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Ssemakula Saidi v Uganda (Criminal Appeal 378 of 2019)

Court of Appeal · [2024] UGCA 33 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for rape
Decision
Conviction for rape upheld; sentence set aside as illegal and substituted with 11 years and 1 month (13 years less remand) running from the date of conviction.

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Holding

The Court upheld the conviction for rape, holding that voice identification was sufficient where the victim was familiar with the appellant, a neighbour whose voice she knew, applying Sabwe Abdu v Uganda. On sentence, the Court held the 20-year term illegal because the trial Judge failed to deduct the period spent on remand as required by Article 23(8) of the Constitution and Rwabugande Moses v Uganda. The Court set aside the sentence, invoked section 11 of the Judicature Act, and substituted a sentence of 13 years, deducting the 1 year and 11 months spent on remand to arrive at 11 years and 1 month from the date of conviction.

Facts

On 10 September 2017 at Gwatiro Village, Butambala District, the appellant had unlawful carnal knowledge of the victim, N.M., without her consent. The incident occurred at night under conditions of limited light, and the victim could not see her attacker's face. She identified the appellant by his voice: he was a neighbour she saw daily, whose father was Mohammed Mukiibi, and whose voice she knew, having heard him speak the words "boy dose"; during the attack she heard him say "keep quiet, I will kill you". The victim was an elderly woman (stated as 75 years) who sustained bruising to her upper limb and injuries to her genitals. The appellant, aged 27 and a first-time offender, denied the offence, claiming he had slept at home. He was tried, convicted of rape and sentenced by the High Court at Mpigi (Kaweesa J) to 20 years' imprisonment running from the first date of remand, having spent 1 year and 11 months on remand.

Issues

  1. Whether the trial Judge erred in finding that the appellant had been positively identified as the perpetrator of the offence through voice identification.
  2. Whether the sentence of 20 years' imprisonment was manifestly harsh and excessive.
  3. Whether the sentence was illegal for failure to take into account the period the appellant spent on remand.

Orders

  • Ground 1 (identification) fails; conviction upheld.
  • Sentence of 20 years' imprisonment found illegal and set aside.
  • Substituted sentence of 13 years' imprisonment imposed.
  • Period of 1 year and 11 months spent on remand deducted, leaving 11 years and 1 month to be served from the date of conviction, 25/09/2019.

Key headnotes

Identification Evidence — Voice Identification — Prior Acquaintance with Accused
To identify a person by voice, the witness need not have previously spoken with that person; voice identification is sufficient where the witness was familiar with the accused and knew his voice, such as a neighbour heard speaking regularly.
Sentencing — Article 23(8) of the Constitution — Failure to Deduct Period on Remand
A sentence arrived at without taking into account the period the convict spent in lawful custody prior to completion of trial, as required by Article 23(8) of the Constitution, is illegal; the remand period must be credited arithmetically when the term of imprisonment is imposed.
Sentencing — Appellate Re-sentencing — Consistency and Range of Sentences for Rape
Where a sentence is set aside as illegal, the appellate court may invoke section 11 of the Judicature Act to impose an appropriate sentence, having regard to mitigating and aggravating factors and the principle of consistency requiring sentences to fall within the established range for similar offences.

Legislation cited (5)

  • Penal Code Act s.123
  • Penal Code Act s.124
  • Constitution of Uganda Article 23(8)
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) Directions, S.I 13-10, Rule 30(1)(a)

Cases cited (14)

  • Sabwe Abdu v Uganda (Criminal Appeal No. 19 of 2007)
  • Kiwalabye Benard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kimera Zaverio v Uganda (Criminal Appeal No. 427 of 2014)
  • Kalibobo Jackson v Uganda (Criminal Appeal No. 45 of 2001)
  • Naturinda Tamson v Uganda (Criminal Appeal No. 13 of 2011)
  • Karsa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R (1957) EA 336
  • Abelle v Uganda (Criminal Appeal No. 16 of 2016)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • Yebuga Majid v Uganda (Criminal Appeal No. 303 of 2009)
  • Onaba Razaki v Uganda (Criminal Appeal No. 327 of 2009)
  • Iugi Sairus v Uganda (Criminal Appeal No. 50 of 2000)
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.