Wakilii

Busingye and Another v Uganda (Criminal Appeal 48 of 2019; Criminal Appeal 56 of 2019)

Court of Appeal · [2023] UGCA 228 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder and aggravated robbery
Decision
Appeal dismissed; convictions for murder and aggravated robbery, the 27 and 17 year sentences, and the UGX 4,000,000 compensation order upheld.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

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 of Appeal dismissed the appeal against conviction and sentence for murder and aggravated robbery. It held that the circumstantial evidence — the appellants being the last persons seen with the deceased, their suspicious association, the second appellant's flight, and their discredited alibis — was incompatible with any reasonable hypothesis other than guilt. The 'last seen' doctrine placed a duty on the first appellant to explain the deceased's death, which he failed to discharge, while the second appellant was liable through common intention under s.20 of the Penal Code Act. The 27-year sentence was within range and not manifestly excessive, and the compensation order was mandatory under s.286(4). Ground three was struck out under Rule 66(2).

Facts

On 17 June 2016 the two appellants were seen together at a bar in Katojo Trading Centre, Kanungu district. The second appellant's presence raised suspicion among boda-boda riders because he had previously disappeared from the area after stealing a motorcycle. At about 7:30pm the first appellant hired the deceased, a boda-boda cyclist, to carry him; they first picked up another person and were last seen heading towards Kambuga. About 25-30 minutes later the deceased was found badly injured in a pool of blood and his motorcycle was missing; he died on the way to hospital. Several prosecution witnesses knew the appellants and identified them as the persons last seen with the deceased alive. The second appellant disappeared again after the incident and was arrested about four months later. Both appellants gave unsworn testimonies denying involvement and raising alibis, which the trial court rejected. No witness directly saw the assault, so the prosecution case rested on circumstantial evidence.

Issues

  1. Whether the trial Judge erred in convicting the appellants on circumstantial evidence said to be very weak.
  2. Whether the doctrine of 'last seen' and the principle of common intention were properly invoked to fix the appellants with responsibility for the murder and aggravated robbery.
  3. Whether the sentence of 27 years' imprisonment and the compensation order were harsh and manifestly excessive.
  4. Whether an appellant may abandon grounds of appeal without leave of court under Rule 67 of the Court of Appeal Rules.
  5. Whether a ground of appeal that is general and argumentative should be struck out for offending Rule 66(2) of the Court of Appeal Rules.

Orders

  • Ground three of the memorandum of appeal struck out for offending Rule 66(2) of the Court of Appeal Rules.
  • Appeal dismissed.
  • Conviction, sentence and compensation order of the trial court upheld.

Key headnotes

Evidence — Circumstantial Evidence — Inculpatory Facts Incompatible with Innocence
Where the prosecution case depends solely on circumstantial evidence, the court must, before convicting, be satisfied that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt, and that there are no co-existing circumstances weakening that inference.
Evidence — Circumstantial Evidence — Caution Required
Circumstantial evidence must be treated with caution and narrowly examined because such evidence can easily be fabricated, and an inference of guilt may only be drawn after ensuring no co-existing circumstances weaken or destroy that inference.
Criminal Law — Homicide — 'Last Seen' Doctrine — Duty to Explain Death
Where the deceased was last seen in the company of the accused, a rebuttable presumption arises placing a duty on that accused to explain how the deceased met his death; in the absence of a satisfactory explanation the court is justified in inferring that the accused caused the death, provided the doctrine is supported by other circumstantial evidence.
Criminal Law — Common Intention — Liability under s.20 Penal Code Act
Where two accused persons act in a close, coordinated and interconnected manner such that their conduct cannot be delinked, each is liable for the offences committed in furtherance of their common unlawful purpose under section 20 of the Penal Code Act.
Criminal Law — Sentence — Appellate Interference with Sentencing Discretion
An appellate court will not interfere with the sentencing discretion of the trial judge unless the trial court acted on a wrong principle, overlooked a material factor, or the sentence is illegal or so manifestly excessive as to amount to an injustice.
Criminal Law — Aggravated Robbery — Mandatory Compensation under s.286(4) Penal Code Act
Where a convict of aggravated robbery is not sentenced to death, section 286(4) of the Penal Code Act makes it mandatory for the court to order compensation of the victim, and the quantum may properly be founded on documentary evidence of the value of the robbed property.
Civil Procedure — Court of Appeal Rules — Concise Grounds and Abandonment of Grounds
A ground of appeal that is general and argumentative rather than concise offends Rule 66(2) of the Court of Appeal Rules and may be struck out; however, Rule 67 does not require an appellant to obtain leave of court before abandoning a ground of appeal, since that rule merely permits the filing of a supplementary memorandum with leave.

Legislation cited (9)

  • Penal Code Act Cap 120 s.188
  • Penal Code Act Cap 120 s.189
  • Penal Code Act s.285
  • Penal Code Act s.286(1)
  • Penal Code Act s.286(4)
  • Penal Code Act s.20
  • Judicature (Court of Appeal Rules) Directions, S.I 13-10 r.30(1)(a)
  • Court of Appeal Rules r.66(2)
  • Court of Appeal Rules r.67

Cases cited (21)

  • Sseremba v Uganda (Criminal Appeal No. 480 of 2017)
  • Fredrick Zaabwe v Orient Bank Ltd (Civil Appeal No. 4 of 2006)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Byaruhanga Fodori v Uganda (Criminal Appeal No. 18 of 2002)
  • Tindiowihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
  • Taijudeen Hiyasu Vs The State, SC 241/2013
  • Moses Jua Vs. The State (2007) LPELR-CMU4A2OO6
  • Stephen Haruna Vs. The Attorney-General of the Federation (2010)
  • Matovu Frank and Another v Uganda (Criminal Appeal No. 111 of 2018)
  • Taylor Vs R
  • Ismail Vs The State
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kyaterekera George William V Uganda, Court of Appeal Criminal Appeal No.773 of 2010
  • Ssemanda Christopher and Muyingo Denis v Uganda (Criminal Appeal No. 77 of 2010)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • Kisitu Majaidin alias ... Vs Uganda, Court of Appeal Criminal Appeal No. 028 of 200
  • Ogalo s/o Owuora Vs R (1954) 21 E.A.C.A 126
  • R Vs Mohamedali Janal (1948) 15 E.A.C.A 126
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.