Zoleka and 2 Others v Uganda (Criminal Appeal 226 of 2019; Criminal Appeal 227 of 2019)

Court of Appeal · [2024] UGCA 14 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from High Court murder and aggravated robbery convictions and sentences — First and Second Appellants appealing sentence only (convicted on a plea bargain); Third Appellant appealing both conviction and sentence.

Decision

Appeal partly allowed: Third Appellant's murder conviction upheld; all appellants' sentences reduced (First and Second Appellants to 26 years and 9 months each, concurrent; Third Appellant to 24 years and 8 months).

The full judgment

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Holding

On a first appeal from murder and aggravated robbery convictions, the Court of Appeal held that Article 23(8) of the Constitution and the Sentencing Guidelines require deduction of remand time even where sentence flows from a plea bargain; the First and Second Appellants' 30-year sentences were therefore reduced to 26 years and 9 months. The Court upheld the Third Appellant's murder conviction, finding the circumstantial evidence — motive, death threats, call-data linking the appellants, and corroborating confessions — sufficient to exclude any reasonable hypothesis but guilt. Because the trial judge ignored mitigation and remand, however, her 50-year sentence was set aside and substituted with 24 years and 8 months.

Facts

On 10 February 2016 at Mundama Kimbugu village, Hoima District, the deceased, David Kamusiime, was shot and killed and robbed of his Nokia mobile phone. The deceased had earlier sold land to the Third Appellant's husband, who paid only part of the price; the unpaid balance was the subject of a civil suit and a source of enmity. After her husband died, the Third Appellant believed the deceased had bewitched him and issued death threats against the deceased. After the killing, the First Appellant used the deceased's missing phone to mock the deceased's relatives, enabling police to trace calls. Call-data records and GPS tracking linked the First and Second Appellants to each other and to the Third Appellant before, during and after the murder. The First and Second Appellants gave charge and caution statements admitting they were hired by the Third Appellant to kill the deceased, and later pleaded guilty. The Third Appellant denied involvement.

Issues

Whether the trial judge erred in failing to take into account and deduct the period spent on remand when sentencing the First and Second Appellants under their plea bargain agreements.
Whether the circumstantial evidence reliably established the Third Appellant's participation in the murder.
Whether the trial judge erred in admitting the First Appellant's charge and caution statement, alleged to have been procured through torture and by the investigating officer.
Whether the 50-year sentence imposed on the Third Appellant was illegal, manifestly harsh and excessive for failure to consider mitigating factors and the period spent on remand.

Orders

Appeal partially succeeds.
The First and Second Appellants' sentences are quashed and substituted with sentences of 26 years and 9 months on each count, to run concurrently.
The Third Appellant's conviction is upheld.
The Third Appellant's sentence of 50 years' imprisonment is substituted with a sentence of 24 years and 8 months, to run from the date of conviction.

Key headnotes

Sentencing — Period Spent on Remand — Constitutional Duty to Deduct Under Article 23(8)

Article 23(8) of the Constitution and paragraph 15(2) of the Sentencing Guidelines impose a mandatory duty to deduct the period spent on remand from the sentence considered appropriate, and this requirement applies even where the sentence is arrived at by a plea bargain agreement; a sentence that fails to credit remand time is illegal and liable to be set aside.

Circumstantial Evidence — Conditions for Conviction

Where a prosecution case rests wholly on circumstantial evidence, the court must, before convicting, be satisfied that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than guilt, and that there are no co-existing circumstances that would weaken or destroy the inference of guilt.

Confessions — Repudiated Confession — Trial Within a Trial — Burden of Proof

Where an accused objects that a confession was not made voluntarily, the court must hold a trial within a trial, in which the onus lies on the prosecution to prove that the confession was not caused by violence, force, threat, inducement or promise calculated to produce an untrue confession; the burden does not lie on the accused.

Participation in Offence — Common Intention and Aiding and Abetting

Under section 19 of the Penal Code Act a person who aids and abets the commission of an offence is deemed to have participated in its commission; accordingly, one who masterminds and hires others to carry out a murder is criminally liable as a participant on the doctrine of common intention.

Sentencing — Appellate Interference with Sentencing Discretion

An appellate court will not interfere with the sentencing discretion of a trial court unless the sentence is illegal, is so manifestly excessive as to amount to an injustice, is wrong in principle, or the trial court overlooked a material consideration; failure to consider mitigating factors or to deduct remand time justifies appellate re-sentencing.

Legislation cited (11)

Penal Code Act, Cap. 120 s.188
Penal Code Act, Cap. 120 s.189
Penal Code Act, Cap. 120 s.285
Penal Code Act, Cap. 120 s.286(2)
Penal Code Act, Cap. 120 s.19
Constitution of Uganda Article 23(8)
Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 para.15(2)
Evidence Act, Cap. 6 s.23
Evidence Act, Cap. 6 s.24
Evidence Act, Cap. 6 s.27
Judicature (Court of Appeal Rules) Directions, S.I. 13-10 r.30(1)(a)

Cases cited (32)

Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
Twesigye Fred v Uganda (Criminal Appeal No. 43 of 2016)
Ogalo s/o Owoura v R (1954) 21 EACA 270
Moses Rwabugande v Uganda [2017] UGSC
Byaruhanga Fodori v Uganda [2004] UGSC 24
Tindigwihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
Walugembe v Uganda [2005] UGSC 22
Rashid v Republic (1969) EA 134
Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
Akbar Hussein Godi vs Uganda (2015) UGSC
Manige v Uganda [2022] UGCA 9
Tumwesigye Anthony v Uganda [2014] UGCA 61
Atiku v Uganda [2016] UGCA 20
Lulu Festo v Uganda [2016] UGCA 15
Uganda v George William Ssimbwa (Criminal Appeal No. 37 of 1995)
Kyambadde v Uganda [2017] UGSC 32
Festo Androa Asenua v Uganda [1998] UGSC 23
Bahemuka William & Another v Uganda [2010] UGCA 51
Bidong Zenone & Others v Uganda [2023] UGCA 113
Ssemaganda Sperito & Another v Uganda [2023] UGCA 200
Oolot Justine & Another v Uganda [2019] UGSC 4
Tigo Stephen v Uganda [2011] UGSC 7
Kaddu Kavulu Lawrence v Uganda [2019] UGSC 19
Baguma Fred v Uganda (Criminal Appeal No. 7 of 2004)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Sula Tumusiime & Others v Uganda (Criminal Appeal No. 205 & 433 of 2015)
Kariisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
Wamutabanewe Jamiru v Uganda [2018] UGSC 8
Kamya Johnson Wavamunno v Uganda (Criminal Appeal No. 16 of 2000)
Aharikundira Yustina v Uganda [2018] UGSC 49
Ndyomugyenyi v Uganda [2018] UGSC 20
Mogagi Godfrey v Uganda [2017] UGSC 36

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.