Wakilii

Twinomugisha & Another v Uganda (Criminal Appeal 83 of 2012)

Court of Appeal · [2024] UGCA 318 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and death sentences for murder
Decision
Conviction of the 2nd appellant upheld; death sentences against both appellants set aside and substituted with 37 years' imprisonment each (35 years to serve after deduction of remand time).

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court held that the 2nd appellant's murder conviction did not rest solely on PW1's evidence but on a total evaluation including the last seen doctrine, the appellants' post-crime flight, and the 1st appellant's charge and caution statement, which was sufficiently corroborated; the conviction was upheld. On sentence, the Court held that the trial judge failed to weigh all mitigating factors and to consider whether an alternative custodial sentence would be inadequate before imposing death. It set aside both death sentences and, exercising its power under section 11 of the Judicature Act, substituted 37 years' imprisonment each, with 35 years to serve after deducting time spent on remand.

Facts

Both appellants worked for Simon Haba as shamba boy and herdsman at Kagango, Ibanda District. On 24 September 2009, PW1 (Peninah Asiimwe), wife of the 1st appellant and mother of the deceased Baguma Nicholas, a boy of about one and a half years, left the child with the 1st appellant while she fetched water. On her return the child was missing; the 1st appellant claimed he was asleep, but he was not found. A search was mounted and both appellants disappeared. The 1st appellant was found playing cards at Kafunzo trading centre and refused to help search. The deceased's headless body was found buried in a shallow grave in the master's banana plantation; the head was never recovered, and a blood-stained panga and hoe were recovered nearby. The 1st appellant gave a charge and caution statement describing a plan to kill the child for four million shillings as a ritual murder, implicating the 2nd appellant. Both appellants set up alibis which the trial court found false and contradictory.

Issues

  1. Whether the evidence of PW1 implicated the 2nd appellant as a participant in the murder.
  2. Whether the trial judge erred in relying on the 1st appellant's confession to convict the 2nd appellant in the absence of corroborating evidence, and in the weight attached to that confession.
  3. Whether the trial judge correctly applied the test for the discretionary imposition of the death penalty.
  4. Whether the death sentences were manifestly excessive given the failure to weigh mitigating factors and the different roles of each appellant.

Orders

  • Appeal against the conviction of the 2nd appellant dismissed; conviction upheld.
  • Appeal against sentence allowed; the death sentences against both appellants set aside.
  • Each appellant sentenced to 37 years' imprisonment.
  • Two years spent on remand deducted; each appellant to serve 35 years' imprisonment from 21 March 2012, the date of conviction.

Key headnotes

Evidence — Circumstantial Evidence — Last Seen Doctrine
The last seen doctrine creates a rebuttable presumption that the person last seen with a deceased bears full responsibility for the death; where the accused fails to rebut that presumption, it supports a finding of participation in the killing.
Evidence — Confession of Co-Accused — Requirement of Corroboration
A confession by one accused implicating a co-accused cannot, on its own, found a conviction of that co-accused; under section 27 of the Evidence Act it may only be used to supplement substantial independent evidence against the co-accused, being a weak form of evidence untested by cross-examination.
Criminal Law & Procedure — Sentencing — Death Penalty — Discretionary Test
The death penalty may be imposed only in the rarest and gravest cases of extreme culpability where reform is impossible and where an alternative custodial sentence would be demonstrably inadequate; the sentencing court must weigh all mitigating factors against the aggravating factors before passing it.
Criminal Law & Procedure — 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 sufficient that the appellate court would have exercised the discretion differently.
Evidence — Alibi — False Alibi and Post-Crime Conduct as Corroboration
A false or contradictory alibi, together with an accused's flight and failure to participate in searching for the victim, may constitute corroborative circumstantial evidence inconsistent with innocence.

Legislation cited (10)

  • Penal Code Act Cap 120 s.188
  • Penal Code Act Cap 120 s.189
  • Evidence Act s.27
  • Evidence Act s.28
  • Judicature Act s.11
  • Judicature (Court of Appeal) Rules r.30(1)(a)
  • Law Reform (Penalties in Criminal Matters) Miscellaneous (Amendment) Act 2019 s.5
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Guideline 17
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 regulation 18
  • Constitution of Uganda Article 23(8)

Cases cited (30)

  • Attorney General v Kigula & 417 Others [2009] UGSC 6
  • Mbunga Godfrey v Uganda (Criminal Appeal No. 4 of 2017)
  • Kakubi v Uganda [2009] UGCA 56
  • LDU Kyarikunda v Uganda [2016] UGCA 70
  • Aharikundira v Uganda [2018] UGSC 49
  • Nalongo Naziwa v Uganda (Criminal Appeal No. 35 of 2014)
  • Kakubi Paul & Anor v Uganda (Criminal Appeal No. 126 of 2008)
  • Ntulu Ashman Kibuuka v Uganda (Criminal Appeal No. 23 of 2000)
  • R Vs. Keishaimuza Tindikawa [1940] EACA 67
  • Mugisha Vs. Uganda UGCA 149
  • R v Baskerville [1916] 2 KB 658
  • Aramanthan Hassan & Anor v Uganda [2020] UGCA 133
  • Oryem Richard & Anor v Uganda [2003] UGSC 30
  • Kabatera Steven v Uganda (Criminal Appeal No. 123 of 2001)
  • Hussein Akbar v Uganda (Criminal Appeal No. 3 of 2013)
  • Simon Musoke v R (1958) EA 715
  • Festo Asenua v Uganda [1998] UGSC 23
  • Mugerwa v Uganda [2023] UGCA 183
  • Jagenda v Uganda (Criminal Appeal No. 1 of 2017) [2022] UGCA 25
  • Byaruhanga Okot v Uganda (Criminal Appeal No. 78 of 2010)
  • Bidong & 2 Others v Uganda [2023] UGCA 113
  • Mugabe v Uganda [2014] UGCA 66
  • Bahemuka William & Anor v Uganda [2010] UGCA 51
  • Bogere Moses v Uganda [1998] UGSC 22
  • Bogere Moses & Anor v Uganda (Criminal Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda [1998] UGSC 20
  • Kamya Johnson v Uganda (Criminal Appeal No. 16 of 2000)
  • George Wilson Ssimbuta v Uganda (Criminal Appeal No. 37 of 1995)
  • Ssekapoga Blasco v Uganda [2018] UGSC 6
  • Rwalinda John v Uganda [2014] UGSC 38
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.