Wakilii

Ssemakula and 9 Others v Uganda (Criminal Appeal No. 228 of 2017)

Court of Appeal · [2021] UGCA 67 · 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
Murder convictions of all appellants set aside; two appellants acquitted of all aggravated robbery counts and released; remaining appellants' aggravated robbery convictions partly upheld with reduced individualised sentences; Muwonge Julius released as a juvenile having served beyond the statutory maximum.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

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 partly allowed the appeal. It set aside all murder convictions for want of evidence of participation, and quashed aggravated robbery convictions on counts where victims did not testify, against two appellants entirely lacking evidence. It held that statements not recorded as charge and caution statements could not be relied on as confessions. It held that section 88(3) of the Children Act requires a court to assess an offender's age based on available information, not a trial within a trial. Finding the 35-year omnibus sentences excessive and the trial judge to have ignored individual circumstances, the court substituted reduced, individualised sentences ranging from 5 to 15 years.

Facts

On 21 August 2014, a group armed with sticks, pangas, iron bars and hammers broke into several homes at Bwebajja Village, Wakiso District, stealing money, phones and electronics, and assaulting occupants, some of whom suffered grievous injuries. Sekitto Lawrence died, allegedly by strangulation, during the attacks. Police tracked a stolen telephone, leading through an intermediary to the arrest of the appellants. They were indicted on one count of murder and 16 counts of aggravated robbery. The trial court convicted all ten tried appellants and imposed concurrent 35-year sentences for each offence. On appeal, identification evidence varied between victims, several alleged victims did not testify, and the indictment omitted offences against some testifying victims. Police did not produce the contested charge and caution statements at trial. One appellant, Muwonge Julius, was assessed by a medical officer at the apparent age of 17 at the time of arrest.

Issues

  1. Whether the trial judge properly evaluated the evidence, including charge and caution statements, in convicting the appellants for murder and aggravated robbery.
  2. Whether a trial within a trial is required to determine the age of an accused person who appears to be under 18 years before sentencing.
  3. Whether the sentences of 35 years' imprisonment imposed on all appellants were harsh and manifestly excessive.

Orders

  • The convictions and sentences against all appellants for murder are set aside.
  • The convictions and sentences for aggravated robbery on all 16 counts against Zainabu Nasanga and Kasule John Vianney Jombwe are set aside; they shall be released from prison forthwith unless held on other lawful charges.
  • The joint convictions of the remaining appellants on the 16 counts and the 35-year sentences are set aside and substituted with individualised convictions and sentences.
  • Ssemakula Mohammed: aggravated robbery under Counts 16 and 17 — 15 years for both counts.
  • Suuna Joseph: aggravated robbery under Count 14 — 8 years.
  • Jurua Faith: aggravated robbery under Counts 14 and 15 — 8 and 12 years; Counts 16 and 17 — 10 years; robbery under Count 6 — 5 years.
  • Mugerwa Farouk: robbery under Count 6 — 5 years; aggravated robbery under Count 14 — 8 years.
  • Namutebi Irene: aggravated robbery under Counts 4, 14 and 15 — 10, 8 and 12 years; Counts 16 and 17 — 10 years.
  • Lubega Donozio: aggravated robbery under Counts 16 and 17 — 10 years; robbery under Count 6 — 5 years.
  • Ali Kasule Kirumira: aggravated robbery under Count 4 — 10 years; Counts 16 and 17 — 15 years; robbery under Count 6 — 5 years.
  • Muwonge Julius: no sentences imposed as he had served longer than the 3 years permitted for a person under 18; he shall be set free forthwith unless held on other lawful charges.
  • All sentences to commence on the date of conviction and to run concurrently.

Key headnotes

Criminal Evidence — Confessions — Statements not recorded as charge and caution statements cannot be admitted as confessions
A statement made by an accused while in police custody cannot be relied upon as a confession unless recorded in compliance with section 23 of the Evidence Act; statements admitted merely as plain statements under section 2(1)(d) cannot be used as confessions to convict.
Criminal Evidence — Hearsay — Out-of-court statements reported by accused about a third party's participation
Where an accused reports to police what a third party told him about an offence, and the accused denies being a participant, such reported information is hearsay under section 59(a) of the Evidence Act and cannot be used as evidence.
Aggravated Robbery — Proof of ingredients — Failure to call victims
Where the prosecution fails to call the victims of alleged aggravated robbery or any witness to prove the offence on a count, the ingredients are not proved beyond reasonable doubt and convictions on those counts must be set aside.
Identification Evidence — Conditions of difficult identification — Need for caution
Where identification is made in difficult conditions such as at night, the court must warn itself of the special need for caution and examine the quality of identification, including duration of observation, lighting and prior familiarity, before convicting in reliance upon it.
Determination of Age of Offender — Section 88(3) Children Act — No trial within a trial required
A court determining whether an offender is below 18 years is required under section 88(3) of the Children Act to assess age on a full assessment of available information including official documentation and medical evidence; a trial within a trial, which concerns the voluntariness of confessions, is neither required nor appropriate for ascertaining age.
Juvenile Offenders — Section 94(1)(g) Children Act — Maximum three years detention
A child offender, being a person under 18 years at the time of commission of the offence, may be detained for a maximum of three years; a longer term imposed is unlawful and the offender must be released once that period is served.
Sentencing — Multiple offenders — Duty to consider individual circumstances and consistency
When sentencing co-accused or multiple offenders, the court must consider the specific circumstances of each offender under paragraph 7 of the Sentencing Guidelines and have regard to consistency with appropriate sentencing levels for similar offences; an undifferentiated omnibus sentence is erroneous.

Legislation cited (26)

  • Evidence Act s.2(1)(d)
  • Evidence Act s.23(1)
  • Evidence Act s.59(a)
  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.285
  • Penal Code Act s.286
  • Penal Code Act s.19
  • Penal Code Act s.20
  • Trial on Indictments Act s.22
  • Trial on Indictments Act s.50
  • Trial on Indictments Act s.66(1)
  • Children Act s.2
  • Children Act s.88
  • Children Act s.94(1)(g)
  • Children Act s.107
  • Children Act s.108(2)
  • Children (Amendment) Act 2016 s.18
  • Constitution of Uganda Article 28(3)(b)
  • Judicature Act s.11
  • Court of Appeal Rules (SI 13-10) rule 30(1)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 paragraph 6(c)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 paragraph 7
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 paragraph 55
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 paragraph 60
  • Evidence Act of Nigeria (2011) s.29(2)

Cases cited (18)

  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Mumbere Julius v Uganda (Criminal Appeal No. 15 of 2014)
  • Amos Binuge v Uganda (Criminal Appeal No. 23 of 1989)
  • Beigana Kanoni Willy v Uganda (Criminal Appeal No. 26 of 2009)
  • Kawoya Joseph v Uganda (Criminal Appeal No. 50 of 1999)
  • Omaria Chandia v Uganda (Criminal Appeal No. 23 of 2001)
  • Abdala Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • DPP v Smith [1961] AC 290
  • Lim Seng Chuan v Public Prosecutor [1977] MLJ 171
  • Anupchand Meghji Rupa Shah and Vijay Kumar Meghji v Republic [1984] eKLR
  • Njuguna s/o Kimani and 3 Others v R (1954) 21 EACA 316
  • Korobe Joseph v Uganda (Criminal Appeal No. 243 of 2013)
  • Twinomujuni Baala v Uganda (Criminal Appeal No. 24 of 2011)
  • Abaasa and Another v Uganda (Criminal Appeal No. 33 of 2010)
  • Ogalo son of Owoura v Republic (1954) 21 EACA 270
  • James v R (1950) 18 EACA 147
  • R v Shershewsky (1912) 28 TLR 364
  • Bikangaga Daniel v Uganda (Criminal Appeal No. 38 of 2000)
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.