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Ssetumba and Others v Uganda (Criminal Appeal 467 of 2020)

Court of Appeal · [2023] UGCA 257 · 2023 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from a High Court conviction and 25-year sentence for aggravated robbery
Decision
Conviction for aggravated robbery upheld; sentence of 25 years set aside and substituted with 23 years and 5 months' imprisonment for each appellant.

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Holding

The Court of Appeal dismissed the appeals against conviction for aggravated robbery. On the assessors, it held that the trial judge's reminders that they were 'still on oath' showed they had been sworn, and that any omission to record this caused no failure of justice and was cured by section 139 of the Trial on Indictments Act. On alibi, cogent identification evidence placed each appellant at the scene, so the alibis—disclosed late—were rightly rejected as afterthoughts without need for further investigation. On sentence, the court found the 25-year term illegal and ambiguous for failing to clearly deduct remand time under Article 23(8); it set the sentence aside and substituted 23 years and 5 months for each appellant.

Facts

On 29 April 2019, at about 2:30 am, three men broke into the homestead of Kamya Godfrey at Bulaga Village, Nakabuga, Wakiso District, entering the room of his son, Ssozi Julius. They turned on the lights and demanded money, threatening Ssozi with pangas. When he resisted and raised an alarm, they hacked his head and legs, causing serious injuries and a permanent disability to his leg. His father, alerted by the alarm, saw the assailants through windows lit by security lights and also recognised them. The victim and his father identified all three men, whom they knew from the village, and later identified them at police identification parades. Property was taken from the victim's room and not recovered. The appellants denied the offence and each raised an alibi. The trial judge rejected the alibis, convicted them of aggravated robbery, and sentenced each to 25 years' imprisonment, stating the remand period was inclusive of the sentence.

Issues

  1. Whether the trial judge's failure to record the swearing-in of the assessors rendered the trial a nullity or occasioned a miscarriage of justice.
  2. Whether the trial judge erred in rejecting the appellants' defences of alibi where the prosecution did not investigate or disprove them.
  3. Whether the sentence of 25 years' imprisonment was illegal, manifestly harsh and excessive in the circumstances.

Orders

  • Grounds 1 and 2 of the appeal fail; the appeal against conviction is dismissed.
  • The sentence of 25 years' imprisonment imposed on each appellant is set aside as illegal and ambiguous.
  • Each appellant is sentenced to 23 years and 5 months' imprisonment (25 years less 1 year and 7 months spent on remand).
  • The sentences shall commence on 4th December 2020, the date of conviction.

Key headnotes

Criminal Procedure — Assessors — Failure to administer or record the assessors' oath
A failure to swear in assessors, or to record their swearing-in, does not vitiate a trial where it has occasioned no failure of justice; such an omission falls within section 139 of the Trial on Indictments Act and does not result in setting aside the conviction.
Criminal Procedure — Alibi — Burden of proof and duty to disprove
An accused who sets up an alibi does not assume the burden of proving it; the prosecution must disprove it. However, where identification evidence positively places the accused at the scene of the crime, the alibi is displaced and the prosecution need not adduce further evidence or investigate the alibi to discredit it.
Evidence — Identification — Alibi disclosed late treated as afterthought
Where the prosecution adduces cogent identification evidence placing the accused at the scene and the accused first discloses the alibi only during testimony at trial, the court may treat the alibi as an afterthought and reject it.
Criminal Procedure — Sentencing — Deduction of remand period — Article 23(8) of the Constitution
A sentence that does not clearly deduct the period an accused spent on remand, as required by Article 23(8) of the Constitution, is illegal; a sentence stating that the remand period is 'inclusive' of the term imposed is ambiguous and must be set aside.
Criminal Procedure — Sentencing — Sentence must be clear and unambiguous
A court must pass a clear, definite and ascertainable sentence so that the convicted person knows with certainty the punishment imposed upon him or her.

Legislation cited (12)

  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Trial on Indictments Act s.3
  • Trial on Indictments Act s.67
  • Trial on Indictments Act s.139
  • Trial on Indictments Decree s.137
  • Criminal Procedure Code Act s.34
  • Constitution Article 28(1)
  • Constitution Article 126(2)(e)
  • Constitution Article 23(8)
  • Judicature Act s.11
  • Court of Appeal Rules rule 30(1)

Cases cited (30)

  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Komakech v Uganda (1992-1993) HCB 21
  • Uganda v Guster Nsubuga and Robinhood Byamukama (Criminal Appeal No. 92 of 2018)
  • Alenyo Marks v Uganda (Criminal Appeal No. 8 of 2007)
  • Mugisha Wilson v Uganda (Criminal Appeal No. 309 of 2010)
  • Agaba Lillian and Amutuheire Patrick v Uganda (Criminal Appeals No. 247 and 239 of 2017)
  • Ndaula v Uganda [2021] 1 EA 214
  • Woolmington v DPP [1935] UKHL 1
  • Miller v Minister of Pensions [1947] 2 ALL ER 372
  • Ainomugisha v Uganda (Criminal Appeal No. 19 of 2015)
  • R v Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145
  • Buhingiro v Uganda [2018] UGSC 2
  • Opolot Justine and Another v Uganda (Criminal Appeal No. 155 of 2009)
  • R v Chemulon Wero Olango (1937) 4 E.A.C.A. 46
  • Festo Androa Asenua and Kakooza Joseph v Uganda (Criminal Appeal No. 1 of 1998)
  • R v Ahmed bin Abdul Hafid (1934) 1 EACA 76
  • Rwabugande Moses v Uganda
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2005)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Etoma Tom v Uganda (Criminal Appeal No. 404 of 2016)
  • Kigozi Livingstone and Another v Uganda (Criminal Appeal No. 365 of 2016)
  • Olupot Sharif and Another v Uganda (Criminal Appeal No. 730 of 2014)
  • Ojangole Peter v Uganda (Criminal Appeal No. 34 of 2017)
  • Guloba Rogers v Uganda (Criminal Appeal No. 57 of 2013)
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
  • Kibaruma John v Uganda (Criminal Appeal No. 225 of 2010)
  • Umar Sebidde v Uganda (Criminal Appeal No. 23 of 2002)
  • Baingana Godfrey and 3 Others v Uganda (Criminal Appeal No. 29 of 2013)
  • Okoth Julius and 2 Others v Uganda (Criminal Appeal No. 15 of 2014)
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.