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Asama & Another v Uganda (Criminal Appeal 86 of 2010)

Court of Appeal · [2024] UGCA 120 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Conviction upheld; sentence set aside as illegal and appellants re-sentenced to 19 years' imprisonment each.

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Holding

The Court of Appeal dismissed the appeal against conviction, holding that the circumstantial evidence — previous threats to kill the deceased, the appellants' attempt to bribe a witness to prevent a post-mortem, and corroborating eyewitness testimony — formed an irresistible chain pointing to the appellants' guilt and was incompatible with any reasonable hypothesis other than guilt. While the 28-year sentence was neither harsh nor excessive, the trial Judge's failure to account for the period spent on remand, contrary to article 23(8) of the Constitution, rendered the sentence illegal. Exercising its powers under section 11 of the Judicature Act, the Court sentenced the appellants afresh to 20 years, less time on remand, yielding 19 years' imprisonment.

Facts

The deceased, an 80-year-old man with no biological children, sold his land to PW2 three days before he was found dead in his house, his body soaked in blood with injuries to the neck and a broken clavicle. The two appellants, relatives who had expected to inherit the land, were unhappy with the sale. Before the death, the appellants confronted PW2 demanding he retrieve his money, with the first appellant saying "we shall break his neck" and the second saying "even me alone can finish that old man." After the body was discovered, the appellants approached PW2 at 3:00am, apologised for killing the deceased, urged him not to permit a post-mortem, and offered him Shs. 1,500,000 as a bribe, which he rejected. The post-mortem confirmed death by a fractured clavicle and assault. The appellants raised alibis claiming they were away at the relevant time. They were convicted of murder and sentenced to 28 years' imprisonment each.

Issues

  1. Whether the trial Judge erred in relying on circumstantial evidence to convict the appellants of murder.
  2. Whether the sentence of 28 years' imprisonment was manifestly harsh and excessive.
  3. Whether the trial court's failure to take into account the period spent on remand rendered the sentence illegal, requiring the appellants to be sentenced afresh.

Orders

  • Appeal against conviction dismissed.
  • Conviction for murder upheld.
  • Sentence of 28 years' imprisonment set aside as illegal for failure to apply article 23(8) of the Constitution.
  • Each appellant sentenced afresh to 19 years' imprisonment, commencing from 25th May 2010, the date of conviction.

Key headnotes

Criminal Evidence — Circumstantial Evidence — Test for Conviction
Where a prosecution case depends solely on circumstantial evidence, the court must, before convicting, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt, and be sure there are no co-existing circumstances that weaken or destroy the inference of guilt.
Criminal Evidence — Circumstantial Evidence — Caution Required
Circumstantial evidence must be treated with caution and narrowly examined because it can easily be fabricated, and an inference of guilt may only be drawn after ensuring no other co-existing circumstances weaken or destroy that inference.
Criminal Evidence — Previous Threats and Subsequent Conduct as Corroboration
Evidence of previous threats to kill, whether spoken bitterly or impulsively in anger, is relevant to malice and corroborates intention, and an accused's conduct after a death — such as attempting to bribe a witness to prevent a post-mortem — is circumstantial evidence inconsistent with innocence.
Sentencing — Appellate Interference with Trial Court's Discretion
An appropriate sentence is a matter for the discretion of the sentencing judge, and an appellate court will not normally interfere unless the sentence is illegal or is manifestly so excessive as to amount to an injustice.
Sentencing — Article 23(8) of the Constitution — Failure to Account for Remand Renders Sentence Illegal
A trial court's failure to take into account the period an accused has spent on remand, as required by article 23(8) of the Constitution, renders the sentence illegal and entitles the appellate court to sentence the accused afresh under section 11 of the Judicature Act.

Legislation cited (5)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Judicature Act s.11
  • Constitution of Uganda art.23(8)
  • Court of Appeal Rules r.30(1)(a)

Cases cited (22)

  • Opolot v Uganda (Criminal Appeal No. 151 of 2018)
  • Mulolo v Uganda (Criminal Appeal No. 504 of 2017)
  • Waihi & Another v Uganda [1968] EA 27
  • Kifamunte Henry v Uganda (supra)
  • Remigious Kiwanuka v Uganda (Supreme Court Criminal Appeal No. 4 of 1995)
  • John Muchin alias Kasile v Uganda (Supreme Court Criminal Appeal No. 3 of 1993)
  • Kitegana Stephen v Uganda (Supreme Court Criminal Appeal No. 53 of 2000)
  • Wamutabaniwe Jamiru v Uganda (Supreme Court Criminal Appeal No. 74 of 2007)
  • Kyalimpa Edward v Uganda (Supreme Court Criminal Appeal No. 10 of 1995)
  • Karisa Moses v Uganda (Supreme Court Criminal Appeal No. 23 of 2016)
  • Bashasha Sharif v Uganda (Supreme Court Criminal Appeal No. 82 of 2018)
  • Father Narsensio Begumisa and 3 Others v Eric Tibebaga (Supreme Court Civil Appeal No. 170 of 2000)
  • Iwutung Stephen v Uganda (Criminal Appeal No. 0020 of 2016)
  • Simoni Musoke v R [1958] 1 EA 715
  • R v Hodge (1838) 2 Lewin 227
  • Teper v R [1952] AC 480
  • Byaruhanga Fodori v Uganda [2004] UGSC 24
  • Tindigwihura Mbahe v Uganda (Supreme Court Criminal Appeal No. 9 of 1987)
  • Ogalo s/o Owoura v R (1954) 21 EACA 270
  • R v Mohamedali Jamal (1948) 15 EACA 126
  • Aharikundira Yusitina v Uganda (Supreme Court Criminal Appeal No. 27 of 2015)
  • Rwabugande v Uganda
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.