Wakilii

Turyasingura and Another v Uganda (Criminal Appeal No. 147 of 2013)

Court of Appeal · [2022] UGCA 69 · 2022 Appeals Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Two consolidated first appeals from the High Court: Appellant No. 1 against sentence only and Appellant No. 2 against conviction and sentence, for murder and aggravated robbery
Decision
Appellant No. 2's conviction quashed and he is ordered released; Appellant No. 1's sentence reduced from 50 years to 13 years and 3 months on each count, concurrent

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a first appeal in a murder and aggravated robbery case, the Court of Appeal held that the conviction of the second appellant rested solely on uncorroborated accomplice evidence whose credibility was undermined by a material inconsistency pointing to possible deliberate falsehood, and the prosecution had not disproved his alibi; the conviction was therefore unsafe, quashed, and the appellant ordered released. For the first appellant, the trial court's failure to account for the remand period rendered the 50-year sentences illegal; invoking section 11 of the Judicature Act and the need for parity in sentencing, the court substituted concurrent terms of 13 years and 3 months. Both appeals succeeded.

Facts

Appellant No. 1 and Appellant No. 2 met while in Rukungiri prison and became friends. After release, Appellant No. 1 went to live with Appellant No. 2, who hired him and one Ben to kill the deceased. On 26 November 2011, Appellant No. 2 led the group to a spot where they ambushed the deceased as he walked talking on his phone, beat him on the head with an iron bar, a brick and a stone, killed him, and dumped his body in a trench. Appellant No. 1 took the deceased's mobile phone and UGX 5,000; police tracked the phone, leading to his arrest. He confessed, named Appellant No. 2 as an accomplice, pleaded guilty, and testified for the prosecution as PW5. Appellant No. 2 denied involvement and raised an alibi that he was in Kampala on business. The only evidence directly implicating Appellant No. 2 was that of PW5, the accomplice.

Issues

  1. Whether the conviction of Appellant No. 2 for murder and aggravated robbery could be sustained on the uncorroborated evidence of an accomplice (PW5) whose credibility was challenged.
  2. Whether the prosecution discharged its duty to disprove Appellant No. 2's alibi.
  3. Whether the sentence of 50 years' imprisonment imposed on Appellant No. 1 was illegal for failing to take into account the period spent on remand.
  4. Whether the same advocate could properly represent two co-accused with conflicting interests consistent with the right to a fair hearing.

Orders

  • The conviction of Appellant No. 2 on the two counts of murder and aggravated robbery is quashed and the sentence set aside.
  • Unless held on some other lawful ground, Appellant No. 2 is to be released immediately.
  • The sentence of 50 years' imprisonment imposed on Appellant No. 1 on each count is set aside.
  • Appellant No. 1 is sentenced to 13 years and 3 months' imprisonment on each count, to be served concurrently, from 22 October 2013 (the date of conviction).
  • The appeal of Appellant No. 1 succeeds.

Key headnotes

Accomplice evidence — Corroboration — Rule of practice and caution
Although under section 132 of the Evidence Act a conviction is not illegal merely because it rests on the uncorroborated testimony of an accomplice, as a matter of practice accomplice evidence ought to be corroborated, and a court wishing to convict on uncorroborated accomplice evidence must warn itself of the danger of doing so; that rule of caution only applies once the accomplice's evidence has been found to be trustworthy.
Accomplice evidence — Nature of corroboration required
Corroboration of accomplice evidence must be independent testimony that connects or tends to connect the accused with the crime, confirming in some material particular not only that the offence was committed but that the accused committed it; where the accomplice has pleaded guilty, what requires corroboration is the participation of the co-accused.
Credibility of witnesses — Inconsistencies pointing to deliberate falsehood
It is not every inconsistency that results in a witness's testimony being rejected; only a grave inconsistency, unless satisfactorily explained, will usually do so, and a minor inconsistency may also have that effect where the court considers it points to deliberate untruthfulness; an inconsistency going to the root of the witness's account, such as who paid the accomplice, cannot be treated as minor.
Defence of alibi — Burden on prosecution to disprove
Where an accused raises an alibi, the duty of demolishing it lies on the prosecution; a failure to adduce any evidence displacing the alibi, such as phone records or evidence from neighbours, leaves the accused's account standing and renders a conviction based on uncorroborated accomplice evidence unsafe.
Sentencing — Remand period — Illegality for failure to account
It is a mandatory constitutional requirement under Article 23(8) to take into account the period spent on remand when sentencing; the remand period must be considered specifically after the appropriate sentence has been determined and that consideration noted in the judgment, and a failure to do so renders the sentence illegal.
Right to a fair hearing — Joint representation of co-accused with conflicting interests
The right to a fair hearing under Articles 28 and 44 is non-derogable; where one co-accused gives evidence against another, they cannot be represented by the same advocate, as such joint representation creates a conflict of interest that inevitably infringes the right to a fair trial of one or both accused.

Legislation cited (12)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Evidence Act s.132
  • Judicature Act s.11
  • Constitution of Uganda art.23(8)
  • Constitution of Uganda art.28
  • Constitution of Uganda art.44
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.30(1)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 para.32(g)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 para.32(h)

Cases cited (34)

  • Uganda v George Wilson Simbwa (Criminal Appeal No. 37 of 1995)
  • Ntambala v Uganda [2018] UGSC 1
  • R v Baskerville [1916] 2 KB 658
  • Ezra Kyabanamaizi v R (1962) EA 309
  • Senoga Sentumbwe v Uganda [2013] UGCA 31
  • R v Baskerville [1916] 2 KB 658
  • Chesakit Matayo v Uganda [2009] UGCA 21
  • Androa Asenua and Another v Uganda [1998] UGSC 23
  • Kato Kajubi v Uganda [2021] UGSC 57
  • Saowabiri and Another v Uganda (Criminal Appeal No. 005 of 1990)
  • Mboinegaba v Uganda [2016] UGSC 80
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Karisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Busiku v Uganda [2015] UGSC 3
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Ssekawoya Blasio v Uganda [2018] UGSC 6
  • Turyahabwe and 12 others v Uganda [2018] UGSC 17
  • Kasode and Another v Uganda [2020] UGCA 105
  • Aharikundira v Uganda [2018] UGSC 49
  • Prince v United States 357 US 322 (1957)
  • Kifamunte Henry v Uganda [1998] UGSC 20
  • Ayor and Anor v Uganda [1968] 303
  • Baluku Samuel and Another v Uganda [2018] UGSC 26
  • Rex v Taibali Mohamedai 10 EACA 60
  • Susan Kigula v Uganda (Constitutional Appeal No. 1 of 2004)
  • Canisio sio Walwa v The Republic (1956) 23 EACA 453
  • Sarapio Tinkamalirwe v Uganda (Criminal Appeal No. 27 of 1989)
  • Rwabugande v Uganda [2017] UGSC 8
  • Abelle Asuman v Uganda [2018] UGSC 10
  • Kakooza v Uganda [1994] UGSC 17
  • Anguyo v Uganda [2016] UGCA 39
  • Sande v Uganda [2014] UGCA 11
  • Onyabo Bosco v Uganda [2017] UGCA 98
  • Tumusiime Henry v Uganda (Criminal Appeal No. 85 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.