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Sizomu and Another v Uganda (Criminal Appeal No. 61 of 2012)

Court of Appeal · [2021] UGCA 25 · 2021 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder and aggravated robbery
Decision
Second appellant acquitted and discharged; first appellant's convictions and consecutive 25-year and 15-year sentences upheld

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Holding

The Court of Appeal, re-evaluating the evidence as a first appellate court, held that the circumstantial evidence proved beyond reasonable doubt that the first appellant participated in robbing and killing the deceased, where he was last seen with the deceased and was found in possession of the deceased's motorcycle. The conviction and consecutive sentences of 25 years (murder) and 15 years (aggravated robbery) against the first appellant were upheld as lawful, with Article 23(8) complied with. However, no evidence identified the second appellant, so his conviction was quashed and he was acquitted on both counts.

Facts

On 18 August 2009, the deceased, a boda boda rider at Kasiro Road Stage, Kasana, was hired by two men to take them to Nabutaka village, Luwero District. PW2 recognised the first appellant as one of the two men under electric light. The deceased never returned. After a search, his body was found buried in mud in a swamp at Nabutaka, tied with a sisal rope, with a deep chest wound and a fractured clavicle caused by a blunt instrument. The first appellant, a village mate of the deceased, did not participate in the search or burial and disappeared. After the deceased went missing, the first appellant was found in possession of the deceased's red Bajaj Boxer motorcycle (Reg. No. UDR 493V), claiming it as his, attempted to obtain a new number plate, offered to sell it, and sought a boda boda stage in Kyebando. No evidence identified the second man who accompanied the first appellant; none of the witnesses identified the second appellant.

Issues

  1. Whether the trial Judge erred in convicting the appellants on circumstantial evidence that was alleged to be too weak to support a conviction.
  2. Whether the sentences imposed were illegal or manifestly harsh and excessive, and whether the period spent on remand and mitigating factors were properly considered under Article 23(8) of the Constitution.

Orders

  • Appeal partly allowed as against the second appellant, Kiseka Fred.
  • Second appellant acquitted on both counts of Murder and Aggravated Robbery and ordered released forthwith unless held on other lawful charges.
  • Convictions and sentences against the first appellant, Sizomu Muhammed, upheld.
  • Sentences against the first appellant to run from the date of conviction, 6 December 2011.

Key headnotes

Circumstantial Evidence — Standard for Conviction — Inculpatory Facts Incompatible with Innocence
A conviction may be based on circumstantial evidence only where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt, with no co-existing circumstances weakening the inference of guilt; such evidence must be treated with caution and critically examined.
Recent Possession — Unexplained Possession of Stolen Property — Inference of Participation in Robbery and Killing
Where an accused is found in unexplained possession of the property of a deceased shortly after the deceased's death, was last seen with the deceased while alive, and offers no explanation for the possession, the court may infer that the accused participated in the robbery and the killing committed in the course of the robbery.
Hearsay — Statements of Non-Testifying Persons — Inadmissibility for Identification
A statement made by a person who does not testify in court is inadmissible hearsay and cannot be used to establish a fact such as the identity of a co-accused; the trial court errs in relying on such evidence to find a co-accused's participation.
Malice Aforethought — Constructive Malice — Killing in Course of Aggravated Robbery
Constructive malice aforethought is established where a deceased is violently tortured to death by injuring vulnerable parts of the body in the course of a robbery.
Sentencing — Article 23(8) — Consideration of Remand Period and Effect of Rwabugande Precedent
A sentence passed before the Supreme Court's decision in Rwabugande Moses v Uganda is not rendered illegal merely because the period on remand was not arithmetically deducted, provided the trial court actually considered the remand period in compliance with Article 23(8); courts apply the law as it stood at the time of sentencing under the principle of precedent.

Legislation cited (6)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Constitution of the Republic of Uganda 1995 Article 23(8)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 30(1)

Cases cited (14)

  • Peters v Sunday Post [1958] EA 424
  • Byaruhanga Alex v Uganda (Criminal Appeal No. 88 of 2018)
  • Kooky Sharma v Uganda (Criminal Appeal No. 44 of 2000)
  • Tindigwire Mbone v Uganda (Criminal Appeal No. 9 of 1987)
  • Simon Musoke vs R [1958] EA 715
  • Teper V.R. [1952] 2 ALLER 447 [1952] A.C. 480
  • Tukamuhebwa David and Another v Uganda (Civil Appeal No. 59 of 2016)
  • Nalongo Naziwa Josephine v Uganda (Criminal Appeal No. 88 of 2009)
  • Bukenya v Uganda (Criminal Appeal No. 17 of 2010)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kizito Senkulu v Uganda (Criminal Appeal No. 2 of 2001)
  • Kabuye Senvawo v Uganda (Criminal Appeal No. 2 of 2002)
  • Katend Ahamed v Uganda (Criminal Appeal No. 6 of 2004)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
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.