Wakilii

Asiya Seku v Uganda (Criminal Appeal No. 219 of 2015)

Court of Appeal · [2023] UGCA 92 · 2023 Conviction Upheld; Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal against conviction for murder and the death sentence imposed by the High Court at Pallisa
Decision
Conviction for murder upheld; death sentence set aside and substituted with 30 years imprisonment from date of conviction.

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 appellant's conviction for the murder of his brother during a land dispute. It found that although PW5 had been declared hostile and his evidence properly disregarded, the appellant was positively identified at the scene in broad daylight by PW3, PW4 and PW6, who knew him well, thereby destroying his alibi. The conviction was sound. However, the Court held that the case did not fall within the 'rarest of the rare' category warranting the death penalty under the Sentencing Guidelines. Considering the appellant's youth (26), first-offender status, capacity to reform and three years on remand, the death sentence was set aside and a sentence of 30 years imprisonment substituted.

Facts

The appellant and the deceased, Olamor Stephen, were stepbrothers involved in a long-standing family land dispute concerning land in Kakoro village, Pallisa District. On 17 July 2007, the deceased went to the disputed land with his son, local council officials, surveyors and police to survey his land and erect survey marks. While the deceased was showing the boundaries, the appellant and his brother Tom Akora emerged from a swamp, alleging the deceased was stealing their land. After attempting to remove the survey equipment, they attacked the deceased with pangas they had concealed, cutting him repeatedly around the head and body. The deceased fell and they continued cutting him, causing deep wounds to the head, back and nearly severing his right hand. Death resulted from haemorrhage and brain damage. The appellant fled and went into hiding for several years before being arrested on 24 April 2012. At trial he raised an alibi claiming he was grazing cattle and selling goods. He was convicted of murder and sentenced to death.

Issues

  1. Whether the trial Judge erred in evaluating PW5's evidence and wrongly concluded that the appellant killed the deceased.
  2. Whether the trial Judge erred in dismissing the appellant's defence of alibi.
  3. Whether the death sentence imposed was manifestly harsh and excessive in the circumstances.

Orders

  • Grounds 1 and 2 fail; the conviction for murder is upheld.
  • Ground 3 succeeds; the death sentence is set aside.
  • The appellant is resentenced to 30 years imprisonment to be served from the date of conviction.

Key headnotes

Evidence — Hostile Witness — Effect on Reliability of Testimony
Where a witness is declared hostile and cross-examined by the party calling him, his evidence cannot be relied upon, as the grant of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable.
Criminal Procedure — Defence of Alibi — Burden of Proof
An accused who raises a defence of alibi bears no burden of proving it; the onus remains on the prosecution throughout to place the accused at the scene of the crime and disprove the alibi.
Evidence — Identification — Conditions Favourable to Positive Identification
Positive identification by witnesses who knew the accused, in broad daylight and in the presence of many people, destroys a defence of alibi and is sufficient to place the accused at the scene of crime.
Sentencing — Death Penalty — 'Rarest of the Rare' Cases
A sentence of death may only be passed in exceptional 'rarest of the rare' cases where a custodial alternative is demonstrably inadequate; the presence of aggravating factors alone does not bring a case within that category.
Sentencing — Mitigation — Remand Period and Uniformity in Sentencing
In resentencing, a court must deduct time spent on remand under Article 23(8) of the Constitution and have regard to the principle of uniformity and consistency in sentencing, considering mitigating factors such as the offender's youth and capacity to reform.

Legislation cited (11)

  • Penal Code Act (Cap 120) s.188
  • Penal Code Act (Cap 120) s.189
  • Evidence Act s.153
  • Evidence Act s.154
  • Evidence Act s.154(c)
  • Judicature Act (Cap 13) s.11
  • Constitution of Uganda Article 23(8)
  • Constitution (Sentencing Guidelines for Courts of Judicature)(Practice) Directions 2013 para.17
  • Constitution (Sentencing Guidelines for Courts of Judicature)(Practice) Directions 2013 para.18
  • Constitution (Sentencing Guidelines for Courts of Judicature)(Practice) Directions 2013 para.20
  • Rules of the Court of Appeal Rule 30(7)

Cases cited (19)

  • Okwonga Anthony v Uganda (Criminal Appeal No. 45 of 1999)
  • Okwonga Anthony v Uganda (Supreme Court Criminal Appeal No. 20 of 2000)
  • Baguma Fred v Uganda (Supreme Court Criminal Appeal No. 7 of 2004)
  • Bashasha Sharif v Uganda (Supreme Court Criminal Appeal No. 82 of 2018)
  • Bogere Moses v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Fr. Narsensio Begumisa and 3 Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Batala Ve Uganda 1l974ll EA 4O2 (CAK)
  • Alowo v. Republic, !19721 E.A. 324
  • Penchanan us R.34 C.W.N. 526: A193O, C.276: 51 C.L.J. 2O3
  • Sekltoleko as Uganda [7967] 7 EA 531 (HCU)
  • Rorla a Republlc [7964 EA 583
  • Frank Ndahebe v Uganda (Supreme Court Criminal Appeal No. 2 of 1993)
  • AG versus Suzan Klgula and 4L7 others
  • Mbunya Godfrey veraus Uganda
  • State versus Makwanyane [19951 (3) SA 391
  • Oyita Sam v Uganda (Court of Appeal Criminal Appeal No. 307 of 2010)
  • Uwihayimaana Molly v Uganda (Court of Appeal Criminal Appeal No. 103 of 2009)
  • Aharikundira Yustina v Uganda (Supreme Court Criminal Appeal No. 27 of 2015)
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.