Wakilii

Okodi and Others v Uganda (Criminal Appeal 168 of 2019)

Court of Appeal · [2023] UGCA 176 · 2023 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Conviction for murder upheld; sentence reduced from 45 to 38 years, less 5 years' remand, to serve 33 years' imprisonment.

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Holding

The Court of Appeal upheld the appellants' conviction for murder, holding that a conviction may rest on the evidence of a single identifying witness where the prevailing conditions favour correct identification. PW2 knew the appellants and identified them at close range by solar and torch light, and was found a truthful witness; the dying declaration served only as corroboration. The appellants' alibis were either raised belatedly, undermining their credibility, or, in the first appellant's case, contradicted by his own witness on timing. On sentence the appeal partly succeeded: for consistency with comparable authority the 45-year term was reduced to 38 years, less five years spent on remand, leaving 33 years to serve.

Facts

On the night of 12 August 2013 the deceased, Joel Okunyu, and his wife Scovia Agoa (PW2) were attacked at their home at Lira by seven assailants, among them the four appellants. PW2, who already knew the appellants, identified them by light from a solar bulb and by torch light at close range — about five metres on their arrival and closer when the attackers followed the deceased into the kitchen. The deceased was cut and stabbed multiple times and died. Before dying he named his attackers to PW3, in the presence of PW4, constituting a dying declaration. There was a proven land dispute between the deceased and the third appellant. The appellants raised alibis: the first appellant claimed to have been tending cattle and sheltering from rain at his father's (DW8) home, but DW8's evidence on the time of arrival contradicted the first appellant's own testimony; the remaining appellants raised their alibis only at trial, years after arrest. The evidence placed the attack at slightly before or about 8.00pm. The appellants were arrested in August 2013 and convicted and sentenced in February 2018.

Issues

  1. Whether the appellants were properly identified by the deceased and the single identifying witness (PW2) as the assailants.
  2. Whether the trial judge erred in relying on the evidence of a single identifying witness without corroboration to convict.
  3. Whether the dying declaration relied upon was credible and properly relied upon.
  4. Whether the prosecution discharged its burden of placing the appellants at the scene of crime and rebutting their alibis.
  5. Whether the trial judge failed to exhaustively evaluate the evidence on record.
  6. Whether the sentence of 45 years' imprisonment was manifestly harsh and excessive.

Orders

  • Grounds 1, 2, 3, 4 and 5 of the Appeal fail; the conviction is upheld.
  • Ground 6 of the Appeal succeeds; the respective sentences are set aside.
  • Sentences substituted with thirty-eight (38) years each, less the five (5) years spent on remand.
  • Each appellant shall serve a sentence of thirty-three (33) years from the date of conviction.

Key headnotes

Evidence — Identification — Conviction on a single identifying witness without corroboration
A conviction may be founded on the evidence of a single identifying witness, even without corroboration, where the court tests that evidence with the greatest care and is satisfied that the conditions prevailing at the scene favoured correct identification.
Evidence — Identification — Factors governing the quality of identification evidence
In assessing identification evidence the court must examine the length of observation, the distance between witness and accused, the lighting, and the witness's familiarity with the accused; the better the quality of these factors, the lower the danger of mistaken identity.
Criminal Procedure — Defence of alibi — Burden of proof
Setting up an alibi does not shift the burden of proof to the accused; the prosecution must still prove beyond reasonable doubt that the accused was at the scene, but an accused who relies on an alibi must support it with credible and cogent evidence before it can raise reasonable doubt against the prosecution's case.
Criminal Procedure — Defence of alibi — Belated disclosure and credibility
An alibi should be raised at the earliest possible opportunity so that the prosecution may investigate it; an alibi disclosed belatedly, particularly for the first time at trial, attracts the inference of a prepared defence and goes to the credibility of the defence.
Evidence — Dying declaration — Need for corroboration
It is generally unsafe to base a conviction solely on the dying declaration of a deceased person made in the absence of the accused and untested by cross-examination unless there is satisfactory corroboration; such a declaration may, however, properly be used to corroborate other identification evidence.
Criminal Procedure — Sentencing — Appellate interference and consistency
An appellate court may interfere with a sentence only where the trial court acted on a wrong principle, overlooked a material fact, or where the sentence is manifestly harsh and excessive; the need for consistency with sentences imposed in comparable cases may justify a reduction.

Legislation cited (4)

  • Penal Code Act Cap. 120 s.188
  • Penal Code Act Cap. 120 s.189
  • Trial on Indictment Act Cap. 23 s.132
  • Evidence Act Cap. 6 s.165

Cases cited (21)

  • Baquma Fred vs. Usanda, Criminal Appeal No. 7 of 2004 (Supreme Court)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Festo Androa Asenua and Another v Uganda [1998] UGSC 23
  • R v Chemulon Wero Olango (1937) 4 EACA 46
  • Okethi Okale and Others v Republic [1965] EA 555
  • Uganda v George Wilson Simbwa (Criminal Appeal No. 37 of 1995)
  • Hadija Nasolo v Uganda (Criminal Appeal No. 14 of 2000)
  • Abdalla Bin Wendo and Another v R (1953) 20 EACA 166
  • Criminal Appeal No. 9 of 1987 (Supreme Court)
  • R v Sukha Singh s/o Wazir Singh and Others (1939) 6 EACA 145
  • Lt. Jonas Ainomugisha and Others v Uganda (Criminal Appeal No. 28 of 1994)
  • Kiwalabye v Uganda (Criminal Appeal No. 143 of 2001)
  • Abdalla Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Roria v R [1967] EA 583
  • Sekitoleko v Uganda [1967] EA 531
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Ayimani Swaid Dodo and Another v Uganda (Criminal Appeals No. 401 and 411 of 2016)
  • Yusuf Kyobe Semalogo v Uganda tlB 3/67
  • Uganda v Osherura and Another (HC No. 1114 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.