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Twesigye v Uganda (Criminal Appeal No. 176 of 2013)

Court of Appeal · [2022] UGCA 100 · 2022 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
Convictions upheld; original sentences set aside as illegal and appellant re-sentenced to 26 years 11 months (murder) and 14 years 11 months (aggravated robbery), to run concurrently after deducting time on remand.

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Holding

The Court of Appeal upheld the appellant's convictions for murder and aggravated robbery, holding that a single identifying witness properly identified him given ample time, torchlight, close proximity and a subsequent identification parade, and that theft was proved through the complainant's uncontroverted testimony even though no stolen items were exhibited. However, the Court allowed the appeal on sentence, finding the trial judge had failed to deduct the period spent on remand contrary to article 23(8) of the Constitution, rendering the sentences illegal. Exercising its jurisdiction under section 11 of the Judicature Act, it re-sentenced the appellant, deducting time on remand.

Facts

On 12 November 2009 at Katojo Trading Centre, Kanungu District, armed attackers broke into the home and bar/shop of the deceased Bimbona Alex. They hit him with a stone, shot him dead, and wounded his nephew who escaped. The complainant, PW1 Ruth Kyarikunda (the deceased's widow), was taken from the bedroom to the shop and ordered to hand over money, which she did, giving the assailants UGX 600,000. The attackers also took shop items including beer, waragi, coffee, clothes and mobile phones. PW1 testified that there were four attackers, three inside, and that despite there being no electric light, the assailants carried torches which they flashed about the small room over a period of about 30 minutes, enabling her to observe two of them as they beat her. She did not previously know the appellant but identified him at an identification parade conducted by PW6. The appellant and a co-accused were tried; the co-accused was acquitted while the appellant was convicted on both counts.

Issues

  1. Whether the appellant was properly identified as a participant in the murder by a single identifying witness.
  2. Whether the ingredient of theft was proved to sustain a conviction for aggravated robbery despite no stolen items being tendered in evidence.
  3. Whether the trial judge imposed an illegal sentence by failing to consider the period spent on remand contrary to article 23(8) of the Constitution.
  4. Whether the sentence of 60 years' imprisonment was harsh.

Orders

  • Ground 1 (identification/participation) disallowed.
  • Ground 2 (proof of theft) disallowed.
  • Convictions for murder and aggravated robbery upheld.
  • Ground 3 (failure to consider remand) allowed and original sentences set aside.
  • Appellant re-sentenced to 26 years and 11 months for murder and 14 years and 11 months for aggravated robbery, to run concurrently from the date of conviction (6 December 2013).

Key headnotes

Identification Evidence — Single Identifying Witness — Conditions Favouring Correct Identification
Identification by a single witness can sustain a conviction where the court, after warning itself of the special need for caution, is satisfied that the conditions favouring correct identification—including light, proximity, duration of observation and opportunity—rule out the possibility of mistaken identity.
Identification Evidence — Use of Identification Parade as Corroboration
Identification of an accused at a properly conducted identification parade, corroborated by the eyewitness's testimony, supports a finding that the accused was placed at the scene of the crime.
Aggravated Robbery — Proof of Theft Without Recovered Exhibits
The ingredient of theft in aggravated robbery may be proved by the uncontroverted testimony of the complainant detailing the property taken; failure to recover or tender the stolen property as exhibits is not fatal to the prosecution case.
Sentencing — Article 23(8) — Failure to Account for Time on Remand
A sentence arrived at without taking into account the period the convict spent on remand prior to conviction is illegal for non-compliance with article 23(8) of the Constitution, and an appellate court may set it aside and impose a fresh sentence.
Sentencing — Re-sentencing on Appeal — Consistency with Precedent
When re-sentencing under section 11 of the Judicature Act, the appellate court should consider the range of sentences in comparable precedents together with aggravating and mitigating factors, and deduct the period spent in pre-trial custody.

Legislation cited (7)

  • Penal Code Act, Cap. 120 s.188
  • Penal Code Act, Cap. 120 s.189
  • Penal Code Act, Cap. 120 s.285
  • Penal Code Act, Cap. 120 s.286(2)
  • Constitution of the Republic of Uganda art.23(8)
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) Directions, S.I No. 13-10 r.30(1)(a)

Cases cited (18)

  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Uganda v George Wilson Simbwa (Criminal Appeal No. 37 of 1995)
  • Abdala Bin Wendo and Another v R (1953) 20 EACA 156
  • Roria v R (1967) E.A. 583
  • Abdula Nabulere and 2 Others v Uganda (Criminal Appeal No. 12 of 1981)
  • Pandya v R [1957] EA 336
  • Selle and Another v Associated Motor Boat Company [1968] EA 123
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Atiku v Uganda (Criminal Appeal No. 41 of 2009)
  • Nabongo Ibrahim v Uganda (Criminal Appeal No. 181 of 2014)
  • Bogere Asiimwe Moses and Senyonga Sunday v Uganda (Criminal Appeal No. 39 of 2016)
  • Tukamuhebwa David Junior and Mulodo Yubu v Uganda (Criminal Appeal No. 59 of 2016)
  • Muchunguzi Benon and Muchunguzi Thomas J v Uganda (Criminal Appeal No. 8 of 2008)
  • Naturinda Tamson v Uganda (Criminal Appeal No. 25 of 2015)
  • Kasaija v Uganda (Criminal Appeal No. 128 of 2008)
  • Atiku Lino v Uganda (Criminal Appeal No. 41 of 2009)
  • Tumwesigye Anthony v Uganda (Criminal Appeal No. 46 of 2012)
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.