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Ndarugayo and 4 Others v Uganda (Criminal Appeal 96 of 2016)

Court of Appeal · [2022] UGCA 305 · 2022 Conviction Upheld; Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from High Court conviction and sentence for murder
Decision
Conviction for murder upheld; sentence reduced from 45 years to 30 years' imprisonment (35 years less 5 years on remand) with effect from 9 May 2016.

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Holding

On first appeal against conviction for murder, the Court of Appeal upheld the convictions, finding that failure to hold a proper identification parade and to conduct a trial within a trial did not occasion a miscarriage of justice given other connecting circumstantial evidence, and that the doctrine of common intention was correctly applied. The court found the 45-year sentence manifestly excessive and inconsistent with comparable murder sentences, and held the trial judge failed to comply with Article 23(8) of the Constitution by not deducting remand time. The sentence was set aside and a fresh sentence of 35 years imposed, less 5 years on remand, giving 30 years' imprisonment.

Facts

The deceased, Twinomugisha Geoffrey, was waylaid and killed on 28 March 2011 near his home in Mbarara district, his body found beside his motorcycle. Appellant No. 1, Ndarugayo Januario, a neighbour with a land grudge against the deceased, confessed to hiring Appellant No. 4, Sunday Steven, whom he met as a fellow inmate at Mbarara Central Police Station, to eliminate the deceased for UGX 500,000. The money was handed over at the Chief Magistrates Court, Mbarara. Appellant No. 4 travelled to Appellant No. 1's home, transported with Appellant No. 5 on a boda boda. On the way, they bought a torch, a machete and a knife. A prosecution witness testified to hearing the appellants planning the murder at a third party's home, and a shopkeeper recognised the implements purchased from his shop. The five appellants were tried, convicted of murder and sentenced to 45 years' imprisonment, prompting this appeal.

Issues

  1. Whether the trial judge erred in relying on identification parade evidence where there was no proof it was properly conducted.
  2. Whether the trial judge erred in admitting an extra-judicial confession without conducting a trial within a trial.
  3. Whether the trial judge erred in relying on exhibits that were not produced in court.
  4. Whether the appellants' participation in the murder was proved beyond reasonable doubt on circumstantial evidence.
  5. Whether the doctrine of common intention was properly applied to convict the appellants.
  6. Whether the sentence of 45 years' imprisonment was manifestly harsh and excessive and whether the trial judge failed to deduct time spent on remand.

Orders

  • Grounds 1, 3, 4, 5, 6, 7 and 8 of the appeal dismissed.
  • Ground 2 (failure to conduct a trial within a trial) succeeds.
  • Grounds 9 and 10 struck out/dismissed.
  • Ground 11 (excessive sentence) succeeds.
  • Conviction for murder upheld.
  • Sentence of 45 years' imprisonment set aside.
  • Fresh sentence of 35 years imposed, less 5 years spent on remand, resulting in 30 years' imprisonment with effect from 9 May 2016.

Key headnotes

Evidence — Identification Parades — Where Suspect Known to Witness
Failure to hold or properly conduct an identification parade is not fatal to a conviction where the perpetrators are already known to the witnesses or where other evidence sufficiently connects the accused with the crime.
Confessions — Trial Within a Trial — Voluntariness
Where an accused disputes or retracts a charge and caution statement at trial, the trial judge must conduct a trial within a trial to determine its truthfulness and voluntariness; failure to do so is a fatal irregularity occasioning a miscarriage of justice.
Exhibits — Non-Production — Description by Witnesses
Where exhibits used in the commission of an offence cannot be produced in court, the prosecution may rely on witness descriptions of the items and injuries, and non-production is not necessarily fatal to the prosecution case.
Common Intention — Inference from Conduct and Association
Under section 20 of the Penal Code Act, common intention need not arise from a pre-arranged plan; it may be inferred from the presence of the accused at the scene, their actions, and failure to disassociate from the unlawful purpose, and secondary participants such as one who knowingly transports perpetrators and implements may be liable.
Sentencing — Parity and Consistency — Murder
Sentences for murder should be consistent with comparable cases, with the appellate authorities indicating that sentences of 20-30 years are generally appropriate absent exceptional circumstances; an appellate court may set aside a sentence that is manifestly excessive and inconsistent with this range.
Sentencing — Deduction of Remand Period — Article 23(8)
A sentencing court must consciously take into account and deduct the period spent on remand in compliance with Article 23(8) of the Constitution; failure to do so renders the sentence illegal and warrants its being set aside.

Legislation cited (12)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.20
  • Judicature Act Cap 13 s.11
  • Trial on Indictments Act Cap 23 s.132(1)
  • Trial on Indictments Act s.82(1)
  • Criminal Procedure Code Act Cap 116 s.34(2)
  • Criminal Procedure Code Act s.34(1)
  • Constitution of Uganda Article 23(8)
  • Judicature (Court of Appeal) Rules Rule 30(1)(a)
  • Judicature (Court of Appeal) Rules Rule 32(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 66(2)

Cases cited (31)

  • Omaria Chandia v Uganda (Criminal Appeal No. 23 of 2001)
  • Turyahika Joseph v Uganda (Criminal Appeal No. 327 of 2014)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Eldam Enterprises Ltd v SGS (U) Ltd (Civil Appeal No. 5 of 2005)
  • Sentale v Uganda (1980) EA 365
  • Haji Makubo Nakulopa v Uganda (Criminal Appeal No. 25 of 2001)
  • Simbwa Paul v Uganda (Criminal Appeal No. 23 of 2012)
  • Mawanda Patrick v Uganda (Criminal Appeal No. 210 of 2010)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Henry Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • R v Mwango s/o Manaa (1936) 3 EACA 29
  • Ssentale v Uganda [1968] EA 365
  • Stephen Mugume v Uganda (Criminal Appeal No. 20 of 1995)
  • Mulindwa Samuel v Uganda (Criminal Appeal No. 41 of 2000)
  • Amos Binuge and Others v Uganda (Criminal Appeal No. 23 of 1989)
  • Tuwamoi v Uganda [1967] EA 84, 91
  • Mutesasira Musoke v Uganda (Criminal Appeal No. 17 of 2009)
  • Mumbere Julius v Uganda (Criminal Appeal No. 15 of 2014)
  • Byaruhanga Fodori v Uganda (Criminal Appeal No. 18 of 2002)
  • Abdulla Bin Wendo v R [1953] EACA 166
  • Abdalla Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Sabwe Abdu v Uganda (Criminal Appeal No. 19 of 2007)
  • Kisegerwa and Another v Uganda (Criminal Appeal No. 6 of 1978)
  • R v Okule & Others [1941] 8305 EACA 80
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Aharikundira v Uganda (Criminal Appeal No. 27 of 2015)
  • Anywar Patrick and Another v Uganda (Criminal Appeal No. 166 of 2009)
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Tumwesigye Anthony v Uganda (Criminal Appeal No. 46 of 2012)
  • Tumwesigye Rauben v Uganda (Criminal Appeal No. 181 of 2013)
  • Paul Kibolo Nashimolo v Uganda (Criminal Appeal No. 46 of 2017)
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.