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Ouma & 2 Others v Uganda (Criminal Appeal 123 of 2022; Criminal Appeal 126 of 2022; Criminal Appeal 128 of 2022)

Court of Appeal · [2024] UGCA 207 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence from the High Court at Gulu
Decision
Appeal partly allowed: conviction for attempted murder quashed; aggravated-robbery conviction upheld but the sentence reduced to 20 years' imprisonment (14 years 11 months and a few days after deducting remand) for the 2nd and 3rd appellants; compensation order maintained. The 1st appellant's appeal abated on his death in prison.

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Holding

On appeal against conviction and sentence for aggravated robbery, attempted murder and assault, the Court of Appeal struck out a ground that specified no error under rule 66(2) and rejected the alibi challenge, holding the appellants had been positively identified by neighbours in daylight. Applying the Blockburger test, the court held that convicting and sentencing for attempted murder on the very facts that constituted the aggravated robbery offended the double-jeopardy bar in Article 28(9) of the Constitution, and quashed the attempted-murder conviction. Reviewing comparable precedents, it found the aggravated-robbery sentence (about 25 years) manifestly excessive and reduced it to 20 years' imprisonment, less time on remand. The compensation order was maintained.

Facts

On 26 January 2017 at Paomo Village, Amuru District, Ocira Richard, his mother Auma Lucy and his sister were attacked at home by a group that included the appellants. The assailants robbed Ocira of a panga and hoe worth UGX 18,000 and cut him on the head with a panga, causing grievous harm (a cut wound about 6cm, mental disorder and concussion). They also robbed Auma Lucy of beans, sorghum, a hen and hoes, cut her hand when she deflected a panga blow, and kicked her at the waist, occasioning actual bodily harm. The appellants were neighbours long known to the victims, who identified them in broad daylight. They were arrested and indicted on two counts of aggravated robbery, one count of attempted murder and one count of assault occasioning actual bodily harm; they pleaded not guilty and raised alibis without notifying the prosecution at the earliest opportunity. The High Court convicted and sentenced them. The first appellant, Ouma Cota, died in prison and his appeal abated, so the court considered only the 2nd and 3rd appellants.

Issues

  1. Whether ground 2 of the appeal complied with rule 66(2) of the Court of Appeal Rules and was a competent ground.
  2. Whether the trial Judge erred in finding that the appellants' defence of alibi had been disproved and that they were positively identified at the scene of the crime.
  3. Whether convicting and sentencing the appellants for both aggravated robbery and attempted murder (and assault) arising from the same facts offended the constitutional prohibition against double jeopardy.
  4. Whether the sentences imposed for aggravated robbery were harsh and excessive.

Orders

  • Ground 2 (originally ground 3 in the memorandum) struck out for offending rule 66(2) of the Court of Appeal Rules.
  • Ground 1 dismissed; the trial Judge's finding that the appellants were placed at the scene was upheld.
  • Conviction for attempted murder quashed and the sentence imposed for it set aside.
  • Sentence for aggravated robbery set aside as harsh and excessive.
  • 2nd appellant (Okok Denis alias Larach) sentenced to 14 years, 11 months and 26 days' imprisonment for aggravated robbery; 3rd appellant (Oneka David) sentenced to 14 years, 11 months and 4 days' imprisonment.
  • Order for compensation of UGX 18,000 to Ocira Richard maintained.
  • Sentences to run from 22 July 2022.

Key headnotes

Criminal Procedure — Grounds of Appeal — Rule 66(2) — Striking Out an Incompetent Ground
A memorandum of appeal must concisely specify the points of law or fact alleged to have been wrongly decided; a ground that merely requires the appellate court to re-appraise the whole of the evidence without identifying any particular error of the trial Judge offends the mandatory requirement of rule 66(2) of the Court of Appeal Rules and is liable to be struck out, and Article 126(2)(e) of the Constitution cannot cure such non-compliance.
Evidence — Defence of Alibi — Burden of Proof and Placing the Accused at the Scene
An accused who relies on an alibi should disclose it at the earliest opportunity, and the prosecution bears the burden of disproving it by adducing evidence that squarely places the accused at the scene of the crime; where credible eyewitnesses who knew the accused identify them in conditions favourable to correct identification, an alibi raised late and unsupported by witnesses is properly rejected.
Constitutional Law — Double Jeopardy — Article 28(9) — Multiple Offences Constituted by the Same Facts
The constitutional protection against double jeopardy in Article 28(9) extends not only to a fresh trial on the same facts but also to convicting and sentencing an accused, in the same trial, for distinct offences constituted by the same facts; applying the Blockburger test, where one offence is entirely subsumed by another on the same facts the two are treated as the same offence, and the subsumed conviction cannot stand.
Criminal Procedure — Indictment — Charging Lesser Offences in the Alternative
Where the facts that constitute aggravated robbery also establish attempted murder, the prosecution ought to frame the attempted-murder count in the alternative rather than as a separate substantive charge to be tried on the same evidence; proceeding on both as substantive counts is oppressive and an embarrassment to the defence, and a conviction so obtained will be quashed.
Criminal Law — Sentencing — Appellate Interference, Manifestly Excessive Sentence and Consistency
An appellate court will interfere with a sentence only where it is illegal, wrong in principle, manifestly excessive or so low as to amount to an injustice, or where the trial court ignored a material consideration; consistency with sentences in comparable cases is a vital sentencing principle, and on a review of precedent a sentence of about 25 years' imprisonment for aggravated robbery of property worth UGX 18,000 (though accompanied by grievous harm) was manifestly excessive and was reduced to 20 years.

Legislation cited (15)

  • Penal Code Act s.285
  • Penal Code Act s.286
  • Penal Code Act s.204
  • Penal Code Act s.236
  • Penal Code Act s.20
  • Penal Code Act s.191
  • Penal Code Act s.390
  • Judicature (Court of Appeal Rules) Directions rule 66(2)
  • Judicature (Court of Appeal Rules) Directions rule 30(1)
  • Judicature (Court of Appeal Rules) Directions rule 2(2)
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 28(9)
  • Constitution of Uganda Article 126(2)(e)
  • Judicature Act s.11
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 para.31

Cases cited (31)

  • Turyahabwe Ezra & 5 Others v Uganda (Criminal Appeal No. 156 of 2010)
  • Mutebi Ismah & Kiwanuka Mubiru v Uganda (Criminal Appeals No. 080 and 089 of 2021)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (SCCA No. 2 of 1997)
  • Bogere Moses & Another v Uganda (SCCA No. 1 of 1997)
  • Re: Christine Namatovu Tebajukira [1992-1993] HCB
  • Ssekitoleko v Uganda [1967] EA 531
  • Woolmington v DPP [1935] AC 462
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Thomas Nkurungira alias Tom v Uganda (Criminal Appeal No. 168 of 2011)
  • Obwalatum Francis v Uganda (SCCA No. 30 of 2015)
  • R v Chemulon Wero Olango (1937) 4 EACA 46
  • Festo Adoroa Asenua v Uganda [1998] UGSC 23
  • R v Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 45
  • Opio & 3 Others v Uganda (Criminal Appeal No. 291 of 2021) [2023] UGCA 144
  • Blockburger v United States, 284 U.S. 299 (1932)
  • Serunkuma Edirisa v Uganda & 5 Others (Criminal Appeal No. 147 of 2016)
  • Patrick Sentongo v Uganda (Criminal Appeal No. 37 of 2017) [2021] UGCA 113
  • Mugasha Joseph v Uganda (SCCA No. 10 of 2010)
  • Bikanga Samuel v Uganda (Criminal Appeal No. 38 of 2000)
  • Kiiza Alex v Uganda (Criminal Appeal No. 177 of 2013)
  • Kiwalabye Bernard v Uganda (SCCA No. 143 of 2001)
  • Guloba Rogers v Uganda (Criminal Appeal No. 57 of 2013)
  • Abasa Johnson & Anor v Uganda (Criminal Appeal No. 33 of 2010)
  • Ojongole Peter v Uganda (Criminal Appeal No. 34 of 2017)
  • Livingstone Kakooza v Uganda (SCCA No. 17 of 1993)
  • Aharikundira Yustina v Uganda [2018] UGSC 49
  • Rutabingwa James v Uganda (Criminal Appeal No. 57 of 2011) [2014] UGCA 79
  • Ssenkungu Akim v Uganda (Criminal Appeal No. 264 of 2015) [2022] UGCA 192
  • Lule Akim v Uganda (Criminal Appeal No. 274 of 2015) [2022] UGCA 28
  • Ntambi Robert v Uganda (Criminal Appeal No. 334 of 2019) [2022] UGCA 264
  • Avuni Tipas Mike v Uganda (Criminal Appeal No. 403 of 2016) [2023] UGCA 241
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.