Wakilii

Onyolo v Uganda (Criminal Appeal 214 of 2019)

Court of Appeal · [2023] UGCA 178 · 2023 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder and aggravated robbery
Decision
Convictions and sentences on all three counts quashed; appellant (and co-accused Okol Emmanuel) ordered released immediately unless held on some other lawful charge.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court held that the charge and caution statement of a co-accused (Ogwang Benson), who was not called as a witness, was admissible only against its maker under s.23 of the Evidence Act, not against the appellant. The testimony of the police witnesses (PW2, PW4 and PW5) recounting what others had told them was hearsay, not circumstantial evidence. As the prosecution adduced no admissible evidence of the appellant's participation and never demolished his alibi, the appellant ought not to have been put to his defence. The murder convictions, being intertwined with the aggravated robbery, could not be severed, so all three convictions and the sentences were quashed and immediate release ordered.

Facts

On the night of 21 January 2016, Opio Vincent left Amonononeno trading centre on a motorcycle ridden by Otim Martin and headed home. Shortly after, gunshots were heard in the direction they had taken, and both men were found dead with the motorcycle abandoned about 50 metres away. Opio Vincent died of severed brain injuries from a gunshot wound; Otim Martin died of severed lung tissue and heavy bleeding from a gunshot. The appellant was indicted with four others for the two murders and the aggravated robbery of UGX 3,000,000 from Opio Vincent. Two co-accused were dealt with separately (one by plea bargain, one by a guilty plea) and another was discharged. The appellant and Okol Emmanuel were tried and convicted, the appellant being sentenced to 40 years' imprisonment on each count. The prosecution's case rested on a co-accused's charge and caution statement and police witnesses recounting what others had told them. The appellant raised an alibi that he was burning bricks elsewhere when the offences were committed.

Issues

  1. Whether the trial judge erred in relying on the charge and caution statement of a co-accused, who was not called as a witness, to convict the appellant.
  2. Whether the prosecution adduced sufficient admissible evidence to prove the appellant's participation in the offences and to demolish his alibi.

Orders

  • Ground 1 of the appeal allowed.
  • Conviction of the appellant and his co-accused, Okol Emmanuel, on all 3 counts quashed.
  • Sentences imposed on the appellant and his co-accused set aside.
  • Immediate release of the appellant and his co-accused ordered unless held on some other lawful charge.

Key headnotes

Evidence — Confessions — Charge and Caution Statement — Admissibility Against a Co-Accused
A charge and caution statement made by a co-accused can be proved only against its maker under section 23 of the Evidence Act; it is otherwise inadmissible against other accused persons as it falls within the species of hearsay evidence.
Evidence — Accomplice Evidence — Requirement to Call the Accomplice as a Witness
To use a co-accused's account against another accused, the co-accused must be called as a witness so that the evidence may be considered as accomplice evidence under section 132 of the Evidence Act; an uncalled co-accused's charge and caution statement cannot form the crux of the case against others.
Evidence — Hearsay — Distinction from Circumstantial Evidence
Testimony in which witnesses relate only what they were told by others about an accused's involvement is inadmissible hearsay and cannot be elevated to circumstantial evidence; circumstantial evidence is direct evidence of facts properly perceived by the testifying witnesses from which inferences may be drawn.
Criminal Procedure — Defence of Alibi — Burden of Proof
An accused who sets up an alibi bears no burden to prove it; the burden lies on the prosecution to adduce evidence demolishing the alibi and establishing the accused's participation in the offence.
Criminal Procedure — Sufficiency of Evidence — Putting an Accused to His Defence
Where the prosecution adduces no admissible evidence pointing to the accused's participation, the accused ought not to be put to his defence, and a conviction founded on suspicion or inadmissible evidence cannot be sustained.

Legislation cited (7)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.286(1)(b)
  • Evidence Act s.23
  • Evidence Act s.132
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) Directions r.30(1)(a)

Cases cited (13)

  • Kifamunte Henry v Uganda [1998] UGSC 20
  • Ainomugisha v Uganda [2017] UGSC 12
  • Mushikomu Watete alias Peter Wakhoka & 3 Others v Uganda [2000] UGSC 11
  • Baluku Samuel & another v Uganda [2018] UGSC 26
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kiwalabye v Uganda (Criminal Appeal No. 143 of 2001)
  • Guloba Rogers v Uganda [2021] UGCA 16
  • Rwabugande Moses v Uganda [2017] UGSC 8
  • Batuli Moses & 7 Others v Uganda (Criminal Appeal No. 225 of 2014)
  • Simon Musoke v R (1958) EA 715
  • Bogere Moses v Uganda [1998] UGSC 22
  • Maina wa Kinyatti v Republic (Criminal Appeal No. 60 of 1983) [1984] eKLR
  • Sekitoleko v Uganda [1970] EA 531
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.