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Ssalongo Sserwadda and Others v Uganda (Criminal Appeal 147 of 2019; Criminal Appeal 214 of 2020; Criminal Appeal 221 of 2020)

Court of Appeal · [2023] UGCA 325 · 2023 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence from the High Court at Bushenyi
Decision
Appeal partly allowed; convictions upheld, the original 45-year sentence set aside as illegal and substituted with 41 years, 5 months and 13 days' imprisonment after deducting remand; compensation order upheld.

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Holding

The Court of Appeal upheld the convictions, holding that the contradictions in the prosecution evidence were minor and explained by the evidence of PW3 and PW9, and that grounds not pleaded in the memorandum of appeal (hearsay, identification, charge-and-caution statement) could not be entertained where no illegality or constitutional imperative arose. The 45-year sentence was not manifestly excessive, but was illegal for failure to deduct the remand period under Article 23(8); it was set aside and the appellants resentenced to 45 years less the 4 years, 6 months and 17 days spent on remand. The compensation order requiring sale of the first appellant's vehicle was upheld because the vehicle facilitated the robbery.

Facts

On the night of 22 July 2013 a Kampala-bound bus left Kasese with about 50 passengers. At Kyomuhanga a group of thugs, one armed with a gun and others with pangas, stopped the bus, pulled out and beat the driver, robbed him, and ordered passengers to surrender their property; those without money were beaten and cut. The robbers drove the bus to Kabagarame and ordered passengers out one by one. Mugizi Kenneth was shot and cut with a panga after pleading for his life, and died. Police pursued the bus and shot one of the robbers, Balikudembe Kinuma, who later disclosed the identities, residences and roles of the participants and the use of the first appellant's vehicle. That information led to the arrest of the appellants, recovery of the gun (exhibit PE16) and of the first appellant's vehicle (UAK 898D) used in the robbery. The four appellants were convicted of murder and aggravated robbery and each sentenced to 45 years' imprisonment.

Issues

  1. Whether contradictions and inconsistencies in the prosecution evidence were of such gravity as to render the convictions unsafe.
  2. Whether the Court of Appeal could entertain grounds (hearsay, identification and the charge-and-caution statement) not specified in the memorandum of appeal.
  3. Whether the sentence of 45 years' imprisonment was harsh and manifestly excessive, including by reason of disparity with the accomplice's sentence.
  4. Whether the sentence was illegal for failure to deduct the period spent on remand as required by Article 23(8) of the Constitution.
  5. Whether the compensation order made against the first appellant alone was discriminatory and unlawful.

Orders

  • Appeal partially succeeds.
  • The conviction of the appellants is upheld.
  • The sentence of the lower Court is set aside.
  • The appellants are sentenced to 45 years' imprisonment, less the 4 years, 6 months and 17 days spent on remand, to serve 41 years, 5 months and 13 days' imprisonment effective 13 March 2018.
  • The order for compensation made by the trial Court is upheld.

Key headnotes

Evidence — Contradictions and Inconsistencies in Prosecution Evidence — Minor versus Grave
Minor contradictions and inconsistencies between prosecution witnesses are ignored unless they point to deliberate untruthfulness; only grave contradictions, unless satisfactorily explained, lead to rejection of the testimony.
Evidence — Admissibility — Information Leading to Discovery of Facts
Under section 29 of the Evidence Act, where a fact is discovered in consequence of information received from an accused person, so much of that information as relates distinctly to the fact discovered may be proved, whether or not it amounts to a confession.
Criminal Procedure — Appeals — Grounds Not Specified in the Memorandum of Appeal
Under rule 74(1)(a) of the Judicature (Court of Appeal Rules) Directions an appellant may not, without leave, argue a ground not specified in the memorandum of appeal; the exception permitting new grounds applies only where the matter raises an illegality or a constitutional imperative.
Criminal Procedure — Sentencing — Appellate Interference — Manifestly Excessive Threshold
An appellate court will interfere with a sentence on the ground of severity only where it is manifestly excessive, that is where it exceeds the permissible range or sentence variation; differential sentences among co-accused for the same offence are within the trial judge's discretion.
Criminal Procedure — Sentencing — Mandatory Arithmetical Deduction of Remand Period under Article 23(8)
Article 23(8) of the Constitution makes it mandatory that a sentencing court arithmetically deduct the period spent on remand from the sentence considered appropriate; a sentence that fails to do so is illegal and will be set aside.
Criminal Procedure — Sentencing Orders — Compensation under Section 286(4) Penal Code Act
A court has power under section 286(4) of the Penal Code Act to order compensation, including the sale of property used to facilitate the offence; ordering sale of an accused's vehicle that facilitated the robbery is not discriminatory merely because no like order is made against co-accused.

Legislation cited (12)

  • Penal Code Act, Cap 120 ss.188 and 189
  • Penal Code Act, Cap 120 ss.285 and 286
  • Penal Code Act, Cap 120 s.286(4)
  • Penal Code Act, Cap 120 s.189
  • Evidence Act ss.4, 8 and 29
  • Judicature Act s.11
  • Constitution of the Republic of Uganda Article 23(8)
  • Constitutional (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, Legal Notice No. 8 of 2013, principle 6(c)
  • Constitutional (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, Legal Notice No. 8 of 2013, principle 15
  • Judicature (Court of Appeal Rules) Directions, S.I 13-10, rule 30(1)(a)
  • Judicature (Court of Appeal Rules) Directions, rule 67
  • Judicature (Court of Appeal Rules) Directions, rule 74(1)(a)

Cases cited (19)

  • Abdalla Bin Wendo V R (1953) 20 EACA 166
  • Roria V R (196?) EA 583
  • Abdullah Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Uganda v Nashaba Paddy (Criminal Appeal No. 39 of 2000)
  • Kamya Johnson Wavamunno v Uganda (Criminal Appeal No. 16 of 2000)
  • Anguyo Siliva v Uganda (Criminal Appeal No. 38 of 2014)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Uganda v George Wilson Simbwa (Criminal Appeal No. 37 of 1995)
  • Obwalatum Francis v Uganda (Criminal Appeal No. 30 of 2015)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Magero Patrick and Another v Uganda (Criminal Appeal No. 076 of 2019)
  • Opolot Justine and Another v Uganda (Criminal Appeal No. 20 of 2014)
  • Kaddu Kalule Lawrence v Uganda (Criminal Appeal No. 72 of 2018)
  • Kisugu Quarries v The Administrator General (Civil Appeal No. 10 of 1998)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
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.