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Ssebunya v Uganda (Criminal Appeal 178 of 2019)

Court of Appeal · [2024] UGCA 214 · 2024 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence for murder by the High Court at Entebbe
Decision
Conviction for murder quashed; appellant acquitted and fully discharged unless held on other lawful charges.

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Holding

The Court of Appeal allowed the appeal against a murder conviction founded on circumstantial evidence. The only evidence placing the appellant at the scene was the investigating officer's account of what a watchman (who never testified) had told him; this was inadmissible hearsay under s.59 of the Evidence Act and could not support a conviction. The remaining evidence did not place the appellant at the scene. His alibi, that he had travelled to Masaka, was raised at the earliest opportunity, and the prosecution failed to investigate or rebut it. The prosecution evidence was insufficient to prove that the appellant murdered the deceased. The conviction was quashed and the appellant acquitted and discharged.

Facts

On 11 April 2017, PW2 (Nanteza Margaret) found the deceased, Mubiru Godfrey, harvesting maize in the appellant's garden and reported the theft to the appellant, who remained silent and stayed at home. Later that day the deceased was found dead near the gate of the Serenity Rehabilitation Centre, with bruises to the face and lips and multiple cane marks on the back. A watchman, Mangeni John, told the investigating officer (PW3) that he had seen the appellant caning, beating and kicking the deceased, but Mangeni never testified in court. PW3 telephoned the appellant, who said he had travelled to Masaka and would return after some months; the appellant returned about three months later and was arrested. In his defence the appellant said he had set out for Masaka to attend to other gardens and chose not to pursue the thief. He was convicted of murder and sentenced to 13 years and 3 months' imprisonment.

Issues

  1. Whether the trial Judge properly re-evaluated the evidence and was entitled to convict the appellant on circumstantial evidence.
  2. Whether the investigating officer's testimony of what a non-testifying witness told him about the appellant beating the deceased was admissible or inadmissible hearsay.
  3. Whether the appellant's defence of alibi was properly considered, and whether the prosecution discharged its burden to disprove it.

Orders

  • Appeal allowed on grounds 1, 2 and 3.
  • Conviction for murder quashed.
  • Appellant acquitted of the offence of murder.
  • Appellant fully discharged unless held on other lawful charges.

Key headnotes

Evidence — Hearsay — Oral evidence must be direct — Evidence Act s.59
A witness's account of what a person who does not testify told him, offered to prove the truth of what was asserted, is inadmissible hearsay; a police officer's testimony that a non-testifying eyewitness told him the accused beat the deceased cannot be relied on to establish the accused's participation.
Evidence — Circumstantial evidence — Inculpatory facts must be incompatible with innocence
A conviction may rest on circumstantial evidence only where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt; where the co-existing facts leave room for doubt, the accused must be acquitted.
Criminal Procedure — Defence of alibi — Burden of proof on prosecution
An accused who raises an alibi does not thereby assume the burden of proving it; once an alibi is disclosed at the earliest opportunity, the prosecution bears the duty to investigate and disprove it, and a failure to do so leaves the alibi unrebutted.
Criminal Procedure — First appellate court — Duty to re-evaluate evidence
A first appellate court has a duty to review the whole of the evidence and the materials before the trial judge and to reach its own conclusion, carefully weighing the judgment appealed from rather than disregarding it.
Criminal Procedure — Burden and standard of proof — Conviction on strength of prosecution case
The prosecution bears the burden of proving its case beyond reasonable doubt, and an accused is convicted on the strength of the prosecution case and not on the weakness of the defence.

Legislation cited (4)

  • Evidence Act Cap 8 s.59
  • Evidence Act Cap 8 s.30
  • Penal Code Act s.9
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.30(1)(a)

Cases cited (17)

  • Simon Musoke v R (1958) EA 776
  • Matete Simon v Uganda (Criminal Appeal No. 53 of 2001)
  • Abdu Ngobi v Uganda (Criminal Appeal No. 10 of 1991)
  • Byaruhanga Okot v Uganda (Criminal Appeal No. 78 of 2010)
  • Amisi Dhatemwa alias Waibi v Uganda (Criminal Appeal No. 23 of 1977)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Akol Patrick & Others v Uganda (Criminal Appeal No. 60 of 2002)
  • Woolmington v DPP (1935) AC 462
  • Onyolo Francis v Uganda (Criminal Appeal No. 214 of 2019)
  • Maina wa Kinyatti v Republic (Criminal Appeal No. 60 of 1983) [1984] eKLR
  • Festo Androa Asenua v Uganda (Criminal Appeal No. 1 of 1998)
  • Ntale v Uganda (1968) EA 365
  • Sekitoleko v Uganda (1967) EA 531
  • L. Aniseth v Republic (1963) EA 206
  • R v Chemulon Wero Olango (1937) 4 EACA 46
  • R v Sukha Singh s/o Wazir Singh and others (1939) 6 EACA 145
  • Bitwire v Uganda (1982) HCB 77
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.