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ofopen shoes stained with blood and soil inside it. The 2"d Appellant recorded a
charge and caution statement in which she admitted that the recovered shirt
arrd open shoes belonged to them.

Repreaentation

At the hearing of the appeal, Ms. Wa.kabala Susan on private brief, appeared for
the Appellants while Ms. Caroline Marion Achio, Chief State Attorney, appeared
for the Respondent. Both parties filed written submissions which were adopted
by this court.

Conslderatlon of the appeal

This being a l-rrst appeal, it should be recalled that the duty of a ltrst appellate
court is to re-eva.luate the evidence, weigh conflicting evidence and reach its own
conclusion on the evidence, bearing in mind that it did not see the witnesses
testify. (See Pandya v R [195{ EA p.336 and Klfamunte v Uganda Supreme
Court Crlmlnal Appeal No. 1O of 1997 and COA Crimlnal Appeal No. 39 of
1996. In the latter case, the Supreme Court held that;

"We agree tlnt on a first appeal, from a conuiction bg a Judge tle Appellant
is entitled to haue the appellate Court's own consideration and uieuts of th.e
euidence as a uhole and its outn decision thereon. The first appellate court
ha.s a dutg to reuiew tle euidence ofthe case and to reconsider the materials
before the trial judge. The appellate Court must then make up its own mind
not di.sregarding the judgment appealed from but carefullg uteighing and
considering it."

We have kept these principles in mind in resolving this appeal.

We shall resolve the grounds of appeal in the order in which the parties argued
them.

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Grounds 1,2 and 3

The appellants counsel argued grounds 7 and 2 together while the respondent's
counsel argued grounds 7,2 ar,d 3 together. We shall resolve grounds 7,2 and.
3 together.

1. That the Learned Trlal Judge erred ln law and fact when he convlcted
the Appellants based on uncorroborated clrcumstantlal /canlne evldence.

2. That the Learned Trlal Judge erred in law and fact when he
misconstrued the flndings of the expert in regard to the samples of soll
picked from the Appellants.

3. The Learned Trial Judge erred ln law and fact when he failed to take
lnto account princlples governlng admlsslon ofcanine ewldence.
Appellant's submlssions

Counsel submitted that the appellants were convicted solely based on the
evidence of the sniffer dog and yet such evidence is circumstantial and therefore
needs corroboration. Counsel relied on the decision in Godl Akbar Vs Uganda,
S.C.C.A No. 03 of 2013 for the proposition that in a case depending exclusively
upon circumstantial evidence, the court must find that the inculpatory facts are
incompatible with the innocence of the accused and incapable of explanation
upon any other reasonable hypothesis than that of guilt.

Counsel submitted that the witnesses presented by the prosecution were

untruthful and their testimonies were filled with discrepancies, contradictions
arrd irregularities. Counsel relied on the Supreme Court decision in Obwalatum
Francis Vs Uganda, Crlmlnal Appeal No. 3O of 2O15 for the proposition that
where contradictions and discrepancies are grave, this would ordinarily lead to
the rejection of such testimony unless satisfactorily explained.

Counsel submitted that PW5 Detective Corporal Kayondo Saidi stated that there
were 3 officers that entered the Appellants' house at the time of arrest including

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the dog handler, the OC station ASP Asanyu and DC Kayondo Saidi and yet the
evidence of PWl was that PW4 did not enter the Appellant's house. Counsel
submitted that this cannot be a minor or trivial discrepancy because it goes to
the root of one of the main exhibits that was discovered from the Appellants'
house which is the faded black grey skirt that bore stained particles of soil.
Counsel submitted that the evidence of PW4 ought to have been struck off the
record for being inconsistent with that of the other prosecution witnesses.

Counsel argued that there was no direct evidence presented to the trial court to
satisfy the ingredients of murder as presented by the prosecution and it relied
solely on circumstantial evidence. Counsel relied on the decision in Bullla and

Anor Vs. Uganda, (Crlmlnal Appeal IYo.16 of 2O15) in which the Supreme
Court held that before a conviction is upheld on the premise of circumstantial
evidence, the Court has to consider and ensure that the inculpatory facts are
incompatible with the accused person's innocence.

Counsel submitted that a-Ithough the leamed trial Judge rightly set out the test
when dea-ling with evidence of sniffer dogs as set out in case of Wllson
Kyekurugaha vs. Uganda Crlmlnal Appeal No. 51 of 2014, the evidence
presented by the prosecution specifically, PWI did not fit the admissibility test'
In addition, the prosecution did not lead evidence to prove the involvement of the
second Appellant as a perpetrator of the murder and the dog never identil-led her
as a suspect. Counsel argued that the assessors that sat in for the trial and
observed the witnesses give their evidence, returned a NOT GUILTY verdict
because they were not convinced that the prosecution based on the
circumstantial evidence presented had proven their case beyond reasonable
doubt.

Respondent's Submlsslon

In reply to the Appellant's arguments on canine evidence, counsel relied on the

case of Wllson Kyakurugaha Vs. Uganda COA Crlmlnal Appeal No. 51 of
2O14, this Court approved six principles which should be applied as guidelines

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in dealing with canine evidence and these have a bearing on the exclusion
/admissibility and the weight to be attached to canine evidence;
The evidence must be treated with the utmost care by the Court and given
the fullest sort of explanation by the prosecution.
1l There must be material before the Court establishing the experience and
qualihcation of the dog handler.
llt The reputation, skill and training of the tracker dog is required to be
proved before the Court (by the handler/trainer who is familiar with
characteristics of the dog).
lV. The circumstances relating to the actual trailing must be demonstrated.
Preservation of the scene is crucial and the trail must not have become
stale.
The human handler must not try to explore the inner workings of the
animal's mind in relation to the conduct of the trailing. This reservation
apart, he is free to describe the behavior of the dog and give an expert
opinion as to inferences which might properly be drawn from a particular
action of the dog.
VI The court should direct its attention to the conclusion which it is minded
to reach on the basis of the tracker evidence and the perils in too quickly
coming to that conclusion from material not subject to the truth eliciting
process of cross-examination.

That the relevant pieces of evidence are found in the testimony of PWl, PW4,
PW5 and PW7. That Mr. Okello Felix consistently and firmly told Court that he
is the one who handled the dog on this occasion. That he was trained in basic
dog handling from Nsambya Canine headquarters and he had experience of 11
years (page 16 ofthe record of appeal).

Counsel for the Respondent submitted that the Appellants' claim that the scene
was tampered with and stale for a credible dog tracking exercise was not backed
by evidence and not in compliance with other principles. Counsel submitted that

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there was corroboration of the Canine evidence. With regard to the
inconsistencies, counsel submitted that although there was some inconsistency
regarding time when the search was conducted in the house of the Appellants
and the number of items recovered, it is not in dispute that a search was
conducted and that zrmong the items recovered was the black skirt and a shoe
which belong to the Appellants. Counsel further argued that the inconsistency
regarding when the search took place should therefore, be considered minor and
does not go to the root of the case.

Conslderetlon of grounds 1,2 and 3

It is trite law that the prosecution has the duty to prove each element of al
offence beyond reasonable doubt. For the Appellants to be convicted of murder,
the prosecution must prove, beyond reasonable doubt, the following elements;

1. That there was death ofa human being.

2. The death was caused by some unlawful act.
3. The unlawful act was actuated by malice aforethought;
4. It was the accused who caused the unlawful death.

In the present case, it is not in dispute that Namuwonge Jennifer is dead and
that her killing was unlawful. The post mortem report marked PExh 1 indicated
that the cause of death was strangulation. The manner of her death pointed to
the fact that her demise was actuated by malice aforethought. What is in
contention is the participation of the Appellants in the killing of the deceased.

The prosecution produced evidence of 7 witnesses, all being police officers and
amongst them was the dog handler.

PWl, the dog handler attached to the canine unit department, testified that he
was called by the OC Kawempe Police Station who informed him that there was
a murder at St Francis Bwaise. When he arrived at the scene, he found it
cordoned off by the scene of crime officer, DC Asindua using police tape. He also
found other police men already at the scene including the investigating officer

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DC Kayondo', in charge police post Bwaise ASP Wangolo and sergeant Buyinza
who were at the scene managing the gathering crowd.

At the scene, he went with the police dog to the body ofthe deceased which was
lying face up and covered with rubbish right from the leg up to the neck. The
rubbish consisted of banana peels, kavera, dry grass and there were bare footed
marks of footsteps around the body.

PW1 testified that he introduced the police sniffer dog number 70 Neval, which
picked the scent around the body and moved for a distance of half a kilometer
leading him to the house of the two Appellants. When the dog arrived at the
Appellalts' place, the door was open so it entered the house where Mazuku and
Justine were. Mazuku was seated on the sofa chairs and was facing the opposite
direction. The sofa chair as they entered was on the right, the bed in front of
them and then the other side was where he had his music system. The woman,
2"d Appellant, was behind the curtain. The dog entered and went direct to A1
sniffed him and sat in front of him.

PW2 tendered in the post mortem report which indicated the cause of death
being by strangulation and described the body as having no injuries but with
numerous old scars aged 29 years and normal status.

PW4 was the investigating Officer ard he testified that he reached at the crime
scene together with a team of detectives headed by Deputy OC CID, at around
8:00 am in the morning. That the crime scene was situated in between two
houses, one was a residential house and the other one was a pit latrine with a
trench that passes nearby the toilet. PW4 stated that they found people at the
crime scene and after arriving at the scene, PW4 cordoned the scene to stop the
crowd from accessing it. PW4 took photographs which were exhibited and
collectively marked PEX. 3.

When the sniffer dog led them to the home of the Appellants, the Deputy OC CID
conducted a search and one black faded and grey skirt was recovered stained
with some particles of soil. One pair of closed shoes was also recovered and its

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sole was stained with some particles of soil. From the crime scene, PW4 also
picked soil samples for comparison and that the soil on the shoe and skirt was
not a.ll that dry, it was like a stain. After recovering these exhibits, he submitted
them to the Government Analytical Laboratory (GAL) on police form I7A.

During cross examination, PW4 testified that the dog handler was the first officer
to enter into the house. Under further cross examination, PW4 testified that it
would not be right to say that it is the dog handler who stepped on the skirt
because a dog handler is a trained police officer, the moment a dog enters or sits
in front of a house where you are tracking the dog handier will not enter, he will
have to wait for PW4 as a Scene of Crime Officer (SOCO). When he entered and
the dog sat in front of the l"t Appellant, the dog handler also stood and invited
PW4 to enter with a team of detectives. The team that searched the house asked
the l"t Appellant about the shoes and he said that the shoes that were recovered
from his house were his shoes. PW4 also testified that he recovered blood
samples from the body of the deceased and submitted all of them to the
Government Analytical Laboratory.

PWS testified that he was €unong the team that was commanded by the OC
station Kawempe together with the SOCO and the Dog handler. He testified
further that a police dog was introduced to the body and it led them to the house
of the Appellants which was a-lmost 500 meters away from the scene. PWS
testified that the search was conducted with him among the team and they
recovered, among others, faded black grey skirt that was stained with soil, a pair
of closed shoes that was also stained with soil and they also recovered a pair of
open shoes that had blood stains.

Whatever was recovered from the Appellant's home, was taken to police exhibited
and marked. Thereafter it was submitted to the Directorate of Government
Analytical Laboratories at Wandegeya together with blood samples and high
virginal swabs that were retrieved from the deceased alongside the blood samples
that were retrieved from both Appellants. PW5 testified during cross examination

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that they did not bring the sandals to court because upon consultation with the
state, the sandals were not part of the evidence they intended to rely on in this
case and therefore they were left out. PW5 testifred that they went to the
Appellant's house' twice on that day and also went there the next day to conduct
a search in the presence of the 1"t Appellant.

PW7 was the chemist from the Government Analytical Laboratory and according
to her testimony, the conclusion was that the soil traces from exhibit AK7 (skirt)
and exhibit AK8 (shoe) had a high degree of comparability in terms of their
structure, texture and manifestation of organic material in them. On a scale of
5 they were close to a scale of 3 to 4. When they compared each of these exhibits
with the soil that was picked from the scene of crime bearing in mind that the
quantities were far apart, the degree of comparability was not too strong. They
could not adequately conclusively have a perfect match for them.

PW7 testified that on a scale of 1 to 5, the soil of the shoes basing on the
quantities from the shoes and the quantity received from the scene, she would
give it a 2. On a scale of 1 to 5, PW7 would give the skirt 2. PW7 also testified
that soil may defer according to location. That as individuals walk, they interact
with the soil on the ground so depending on the weather and how compact the
soil is, some of it gets attached to the shoes and some of it is loose so soil can
get in contact with that body and it is retained or not. All in all, PW7 testified
that on a scale of 1 to 5, the possibility for the soil on the skirt and the shoe to
have been soil from the scene is 2.

The Appellants on the other hand raised the defence of alibi. The testimony for
both Appellants shall be delved into later.

The evidence relied upon by the prosecution in this case is largely canine
evidence since there were no eye witnesses. The sniffer dog led the handler and
a team of detectives to the home of the Appellants, who are husband and wife
and this led to their arrest. A search was conducted on the 17th August 2017
after the Appellants had been arrested on the 16th August 2Ol7 and items were

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recovered, which the prosecution relied upon in their evidence. The items
with soil on it and a pair of closed
recovered included a black faded grey skirt
shoes which a.lso had soil on them and were submitted to the Government
Analytical Laboratory. There were also open shoes recovered which according to
PWS, had soil and blood stains, but were never produced by the prosecution.
PW5 stated that after consultation with the State, the open shoes were found not
to be relevant to the case and left out.

Given that the major piece of evidence relied upon by the prosecution to pin the
Appetlants is that of the snilfer dog, it is important to note that such evidence
ought to be admitted and treated with caution.

This Court, in Wllson Kyakurugaha Vs Uganda, C.A.C.A No. 51 of 2O14 cited

the Kenyan case of Omondl & Anor as R, [7967] E.A. 8O2, where at p. 8O7 the
High Court observed as follows with regard to sniffer dog evidence: -

"But ute think lt proper to sound a note of uarnlng about what' uslthout
due levltg, ure mag call the evidence of dogs. It is euidence uhlch ute think
should be admlt:ted ulth cautlon, and if admltted should be treated ulth
great care. Before the evldence ls admltted, the Court should' we thlnk,
ask for euldence as to hout the dog has been tralned, and tor evldence as
to the dog's reltabllttg.

To say that a dog has a thousand arrests to lts credlt ls clearly, bg ttsefi,
qulte unconvlnclng. Clear evldence that the dog had repeatedly and
taultlesslg folloued d sce t ovcr d{ficttlt country uould be requlred, ue
thlnk, to render thls klnd of euldence admlsslble. But ha vlng recelued the
evidence that the dog was, tJ we mlght so descri,be lt, a rea.sonablg rellable
tracklng machlne, the Court must neucr Jorget that euen a pack of hounds
can change toxes and that this klnd oJ evldence ls qulte obotously JallJbte."

The Court also cited, with approval, the decision by Gaswaga J., in the case of
Uganda as Muhelrue & Anor, Mbarara Hlgh Court Crlm- Sessdon Ccrse i\Io.
7 7 of 2O72, where the learned judge recast and proposed the following

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principles to guide trial Courts with regard to admissibility and reliance on dog
evidence; as follows: -

"The euldence m:ust be treated utlth utmost care (cautlon) bg Court a'r.d
gluen the fullest sort oJ explanatlon bg the prosec,utlon.

2. There must be materlal beJore the Court estabtlshlng the exper-lence

and. quallJlcatlons oJ the dog handler.

3. The reputation, slcitt and tro;lrrrlrr.g oJ the tracker dog ls requlted to

be proued beJore the Court (oJ course by the hand.lerltralner uho ls lannlllar
tDlth the charactertsttcs oJ the dog[

4. The clrcumstonces relatlng to the acfi.tal tralllng lmust be

d.emonstrated. Presentation of the scene ls cttr.ciar. And, the trall must not
ha ve become stq.le.

5. The human handler larust lrrot try to explore the lnner urcrklngs oJ
the anllmcrl's m,lnd ln relation to the conduct of the tralllng. This
resentatlon apart, he ls lree to descrlbe the beha ulour oJ the dog and ghn
an expert opinlon as to the lnterences uthlch mlght properlg be draun trom
a particular actlon by the dog,

6. The Court should. dbect lts dttentlon to the concluslon is

ul,hlch lt
mlnded. to reach on the basls of the trocker evldence and the perlls ln too
qutcklg cotning to that concluslon trorn materlal not subJect to the tnfih-
ellcltlng process of cross-examinatlon."
After approving of these proposed principles, the Court then stated as follows: -

"We ulsh to add tha.t there are tuto altpects thot are lrnport,,.rtt to be
obsenEd Flrstly, uthat ls the threshold Jor such evldence to be receirnd, bg
the trlal Court? Secondlg afier the receptlon or a{mlsslblllty hout ls sach
evldence to be consldered? In the first place, ulth regard to a.dnlsslbllltg,

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utcregard lt essentlal that the tralnlng and experlence ol the dog handler
and hls assoclatlon wlth the dog ln questlon be estobllshed.

Secondlg, there mzst be establlshed ln

evldence the naf,;,tre of tralnlng,
sklll and perJorrnance oJ the dog ln questlon wlth rcgard to the pa;rtlcrzlar
subJect at hand. be lt tracklng scents, or drugs, or uhatetnr speclallzed
skllls lt allegedly possesses so crs to establTsh lts credentlals tor that sklll.
The Joregolng are prerequlsltes before the admlsslbtlltg oJ such eridence.
Itletertheless, once admltteL lt ls clear that such eutdence mast be treated
tttlth cautlon cs lt ls posslblc that lt nloy be falllble."
In the instance case learned trial Judge (at page 50 of the record of appeal) held
that;

"In the instant case the dog ltandler told court tlnt he receiued training in basic
dog handling and acre (sic) ottaining from Nsambga Canine Headquarters and
has tuorked in the dog section for 11 gears. That the dog in question no. 7O Neual,
is trained in picking scent, that is a Germon Shephard that was trained for 6
months ond hns a certificate in canine headquarters. That the dog is trained to
help police in detection of crime uthich CID cannot manage on ttteir own uithout
the telp of the technical team. That in this ca.se the dog trained, sat...."

The learned trial Judge took the view that the prosecution had established the
training and experience of the dog handler and that it had also established the
nature of training, skill and performance of the dog in question. It was on that
basis that the trial Judge admitted the canine evidence. We are satisfied that the
experience of the dog handler was established by the prosecution. The dog in
question, according to the evidence of PWl, had been trained for six months and
had been in service for eight years. What was lacking however, was evidence of
association between PWl and the dog which is one of the prerequisites to be
satisfied before canine evidence can be admitted. We are of the view that the
learned Judge ought to have inquired into PW1's association with the sniffer dog
before admitting the evidence.

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Having admitted the canine evidence, the trial judge should have cautioned
himself about relying on the said evidence. This he did not do. Whereas the
learned trial Judge was alive to the principles set out in the case of Wlleon
Kyakurugaha Vs Uganda (supra), nowhere in his judgement did he caution
himself about reliance on the canine evidence before him, especially given the
fact that this was the major piece of evidence that the prosecution relied on to
pin the accused persons. The canine evidence would, as a matter of necessity,
have to have been corroborated. This position of the law is echoed in the
persuasive authority of THE STATE OF WASHINGTON v. ALLEN B. LOUCKS
98 Wn. 2d 563 (trIash. 1983f, where the Supreme Court of Washington held as
follows;
oTracklng d.og euldence ls not sulficlent bg itself to convlct a crimlnal
deJendant. Corroborating euldence tdentttying the defendant as the
perpetrator oJ the crlme ls requlred.'
The Supreme Court of Washington went on to further observe as follows;
uThe dangers inherent ln the use of dog tracklng evldence can onlg be
allevldted bg the presence of corroboratlng euldence tdentiJglng the
accused. as the perpetrdtor of the crlme. Pollce dogs cannot be conclusloelg
relled. on to follout the trall ol one lndluldual ff other human trcri ls cross
this one, or euen corne nedr lt.'
We agree entirelywith the holding in the case of THE STATE OF WASHINGTOIT
v. ALLEN B. LOUCKS (supra). It is therefore our firm view that the evidence of
the dog handler, could not, on its own, sustain a conviction of the appellants
without corroborating evidence.

Although the learned trial judge may not have cautioned himself about reliance
on the canine evidence before him, he nonetheless acknowledged the fact that
the prosecution relied entirely on circumstantial evidence and that it needed to
be corroborated. It is therefore necessary, as a first appellate court, to re-

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appraise what the learned trial Judge considered as corroborating evidence to
that of the sniffer dog.

There were two exhibits produced in court to wit a black faded grey skirt and
closed shoes with soil which were picked from the house of the Appellants. PW4,
the SOCO, is the one that recovered the exhibits and submitted them to the
Government Analytical Laboratory. PW4 testihed that when he got to the crime
scene, there were many people around the body and on arrival, he cordoned off
the scene with tape. When the dog led the offrcers to the house of the Appellants,
PW4 stated that the dog handler was the first to enter the house then the rest of
them followed. when asked during cross examination whether the dog handler
is the one that stepped on the skirt, which according to the Appellalts, was their
mopper, he stated as follows;
(No, gou utould not be rtght to so:g tha;t it ls the dog handler utho stepped
on the sklrt because a dog handler ls a tralned police officer, the rnomcnt
a dog entcrs or sits ln lront of a house where gou are tracking the dog
handler tttlll not enter, he utll hante to ualt fonr.c as ., SOCO, so uthen he
entered and the dog sat ln Jront ol the accrtsed person the dog handler
also stood and tnvlted us to enter ulth a teann of detectlues.,.'

PWs, the Investigating Officer, testified that in addition to the faded grey black
skirt and the closed shoes, there was also a pair of open shoes, which was
recovered with soil and a pair ofopen shoes that had blood stains. During cross
examination, PW5 stated that the pair of open shoes with blood stains was, upon
consultation with the state, not part of the evidence that was to be relied upon
and therefore they were left out.

We are at a loss as to why the shoes with blood stains was not presented in
evidence. PW7, a senior government analyst, testified that they did not receive
any blood sample and only received the three exhibits; exhibit packages marked
AK7, AK8 and AK9. AK7 was a faded black grey skirt stained with soil, the second

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one AK8 a pair of closed shoes, the third was AK9 which was soil sample collected
from the scene of crime.

In our view, had the open shoes with blood stains on them, been taken to the
Government Analytical Laboratory for analysis and comparison; especially given
the fact that blood samples were also taken off the body of the deceased, this
would have helped establish whether or not the lst appellant had anything to do
with the murder of the deceased. It is worth noting that PWI had earlier testified
that when he got to the body, it was covered with banana peels, kavera, and dry
grass, and that there were bear footed marks of footsteps around the body. pW7,s
evidence with regard to the laboratory tests carried out on AK7, AK8 and AK9 is
therefore crucial and thus central to this case. She testified (see pages 3O and
31 of the record of appeal) as follows;
<ln the stage of analgsls ue utent ahead and
first dld a prellnlna.ry
excrlaninatlon. We exannined the 3 exhtblts AI{7 tohlch is the skirt, had.
traces oJ soll and ue managed. to get ateut of those, AX8 whlch ls the shoe
also had. tEry m.zng traces of soil on lt and olf course AI{9 and ue
conclud.ed that all the 3 had some soll on them.

We uent ahead to characterlze them, and. analgze them ft.rst bg vlsual to

compdre the soll We did. colour of the soll, the texture, the stnt cture of
the soll and we also exo,mlned ltfor presence o! organic materlal andfor
that analgsls the rlnaniJestatlon. We also subJected. atl these exhlblts ta an
analgtLcal technlc uthich ls the XRF it ls semi quantitatlue because of the
quantltg that ue ho,d. aaallqble and ue were able to screen out all these
elements that are naturallg occurrl.ng in soil From these ff.ndlngs ue
remarked. The conclusion ur<r:s the traces Jrom exhlblt AK7 (sktrt) and
exhibtt AI{8 (shoe) had. a htgh degree of had. a hlgh d.egree o;f comparabllltg
ln terms o;f thelr structure, texture, nranlfestatlon o! organic ,neter-lal ln
them. On a scale of 5 theg uere close to a scale oJ 3 to 4.

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When ue conpared each oJ these exhlblts uttth the soil thdt uas plcked
from the scene of cr'lme bearlng in mind that the quantltles uere far apart
these utere tEry traced and thls uas sutllclent. The degree oJ
comparabllitg r,l.la.s not too strong. We could not adequatelg conclusiuelg
haae a petfect match for them..,.,..... It utould be a uague assumptlon to
st:;g thdt the soil on the sklrt and the shoe tested posltfin lor elements
retrleved trom the soll from the scene oJ crlme. On a scale of 7 to 5 Jor the
soll on the skirA and the shoe mag haue been soll Jrom the scene ls 2."
However, the learned trial Judge (see page 48 of the record) in evaluating PW7's
afore-stated evidence, found as follows;
oln the testlmong of PW7 Chrlstlne Zautede, a chemlst Jrom gotEmment
anc,lg:tlcal laboratory thot the soll sample Jrom the ltems recovered and
thc;t ftom the scene of crlmc had a high degree oJ comparabllttg ln tenns
oJ thelr structure, texture, manltestatlon oJ organlc m.aterlal ln them-
That on a scalc oJ 5 theg utere close to a scale of betueen 7, 2, 3. Wlth the
abooe scale gfinn lt only means that the soll that u)ere on the recoaered
itcms is soll from the scene oJ the crlme.'

The learned Judge further evaluated PW7's evidence (see page 51 ofthe record)
ald found as follows;
o It ls the testlmong of PW7 that the samples oJ the soll got trom the scene

oJ the crimc utas hlghlg comparable to the soil tound on the recorpred
itetns belonglng to the accused perso^ on a scale of 3. Accordlng to the
explanatlon oJ the gouernment chemlst that the soil on the sklrt t as so
llttle that theg could not do much (stc). Ctrcum,sto,ntlal euldence ls the best
klnd oJ evldence since it does not ledoe roorn Jor doubts as to the honestg
of the alleged ege witnesses and. gluen the clrcumstances of this c.r:se <Ls
testtfied bg the wltnesses.

w- 17

c{-rr \.f
I find that there ls no loglcal concluslon other than the gulltg oJ the
accused. persons. I thereJore disagree ulth the oplnion of the tuo clrsessors
for the above reasons I Jlnd the tuto o.ccl.tsed. per:soll.s gulltg as lndlcted
and. I thereJore conuict them-o

With the greatest of respect to the learned Judge, we are of the view that he
totally misconstrued the evidence of PW7. From the above excerpt, it appears to
us that the learned trial Judge misinterpreted PW7's evidence when he held that
the soil found on AK7 and AK8 was a perfect match with soil from the scene.
This was clearly not the case, PW7's testimony was that the soil on the skirt
(AK7) and that on the shoe (AK8) were not conclusively a perfect match to the
soil from the scene.

Yet it was on that basis that he convicted the appellants. That was a misdirection
on the part of the learned Judge. The evidence of PW7, if anything, was clearly
inconclusive as to the issue whether the soil found on the appellants' skirt and
shoes matched that of the crime scene, and could therefore not be relied upon
as corroborative to that of the sniffer dog.

The East African Court of Appeal in R v Manllal Purohlt [19491 9 EACA 58 held
as follows;

u..,...corroboratton ls some addltlonal euldence rendetlng tt probable that

the evldence oJ the ultness ls true a,nd lt ls reasonablg safe to a;ct upon it,
that lt rnust be lndependent evldence uthlch afJixes the accused bg
connectlng hfin or tendlng to connect hllrt ulth the crlme confirrnlng ln
,rtrrterlal partic-ular, not onlg the enldence that the crlmc has been
sollne
commltted, but also that the accused commllted lt."

The crucial question here is whether the appellants could with certainty be
placed at the scene of crime. PW7's testimony was inconclusive in that regard.

The learned trial Judge mainly relied on the evidence of Pw4, PWS and PW7 to
corroborate the canine evidence. Much as sniffer dogs have played an important

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role in police investigations for decades with their keen sense of smell being
noticed and utilized, a lot of caution has been taken before relying on their
evidence. But one fact which is clear is that, such evidence when admitted must
be corroborated by some other evidence which gives strength to the canine
evidence as presented through its handler or trainer. The Prosecution must
provide answers to any lingering questions in the afhrmative before relying on
police dog evidence. In this case, the evidence of PW4, PWS and PW7 cannot be
treated as reliable corroborative evidence to sustain a conviction against the
Appellartts.

We are of the firm view that the learned Judge erred in law and fact when he
acted upon PW7's evidence to convict the appellants when it was quite clear that
the findings did not connect them with the crime in question. PW7's evidence left
crucial questions unresolved. Any lingering doubt must therefore be resolved in
favour of the appellants. Had the learned trial judge applied the tests laid down
for treatment of evidence that is entirely circumstantial, he would have found
that the prosecution had failed to prove the case against the appellants beyond
reasonable doubt.

For the reasons given above, grounds 1, 2 and 3 of the Memorandum of Appeal
accordingly succeed; and having found as we have above, we find no reason to
resolve grounds 4, 5 and 6 ofthe Memorandum of Appeal.
In the event, we find merit in this appeal and quash the Appellants' convictions.
Accordingly, we set aside the sentences appealed against, and order for the
Appellants' immediate release from prison; unless they are being held on any
other lawful charge.

We So Order.

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Delivered and dated this day of...... P'h 2023.

RICHARD BUTEERA

Deputy Chlef Justlce

CHRISTOPHER GASHIRABAKE

Justlce of Appeal

v
-':-
OSCAR KIHIKA

Justlce of Appeal

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