Wakilii

Nkonge v Uganda (Criminal Appeal No. 148 of 2009)

Court of Appeal · [2015] UGCA 61 · 2015 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for murder and death sentence
Decision
Appeal dismissed; conviction for murder and death sentence upheld

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Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the appeal against conviction for murder and the death sentence. It held the application to adduce additional evidence failed, as recalling a prosecution witness to alter his testimony did not amount to new, credible evidence. The evidence of the child witness PW5, who identified his father at the scene in daylight from 50 metres, was sufficiently corroborated by medical evidence, the scene's condition and the appellant's conduct. The defence of alibi was properly rejected as belatedly raised and false. The court found no error warranting interference with the death sentence, the trial judge having weighed mitigating and aggravating factors in line with Kigula and Kiwalabye Bernard.

Facts

The deceased was the wife of the appellant; they lived together in Namasujju village, Nakaseke District, with their son, Bbosa Mbusera, who testified as PW5 and was about 13 years old. On 8 November 2006, the deceased was killed in a garden where she was digging, her body found with deep cut wounds after an extensive search. PW5, deployed by the appellant to guard the family rice garden from birds, testified that he saw the appellant and the herdsman, Byakatonda, slaughter his mother, the herdsman cutting her neck while the appellant held her legs, about 50 metres from him in broad daylight at around 2.00 pm. He saw them carry the body to a nearby bush, where it was later recovered. PW5 reported what he saw to his teacher two days later, who alerted the local authorities and police. The herdsman disappeared and was never traced. The appellant was arrested, tried and convicted of murder by the High Court at Luweero and sentenced to death.

Issues

  1. Whether the application to adduce additional evidence by recalling a prosecution witness satisfied the exceptional circumstances justifying admission on appeal.
  2. Whether the appellant participated in the murder of the deceased on the available evidence.
  3. Whether the trial judge erred in relying on the uncorroborated evidence of a child witness (PW5) to convict.
  4. Whether the trial judge properly handled and rejected the appellant's defence of alibi.
  5. Whether a death sentence imposed on a first offender warranted appellate interference.

Orders

  • Application for adducing additional evidence dismissed.
  • Appeal dismissed.
  • Conviction upheld.
  • Sentence upheld.

Key headnotes

Criminal Procedure — Additional Evidence on Appeal — Exceptional Circumstances
An appellate court may admit additional evidence only in exceptional circumstances, including the discovery of new and important evidence not previously available; a prosecution witness who testified and was cross-examined at trial is not new evidence, and recalling such a witness merely to alter his earlier testimony would not be credible or capable of belief.
Criminal Procedure — Child Witness — Sworn Testimony and Corroboration
Where a child of tender years gives evidence on oath following a voire dire, the court may convict on that evidence even without corroboration if it believes the witness; nevertheless, supportive evidence such as medical findings, the condition of the scene and the accused's own conduct may corroborate the child's direct testimony.
Criminal Procedure — Identification — Conditions Favouring Correct Identification
Identification evidence is reliable where the offence occurs in broad daylight, the witness is near the scene, and the witness knows the assailants well, such that no question of mistaken identity arises.
Defences — Alibi — Burden of Proof
An accused who raises an alibi assumes no burden of proving it; the burden remains on the prosecution to place the accused at the scene of crime, but an alibi belatedly disclosed and contradicted by credible identification evidence may properly be rejected as false.
Sentencing — Appellate Interference with Sentence — Principles
An appellate court will not interfere with a sentence imposed in the exercise of a trial court's discretion unless it is manifestly excessive, results in a miscarriage of justice, ignores a material consideration, or is wrong in principle, and not merely because the appellate court would have imposed a different sentence.

Legislation cited (1)

  • Trial on Indictments Act s.40(3)

Cases cited (16)

  • Hon. Anifa Bangirana Kawooya v National Council for Higher Education (Miscellaneous Application No. 8 of 2013)
  • Attorney General v Paulo Ssemogerere & Ors (Constitutional Application No. 2 of 2004)
  • Ladd v Marshall [1954] 3 All ER 745
  • Skone v Skone [1971] 2 All ER 582
  • Langdale v Danby [1982] 3 All ER 129
  • Sadrudin Shariff v Tarlochan Singh [1961] EA 72
  • Elgood v Regina [1968] EA 274
  • American Express International vs Aulkimar S. Patel, Application No.8B, of 1986 (SCU)(unreported)
  • Karmali v Lakhani [1958] EA 567
  • Corbett [1953] 2 All ER 69
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mushikoma Watete & 3 Others v Uganda (Criminal Appeal No. 10 of 2000)
  • Woolmington v Director of Public Prosecutions [1935] AC 462
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Ogalo s/o Owoura v R [1954] 24 EACA 270
  • Susan Kigula & Others v Uganda (Constitutional Appeal No. 3 of 2006)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.