Nakalyaka v Uganda (Criminal Appeal 141 of 2018)

Court of Appeal · [2023] UGCA 296 · 2023 Appeal Partly Allowed — Conviction Upheld, Sentence Reduced ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against conviction and sentence for murder, from a decision of the High Court at Iganga (Jinja Criminal Session Case No. 113 of 2013)

Decision

Conviction for murder upheld; sentence reduced from 31 years to 26 years' imprisonment, commencing 31 January 2017.

The full judgment

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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 of Appeal upheld the murder conviction. The trial judge properly relied on a single identifying witness who knew the appellant as a neighbour and frequent customer and recognised him by sight and voice, corroborated by the deceased's dying declaration admitted under s.30(a) of the Evidence Act, both identifications having been made under identical conditions. Although it was not proved that the appellant fired the fatal shot, he was liable for murder under the doctrine of common intention (s.20 Penal Code Act) for participating in an armed robbery in which the deceased was shot. The court allowed the sentence appeal, holding the trial judge erred by considering only aggravating factors and ignoring mitigation and consistency, and substituted 26 years' imprisonment.

Facts

On the evening of 12 August 2012 at Bugonza Village, Namugongo Sub County, Kaliro District, three men rode a motorcycle to the shop of the deceased, Anthony Kasajja. One man entered on the pretext of buying chewing gum and returned to the motorcycle. The appellant and another then entered the lamp-lit shop; the appellant ordered everyone to lie down and demanded money, telling the deceased he would die if he refused. An accomplice cocked a gun and the lamps were extinguished. The deceased's brother, PW1, who knew the appellant as a neighbour and frequent customer and recognised him by sight and voice, fled the shop and heard gunshots as he ran. The deceased was shot in the abdomen. Before dying en route to hospital, he told his father, PW2, that "Fabiano son of Leo" was among his attackers. The post-mortem attributed death to severe trauma, bleeding and shock from a gunshot wound. The appellant, who set up an alibi and alleged grudges, was arrested after reporting to police that villagers had threatened to kill him.

Issues

Whether the trial judge properly relied on the evidence of a single identifying witness, and whether that evidence required corroboration.
Whether the trial judge properly relied on the deceased's dying declaration to identify the appellant and convict him of murder.
Whether the appellant could be convicted of murder under the doctrine of common intention where it was not proved that he fired the fatal shot.
Whether the sentence of 31 years' imprisonment was manifestly harsh and excessive because the trial judge failed to consider the mitigating factors and the principle of consistency in sentencing.

Orders

Ground 1 dismissed; conviction for murder upheld.
Ground 2 allowed; the sentence of 31 years' imprisonment is set aside.
The appellant is sentenced to 26 years' imprisonment (a starting point of 30 years less 4 years spent on remand).
The sentence shall commence on 31st January 2017, the date of conviction.

Key headnotes

Evidence — Identification — Single Identifying Witness

A fact may be proved by a single witness and a court may convict on the evidence of a single identifying witness, but it must warn itself of the need to test such evidence with the greatest care, especially where the conditions favouring correct identification were difficult, and must advert to the danger of a witness being honest but mistaken.

Evidence — Identification — Recognition by Voice

A witness may recognise and identify an accused by voice, and a court may rely on such identification, particularly where the witness has long known the accused.

Evidence — Dying Declarations — Corroboration

A dying declaration is admissible under section 30(a) of the Evidence Act and may corroborate the evidence of a single identifying witness where the deceased and the witness made their identifications under identical conditions.

Criminal Law & Procedure — Common Intention — Liability for Murder (Penal Code Act s.20)

Where two or more persons form a common intention to prosecute an unlawful purpose and an offence is committed that is a probable consequence of that purpose, each is deemed to have committed the offence; an accused who participates in an armed aggravated robbery in which the victim is shot dead is guilty of murder even though it is not proved that he fired the fatal shot.

Criminal Law & Procedure — Sentencing — Failure to Consider Mitigating Factors

A sentencing court must weigh the mitigating factors against the aggravating factors before settling on a sentence; imposing a sentence on the basis of aggravating factors alone is an error of principle that entitles an appellate court to interfere with the sentence.

Criminal Law & Procedure — Sentencing — Principle of Consistency

Consistency is a vital principle of sentencing rooted in the rule of law; a sentencing court must have regard to sentences imposed in similar cases, and a failure to advert to the principle of consistency is an error warranting appellate interference.

Legislation cited (9)

Penal Code Act s.188
Penal Code Act s.189
Penal Code Act s.285
Penal Code Act s.286(2)
Penal Code Act s.20
Evidence Act s.30(a)
Judicature Act s.11
Court of Appeal Rules SI 13-10 r.30(1)
Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, 2013, paragraphs 6(c), 19, 20 and 21

Cases cited (33)

Bogere Moses & Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Abdalla Nabulere & Others v Uganda (Criminal Appeal No. 9 of 1978)
Mibulo Edward v Uganda (Criminal Appeal No. 17 of 1995)
Muhwezi & Another v Uganda (Supreme Court Criminal Appeal No. 25 of 2005)
Roria v Republic [1967] EA 583
Okethi Okale v R (1965) EA 555
Kamya Abdulla & 4 Others v Uganda (Criminal Appeal No. 24 of 2015) [2018] UGSC 12
R v Okute s/o Kitebe & Gadimba s/o Oumo (1941) 8 EACA 80
Wanjiro d/o Wamerio & Another (1956) 12 EACA 521
Vijay s/o Kanevasan & Others v Public Prosecutor [2010] 4 SLR 1119
Ewaice Musenya Ndui v Republic [2011] eKLR
Aharikundira Yustina v Uganda (Supreme Court Criminal Appeal No. 27 of 2005)
Oyita Sam v Uganda (Criminal Appeal No. 307 of 2010)
Francis Obwalatum v Uganda (Criminal Appeal No. 48 of 2011)
Kakubi Paul & Muramuzi David v Uganda (Criminal Appeal No. 126 of 2008)
Nalule Sarah v Uganda (Criminal Appeal No. 0003 of 2013)
Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)
Kyalimpa Edward v Uganda (Supreme Court Criminal Appeal No. 10 of 1995)
Namutabanewe Jamiru v Uganda (Supreme Court Criminal Appeal No. 74 of 2007)
Sunday Gordon v Uganda (Criminal Appeal No. 103 of 2006)
Sebuliba Straton v Uganda (Criminal Appeal No. 575 of 2005)
Florence Abbo v Uganda (Criminal Appeal No. 168 of 2013)
Magero Patrick v Uganda (Criminal Appeal No. 076 of 2019)
Ogalo s/o Owoura v R (1954) 21 EACA 270
R v Mohammed Jamal (1948) 15 EACA 126
Bamanya Happy & Katumba Rashid v Uganda (Supreme Court Criminal Appeal No. 22 of 2016)
Sekajja Fred v Uganda (Supreme Court Criminal Appeal No. 78 of 2020)
Okao Jimmy alias Baby & Others v Uganda (Criminal Appeal No. 55, 62 & 67 of 2016)
Koreta Joseph v Uganda (Criminal Appeal No. 243 of 2013)
Tumusiime & Another v Uganda [2016] UGCA 73
Bakubye & Another v Uganda [2018] UGSC 5
Onyabo Bosco v Uganda [2017] UGSC 198

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.