Wakilii

Mafubira alias Goloba v Uganda (Criminal Appeal 366 of 2017; Criminal Appeal 397 of 2017)

Court of Appeal · [2024] UGCA 193 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First criminal appeal from High Court conviction and sentence for murder
Decision
Conviction upheld; appeal partly allowed and sentence reduced to 25 years, five months and seven days running from 26 September 2017 after deduction of the pre-trial remand period.

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Holding

On a first appeal against a murder conviction, the Court of Appeal held that the appellant's participation was proved beyond reasonable doubt through the doctrine of common intention under section 20 of the Penal Code Act; the failure to charge a co-perpetrator did not exculpate him, and minor contradictions in prosecution evidence were properly ignored. Ground one was dismissed. On sentence, the Court held that a 30-year term is lawful and not barred by Sundya Muhamudu or Tigo, since the 20-year remission controversy concerns enforcement, not judicial sentencing power. However, the trial judge erred in not deducting the pre-trial remand of four years, six months and 23 days. The appeal was partly allowed and the sentence adjusted accordingly.

Facts

The appellant worked at premises with a swimming pool at Circular Road, Jinja, and routinely had dinner at the home of the deceased's mother, where he also slashed grass. On 4 March 2013 the deceased, a child who could not swim, and her siblings followed the appellant to fetch water at the premises. The appellant admitted leaving the children outside while he went to fetch a pipe to water plants, and on his return found that one child had fallen into the water. The child drowned; the post-mortem report gave the cause of death as drowning. An eye-witness, the deceased's sister (Pw2), testified that a man named Ssekito tied the deceased's mouth while another man strangled her, after which Ssekito threw her into the pool and drove off, the appellant having held the witness's mouth. Ssekito was never charged. The appellant was indicted for murder and convicted in the High Court.

Issues

  1. Whether the trial judge failed to properly evaluate the evidence relating to the appellant's participation in the offence.
  2. Whether the sentence of 30 years' imprisonment was illegal or unconstitutional.
  3. Whether the trial judge erred in failing to deduct the pre-trial remand period from the sentence.

Orders

  • Ground one of the appeal dismissed.
  • Conviction for murder upheld.
  • Sentence of 30 years' imprisonment held appropriate but reduced by the pre-trial remand period of four years, six months and 23 days.
  • Appellant to serve 25 years, five months and seven days from 26 September 2017, the date of conviction.
  • Appeal partially allowed.

Key headnotes

Criminal Law — Common Intention — Liability under s.20 Penal Code Act
Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, an accused's presence, actions or omissions at the scene may impute a common purpose, rendering each liable for an offence committed as a probable consequence of that purpose.
Criminal Law — Participation — Failure to charge a co-perpetrator
The failure of the police to charge a co-perpetrator does not render the accused's own participation in the offence exculpatory.
Evidence — Contradictions and Inconsistencies — Material versus minor
Major contradictions and inconsistencies in prosecution evidence will usually result in the rejection of the witness's evidence unless satisfactorily explained, while minor ones will be ignored unless they point to deliberate untruthfulness.
Criminal Procedure — First Appeal — Duty to re-evaluate evidence
On a first appeal the appellate court must review the evidence and reconsider the materials before the trial judge, making its own inferences of law and fact, while not disregarding but carefully weighing the judgment appealed from.
Sentencing — Appellate interference with discretion
An appellate court will not interfere with a sentencing court's exercise of discretion unless there has been a failure to exercise discretion, a failure to take into account a material consideration, or an error in principle; it is not enough that the appellate judges would have exercised the discretion differently.
Sentencing — Constitutionality of sentences exceeding 20 years
A judicial officer may lawfully pass a sentence above 20 years where the circumstances demand it; the controversy over defining life imprisonment as 20 years for remission purposes concerns the executive's enforcement power, not the court's judicial sentencing discretion, and Sundya Muhamudu does not supersede binding Supreme Court decisions.
Sentencing — Deduction of pre-trial remand period
A trial court is required to take into account and deduct the period spent on pre-trial remand from the sentence imposed; a failure to do so is an error that an appellate court will correct.

Legislation cited (8)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.20
  • Evidence Act s.59
  • Constitution of Uganda Article 28(8)
  • Constitution of Uganda Article 28(12)
  • Constitution of Uganda Article 23(8)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 30(1)(a)

Cases cited (13)

  • Bulira and Another v Uganda (Criminal Appeal No. 67 of 2015)
  • Sundya Muhamudu and 568 Others v Attorney General [2022] UGCC 7
  • Tigo Steven v Uganda [2011] UGSC 7
  • Rwabugande Moses v Uganda [2014] UGSC 8
  • Kisegeruta and Another v Uganda [1978] UGCA 6
  • Nanyonjo Harriet and Another v Uganda [2007] UGSC 70
  • Kato John Kyambadde and Another v Uganda [2014] UGSC 32
  • Anguyo Silva v Uganda [2021] UGCA 3
  • Ssekitoleko Yudah and Others v Uganda (Criminal Appeal No. 33 of 2014)
  • [2018] UGSC 6
  • Kamya Johnson v Uganda (Criminal Appeal No. 16 of 2000)
  • Balanda v Uganda [2024] UGCA 177
  • 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.