Wakilii

Wampa Faziri and Others v Uganda (Criminal Appeal No. 163 of 2013)

Court of Appeal · [2019] UGCA 2126 · 2019 Conviction Upheld; Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Convictions upheld; life imprisonment sentences set aside and substituted with 30 years imprisonment for each appellant.

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Holding

The Court of Appeal upheld the murder convictions of all five appellants, finding the 1st and 2nd appellants properly identified by eyewitnesses corroborated by the deceased's dying declaration, and the 3rd, 4th and 5th appellants' single-witness visual identification corroborated by independent evidence of their disappearance from the village. Malice aforethought was established by the nature of the deep cut wounds. However, the Court found the trial Judge erred by considering only one mitigating factor when sentencing. It set aside the life imprisonment sentences and substituted 30 years imprisonment for each appellant, running from the date of conviction.

Facts

On the morning of 5 July 2011, around 4 am, Mukisa Paul alias Kagame was enticed out of his house to check on noisy chickens. The assailants bolted his wife inside the house, then attacked and hacked him, leaving him for dead. As he was attacked he shouted the names of his assailants; his wife (PW1) also raised an alarm and named some attackers. Investigations based on these names led to the arrest of five accused persons. PW1 saw the 2nd appellant tell others to hurry and recognised the 1st appellant's voice. PW2, responding to the alarm, saw all five appellants running from the scene by moonlight from about 5 metres away. The deceased made a dying declaration naming the 1st and 2nd appellants among his attackers. Post-mortem evidence showed eight deep cut wounds. Several accused disappeared from the village for a year after the killing. Each accused denied the charges and raised an alibi. They were convicted of murder and sentenced to life imprisonment.

Issues

  1. Whether the appellants were properly identified and placed at the scene of crime.
  2. Whether the defences of alibi raised by the appellants were rebutted by the prosecution.
  3. Whether the murder was committed with malice aforethought.
  4. Whether the sentence of life imprisonment imposed by the trial Judge was excessive.

Orders

  • Appeal against conviction dismissed.
  • Convictions of all appellants upheld.
  • Sentence of life imprisonment against each appellant set aside as harsh and excessive.
  • Sentence of 30 years imprisonment substituted against each appellant, to run from the date of conviction (12 November 2013).

Key headnotes

Criminal Evidence — Visual Identification — Need for Caution and Corroboration in Difficult Conditions
Where a conviction depends wholly or substantially on disputed visual identification, the judge must warn himself and the assessors of the special need for caution and examine the conditions of identification; where conditions are difficult, the court must look for other evidence pointing to the guilt of the accused before convicting.
Criminal Evidence — Single Identifying Witness — Corroboration by Conduct of the Accused
Evidence that the accused disappeared from their homes and moved only at night following the killing can constitute the independent 'other evidence' required to corroborate single-witness visual identification made under difficult conditions.
Criminal Evidence — Dying Declarations — Corroborative Value
A dying declaration naming the assailants, made when the deceased has no motive to lie, may corroborate eyewitness identification of those accused.
Murder — Malice Aforethought — Inference from Weapon and Injuries
Malice aforethought may be inferred from the nature of the weapon used, the gravity and location of the injuries inflicted, and the conduct of the accused before and after the offence; multiple deep cut wounds to vital body parts establish malice aforethought.
Defence of Alibi — Burden on Prosecution to Disprove
An accused who raises an alibi bears no burden to prove it; the prosecution must disprove the alibi, and the court must evaluate both the prosecution and defence versions and give reasons for accepting one over the other.
Sentencing — Duty to Consider All Mitigating Factors — Appellate Interference
A sentencing court must consider all mitigating factors brought before it; failure to consider all such factors renders the sentence liable to appellate interference, and a sentence of life imprisonment is not subject to the deduction of remand time under Article 23(8) of the Constitution.

Legislation cited (7)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.191
  • Evidence Act s.154
  • Constitution Article 23(8)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30(1)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013

Cases cited (16)

  • Opolot Justine and Agamet Richard v Uganda (Criminal Appeal No. 31 of 2014)
  • Abdalla Bin Wendo and Another v R [1953] 20 EACA 166
  • R v Tubere s/o Ochen [1945] 12 EACA 63
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • James Abiri and Another v Uganda (Criminal Appeal No. 5 of 1990)
  • Akber Hussein Godi v Uganda (Criminal Appeal No. 62 of 2011)
  • Kisto Enock v Uganda (Criminal Appeal No. 224 of 2003)
  • Abudalla Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 14 of 2001)
  • Sebuliba Suraji v Uganda (Criminal Appeal No. 0319 of 2009)
  • Bogere and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Okeno v Republic [1972] EA 32
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Ogalo s/o Owoura v R [1954] 24 EACA 270
  • Magezi Gad v Uganda (Criminal Appeal No. 17 of 2014)
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.