Wakilii

Habib Salim v Uganda (Criminal Appeal 407 of 2016)

Court of Appeal · [2023] UGCA 139 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Appeal dismissed; conviction and 35-year sentence for murder upheld

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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

The Court of Appeal dismissed the appeal against conviction and sentence for murder. It held that the deceased's dying declaration, received with caution, was sufficiently corroborated by a single identifying witness who saw the appellant walking away from the scene and by post-mortem evidence of physical violence, establishing participation. On remand time, the court held the arithmetic deduction rule in Rwabugande Moses applies only to sentences delivered after 3 March 2017 and did not bind the trial court, whose 2016 sentence merely needed to consider remand. The 35-year sentence fell within the sentencing guideline range for murder and was not harsh given the brutal killing of an elderly woman.

Facts

On 1 November 2014 at around 6:30am in Gobiri Nyaria cell, Maracha district, the deceased, a 75-year-old woman, was heard raising an alarm near her home. A neighbour who responded found the appellant moving away from the scene where the deceased lay unconscious. Relatives rushed her to hospital, where she regained consciousness and told her niece (PW1) that the appellant had boxed her in the chest and, when she fell, continued kicking her in the stomach. She said she made an alarm three times. Shortly afterwards her voice weakened, she vomited blood, collapsed and died. The post-mortem found death resulted from respiratory failure with pneumohaemothorax, closed head injury and abdominal visceral organ contusion, all due to physical violence. PW2 testified she found the deceased unconscious and saw the appellant about 30 metres away walking from the scene. The appellant was charged with murder, convicted and sentenced to 35 years' imprisonment.

Issues

  1. Whether the trial judge erred in holding the appellant responsible for the death of the deceased in the absence of corroborative evidence.
  2. Whether the trial judge erred by failing to account for the two-year pre-trial remand period when sentencing the appellant.
  3. Whether the sentence of 35 years' imprisonment was harsh and excessive in the circumstances.

Orders

  • The appeal is dismissed.
  • Conviction of the lower court upheld.
  • Sentence of the lower court upheld.

Key headnotes

Criminal Evidence — Dying Declarations — Need for Corroboration in Judicial Practice
A dying declaration is always received with caution because the test of cross-examination may be wanting; although corroboration is not necessary as a matter of law, judicial practice requires that corroboration be sought.
Criminal Evidence — Circumstantial Evidence — Conduct of Accused Inconsistent with Innocence
The conduct of an accused walking away from the scene in response to an elderly victim's alarm, together with a corroborated dying declaration and favourable identification conditions, may sustain a conviction where there is no other reasonable explanation pointing away from guilt.
Sentencing — Article 23(8) — Treatment of Pre-trial Remand Period
The requirement under Rwabugande Moses to arithmetically deduct time spent on remand from the sentence applies only to decisions delivered after 3 March 2017; for earlier sentences it suffices that the trial court considered the remand period.
Sentencing — Principle of Consistency — Sentencing Range for Murder
A sentencing court is bound by the principle of consistency and is guided by the sentencing range for capital offences under the Constitution (Sentencing Guidelines) Practice Directions 2013, where murder starts from 35 years to death, adjustable for mitigating and aggravating factors.
Sentencing — Appellate Interference — Manifestly Excessive Sentence
An appellate court will not interfere with a trial court's discretionary sentence unless it is manifestly excessive, so low as to amount to a miscarriage of justice, wrong in principle, or where the court failed to consider an important matter.

Legislation cited (6)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Evidence Act s.30
  • Constitution of Uganda 1995 art.23(8)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Guideline 6(c)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Guideline 19(1)

Cases cited (27)

  • Pandya vs R (1957) EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Begumisa and 3 Others v Tibaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Coghlan v Cumberland (1898) 1 Ch 704
  • Tindigwihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
  • Byaruhanga Fodori v Uganda (Criminal Appeal No. 18 of 2002)
  • Ntambola v Uganda (Criminal Appeal No. 34 of 2015)
  • Kazarwa Henry v Uganda (Criminal Appeal No. 17 of 2015)
  • Oyee George v Uganda (Court of Appeal Case No. 159 of 2012)
  • Nzabaikukize Jamada v Uganda (Supreme Court Criminal Appeal No. 1 of 2015)
  • Abdullah Bin Wendo and Another v R (1953) 2 EACA 583
  • R v Eligu s/o Odel and Epangu s/o Ewunya (1943) 10 EACA 90
  • Pius Jasunga v R (1954) 21 EACA 331
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Bulila Christiano and Another v Uganda (Criminal Appeal No. 61 of 2015)
  • Nashimolo Paul Kibolo v Uganda (Criminal Appeal No. 46 of 2017)
  • Sebunya Robert and Another v Uganda (Supreme Court Criminal Appeal No. 58 of 2016)
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Akbar Hussein Godi v Uganda (Criminal Appeal No. 3 of 2013)
  • Korobe Joseph v Uganda (Criminal Appeal No. 243 of 2013)
  • Olara John Peter v Uganda (Court of Appeal Criminal Appeal No. 30 of 2010)
  • Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • Susan Kigula and Others v Attorney General (Constitutional Appeal No. 3 of 2006)
  • Ndyomugenyi v Uganda (Criminal Appeal No. 57 of 2016)
  • Mpagi Godfrey v Uganda (Criminal Appeal No. 63 of 2015)
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.