Wakilii

Nakalyak v Uganda (Criminal Appeal 141 of 2018)

Court of Appeal · [2023] UGCA 311 · 2023 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Murder conviction upheld; sentence reduced from 31 years to 26 years' imprisonment, commencing 31 January 2017.

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Holding

The Court of Appeal upheld the murder conviction. It held the trial judge properly relied on a single identifying witness — a neighbour who knew the appellant from birth and recognised him by sight and voice — corroborated by the deceased's dying declaration made under identical conditions. Although it was not proved the appellant fired the fatal shot, he was liable for murder under the doctrine of common intention (s.20 Penal Code Act), having joined armed accomplices in a robbery and threatened the deceased with death. On sentence, the court found the judge erred by considering only aggravating factors and ignoring mitigation and consistency; it set aside the 31-year sentence and substituted 26 years' imprisonment.

Facts

On 12 August 2012 at Bugonza Village, Kaliro District, the appellant and two others rode a motorcycle to the shop of Anthony Kasajja. One man entered pretending to buy chewing gum and extinguished the inside lamp. The appellant and another then entered, ordered the occupants to lie down and demanded money, the appellant warning Kasajja he would die if he refused. An accomplice cocked a gun and a third put out the outside lamp. PW1, the deceased's brother, seized the moment to flee and raise an alarm, hearing gunshots as he ran. Kasajja was shot in the abdomen and, while being transported to hospital, told his father (PW2) that Fabiano son of Leo was among his attackers; he died before reaching Mulago. PW1 identified the appellant, a neighbour and frequent customer he had known from birth, by lamplight and by voice. The appellant raised an alibi and alleged grudges with the deceased's family. He was acquitted of aggravated robbery but convicted of murder.

Issues

  1. Whether the trial judge properly evaluated the evidence of identification and participation of the appellant in the murder.
  2. Whether the trial judge properly relied on the evidence of a single identifying witness and whether such evidence required corroboration.
  3. Whether the trial judge properly relied on the deceased's dying declaration to convict the appellant.
  4. 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.
  5. Whether the sentence of 31 years' imprisonment was manifestly harsh and excessive, the trial judge having allegedly failed to weigh mitigating factors and to observe consistency in sentencing.

Orders

  • Appeal against conviction dismissed; conviction for murder upheld.
  • Sentence of 31 years' imprisonment set aside.
  • Appellant sentenced to 26 years' imprisonment, to commence on 31 January 2017.

Key headnotes

Evidence — Identification — Single identifying witness
A court may convict on the evidence of a single identifying witness, but must warn itself of the need to test such evidence with the greatest care, especially where the conditions favouring correct identification were difficult.
Identification — Recognition by voice
A witness may recognise an accused by voice, and a court may rely on such voice identification, particularly where the witness has long and well known the accused.
Dying declarations — Corroboration of identification
A dying declaration admissible under section 30(a) of the Evidence Act may corroborate the evidence of a single identifying witness where both identifications were made under identical conditions.
Common intention — Liability under section 20 Penal Code Act
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 it; an accused who participated in an armed robbery is liable for the resulting murder even though he did not fire the fatal shot.
Sentencing — Duty to weigh mitigating factors
A sentencing court must weigh mitigating factors against aggravating factors; settling on a deterrent sentence while considering only aggravating factors is a wrong principle that entitles an appellate court to interfere.
Sentencing — Consistency and uniformity
Consistency is a vital principle of sentencing; a 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 rule 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 Kibebi & Gadimba s/o Oumo (1941) 8 EACA 80
  • Wanjiro d/o Wamerio & Another (1956) 12 EACA 521
  • Vijay s/o Kalevasan & Others v Public Prosecutor [2010] 4 SLR 1119
  • Ewalce Musenya Ndui v Republic [2011] eKLR
  • Aharikundira Yustina v Uganda (Supreme Court Criminal Appeal No. 27 of 2008)
  • 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 Straff 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)
  • Sekalja Fred v Uganda (Supreme Court Criminal Appeal No. 78 of 2020)
  • Okao Jimmy alias Baby & Others v Uganda (Criminal Appeals 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.