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Kyagera & 2 Others v Uganda (Criminal Appeal 716 of 2015)

Court of Appeal · [2024] UGCA 267 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder and aggravated robbery
Decision
Appeal dismissed; convictions and 30-year sentences on each count upheld; appellants to continue serving the sentences imposed by the trial court.

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Holding

The Court of Appeal dismissed the appeal of three men convicted of murder and aggravated robbery. Alleged inconsistencies between the eyewitnesses' testimony and their police statements could not be relied on where counsel failed to put the prior statements to the witnesses under s.144 of the Evidence Act. The identification was strong recognition evidence: the witnesses had known the appellants for years and observed them for about 30 minutes at close range by tadooba and moonlight, so the trial judge adequately cautioned himself. PW3's account of the stolen bags was direct, not hearsay. As the sentences predated Rwabugande, the judge's statement that he took remand into account complied with Article 23(8). Convictions and 30-year sentences upheld.

Facts

On 16 May 2011 at night, at Kabubwa Village, Kibaale District, the three appellants and another man removed the door of the deceased Tindyebwa Moses's house, dragged him from his bed and cut him repeatedly with a panga, demanding money paid for an Airtel mast installed on the family land. The deceased's wife (PW2) and mother (PW3) witnessed the attack by the light of a lit tadooba placed on the wall and by moonlight. The assailants demanded money at the mother's house, assaulted her with a club, and took a bag of clothes and UGX 7,200,000, plus a further bag from the deceased's house. The deceased was taken to hospital but died on the way from anaemia caused by extensive cuts. Both witnesses knew the appellants as village mates for between three and ten years and described observing them at close range, at one point about one metre away. The appellants and a fourth man were tried; the appellants were convicted while the fourth, identified only by the deceased's dying declaration, was acquitted. Each appellant raised an alibi and called witnesses.

Issues

  1. Whether the trial judge erred in relying on the evidence of PW2 and PW3 despite alleged contradictions and inconsistencies with their police statements.
  2. Whether the appellants were properly identified given the allegedly unfavourable identifying conditions at the scene.
  3. Whether the trial judge erred in relying on the hearsay evidence of PW3 to convict the appellants of aggravated robbery in count three.
  4. Whether the trial judge erred in rejecting the appellants' defences of alibi without evaluating them against the prosecution evidence.
  5. Whether the sentences of 30 years' imprisonment were illegal, harsh and excessive for failure to deduct the period spent on remand.

Orders

  • The appeal against conviction and sentence is dismissed.
  • The convictions and sentences of 30 years' imprisonment on each of the three counts, to run concurrently, are upheld.
  • The appellants shall continue to serve the sentences imposed by the trial court.

Key headnotes

Evidence — Witnesses — Cross-examination on previous statements in writing — Section 144 Evidence Act
A previous written statement of a witness cannot be used to contradict that witness unless, before the statement is proved, the witness's attention is drawn to the parts intended to be used for contradiction; where counsel fails to do so, the alleged inconsistencies cannot be relied upon to impeach the witness.
Evidence — Identification — Difficult conditions — Need for caution
Where a conviction depends wholly or substantially on the correctness of a disputed identification, the court must warn itself of the special need for caution before convicting; the judge need not use the word 'caution', it being sufficient that the judge adverts to the need for care to exclude the possibility of mistaken identity.
Evidence — Identification — Recognition of known persons — Quality of identification
Where identification is by recognition of persons the witnesses already knew, made over a substantial period and at close range in adequate light, the quality of identification is good and the court may safely convict even without other supporting evidence, provided it adequately warns itself of the special need for caution.
Evidence — Hearsay — Direct oral evidence — Section 56 Evidence Act
Testimony of a witness about facts she personally observed is direct evidence and not hearsay; an eyewitness account of assailants carrying away stolen property that the witness saw is admissible as direct evidence under section 56 of the Evidence Act.
Criminal Procedure — Defence of alibi — Burden of proof
An accused who raises an alibi has no duty to prove it; the prosecution bears the burden of disproving it by adducing evidence placing the accused at the scene of the crime at the material time, and the court must evaluate the prosecution and defence versions together rather than rejecting the alibi merely because it accepts the prosecution evidence.
Criminal Procedure — Sentencing — Remand period — Article 23(8) Constitution — Non-retrospectivity of Rwabugande
The requirement in Rwabugande v Uganda that the period spent on remand be arithmetically deducted from sentence is not retrospective; a sentence imposed before that decision is lawful where the sentencing judge complied with the then-prevailing law by stating, in the format approved in Kabwiso Issa v Uganda, that the remand period was taken into account.
Criminal Procedure — Sentencing — Appellate interference with sentence
An appellate court will not interfere with a sentence imposed in the exercise of the trial court's discretion unless the sentence is illegal, the trial judge failed to consider a material factor, or the sentence is manifestly excessive or so low as to amount to an injustice.

Legislation cited (11)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Evidence Act s.56
  • Evidence Act s.59
  • Evidence Act s.144
  • Constitution of Uganda Article 23(8)
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) (Directions) SI 13-10 rule 30(1)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 Guideline 15

Cases cited (38)

  • Woolmington v DPP [1935] UKHL 1
  • Miller v Minister of Pensions [1942] 2 All ER 372
  • Candiga Swadick v Uganda (Criminal Appeal No. 23 of 2021)
  • Chemonges Fred v Uganda (Criminal Appeal No. 138 of 1999)
  • Abudala Nabulere & Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Bogere Moses & Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Bogere Moses v Uganda [1998] UGSC 22
  • Abdalla Bin Wendo & Another v R (1953) 20 EACA 166
  • Roria v R [1964] EA 583
  • Badru Mwidu v Uganda (Criminal Appeal No. 15 of 1997)
  • Walakira Abas & Others v Uganda (Criminal Appeal No. 25 of 2002)
  • Sulaiman Katushabe v Uganda (Criminal Appeal No. 7 of 1991)
  • Ssekitoleko v Uganda [1967] EA 531
  • Jamada Nzabaikukize v Uganda (Criminal Appeal No. 1 of 2015)
  • Mibulo Edward v Uganda (Criminal Appeal No. 17 of 1995)
  • R v Chemulon Wero Olango (1937) 4 EACA 46
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No. 3 of 2006)
  • Kajooba Vesencia v Uganda (Criminal Appeal No. 118 of 2014)
  • Ogalo s/o Owoura v R (1954) 21 EACA 270
  • Ojok Christopher & Another v Uganda (Criminal Appeal No. 183 of 2013)
  • Onyango Bosco v Uganda (Criminal Appeal No. 137 of 2014)
  • Mayinja Peter & 7 Others v Uganda (Criminal Appeal No. 278 of 2017)
  • Kiwalabye Benard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Bakubuye Muzamiru & Another v Uganda (Criminal Appeal No. 56 of 2015)
  • Sebuliba Siraje v Uganda (Criminal Appeal No. 575 of 2005)
  • Budebo Kasto v Uganda (Criminal Appeal No. 94 of 2009)
  • Tubeine Robert alias Lecturer v Uganda (Criminal Appeal No. 104 of 2021)
  • Twongyeire John v Uganda (Criminal Appeal No. 201 of 2013)
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
  • Kabuye Senvewo v Uganda (Criminal Appeal No. 2 of 2002)
  • Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Kabwiso Issa v Uganda (Criminal Appeal No. 7 of 2002)
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.