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Muyingo and 3 Others v Uganda (Criminal Appeal 185 of 2021; Criminal Appeals No. 149 & 185 of 2021)

Court of Appeal · [2024] UGCA 352 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Appeal dismissed; conviction and sentence of life imprisonment upheld. Appellants to continue serving life imprisonment.

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Holding

The Court of Appeal dismissed the appeal against conviction and sentence for murder. It held that the omission to record an interpreter, and counsel's tactical choice not to cross-examine certain witnesses, did not occasion a failure of justice under section 139 of the Trial on Indictments Act; the 4th appellant's plea had merely been misplaced in the record. The identification by two recognising eyewitnesses was of good quality and required no corroboration. The alibi defence was not pleaded in the memorandum of appeal and could not be raised in submissions. The life sentence was lawful, as Article 23(8) of the Constitution does not require deduction of remand time from life imprisonment.

Facts

The deceased, administrator of his grandfather's estate comprising two acres of land at Minana-Galabi Village, Mityana District, had been surveying the land, establishing boundary marks, and ascertaining bona fide occupants. Most of the accused were bibanja holders unhappy with this activity and had threatened to kill him. On 7 August 2019, while serving the accused with letters from the Minister of Lands inviting the parties to a settlement meeting, the deceased was attacked and hacked to death with pangas. Two eyewitnesses who knew the assailants as fellow villagers — PW1 and PW3 — saw the four appellants, including the village LC1 Chairman and Defence Secretary, holding the deceased down and cutting him on the head and neck. PW2 overheard telephone calls in which the 2nd appellant coordinated the attack on the intended target. A bloodstained panga and the Minister's letters were found at the scene. The four appellants were convicted of murder and sentenced to life imprisonment; other co-accused were acquitted at the no-case-to-answer stage.

Issues

  1. Whether the trial was vitiated by procedural irregularities — failure to provide an interpreter, denial of opportunity to cross-examine witnesses, and trial of the 4th appellant without a plea — that undermined the right to a fair hearing.
  2. Whether the trial judge erred in relying on inconsistent and contradictory identification evidence of PW1, PW2 and PW3.
  3. Whether the trial judge erred in relying on the uncorroborated evidence of PW1, PW2 and PW3 to place the appellants at the scene and to find that they participated in the crime.
  4. Whether the trial judge erred in relying on inconsistent and altered medical examination documents.
  5. Whether breaches in the chain of custody of exhibits depreciated their evidential value and rendered them wrongly admitted.
  6. Whether the sentence of life imprisonment was harsh and excessive and whether the failure to consider the time spent on remand was an error.

Orders

  • Appeal dismissed.
  • Conviction and sentence of life imprisonment confirmed.
  • Appellants to continue serving the sentence of life imprisonment imposed by the trial court.

Key headnotes

Criminal Procedure — Fair Hearing — Failure to record interpreter — Failure of justice
A finding, sentence or order of the High Court will not be reversed or altered on appeal on account of an error, omission or irregularity — such as the failure to record the presence of an interpreter — unless that irregularity has in fact occasioned a failure of justice under section 139 of the Trial on Indictments Act.
Criminal Procedure — Cross-examination — Tactical decision of counsel
Where defence counsel elects not to cross-examine a prosecution witness, no prejudice or miscarriage of justice is occasioned; the court cannot compel the cross-examination of any witness, and it is not a requirement that every prosecution witness be cross-examined.
Evidence — Identification — Recognition of known persons — Quality of identification
Where identifying witnesses knew the accused before the incident, the offence occurred in broad daylight over an appreciable period, and the witnesses observed from reasonable vantage points, the quality of identification is good and the danger of mistaken identity is reduced; recognition is more reliable than identification of a stranger.
Evidence — Inconsistencies and contradictions — Minor versus material
Minor inconsistencies, unless they point to deliberate untruthfulness on the part of prosecution witnesses, should be ignored; only major inconsistencies that go to the root of the case are resolved in favour of the accused.
Evidence — Corroboration — Identification by a single witness
There is no requirement in law or practice for corroboration of identification evidence; under section 133 of the Evidence Act no particular number of witnesses is required to prove any fact, and what matters is the quality of the identification rather than the number of witnesses.
Appeals — Grounds not specified in memorandum of appeal — Defence of alibi
An appellant may not, without leave of the court, argue a ground of appeal not specified in the memorandum of appeal; arguments on a defence such as alibi that were never pleaded in the memorandum cannot be smuggled into written submissions under rules 66(2) and 74 of the Court of Appeal Rules.
Sentencing — Life imprisonment — Time spent on remand — Article 23(8)
A sentence of life imprisonment is not amenable to Article 23(8) of the Constitution, which applies only to a quantified, deductible term of imprisonment; the failure to deduct time spent on remand from a sentence of life imprisonment is therefore not an error of law.

Legislation cited (18)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.208
  • Penal Code Act s.191
  • Penal Code Act s.20
  • Trial on Indictments Act s.56
  • Trial on Indictments Act s.57
  • Trial on Indictments Act s.60
  • Trial on Indictments Act s.72
  • Trial on Indictments Act s.139
  • Constitution Article 28(3)
  • Constitution Article 23(8)
  • Evidence Act s.133
  • Court of Appeal Rules rule 30(1)
  • Court of Appeal Rules rule 66(2)
  • Court of Appeal Rules rule 74
  • Sentencing Guidelines for the Courts of Judicature para.20
  • Sentencing Guidelines for the Courts of Judicature para.21

Cases cited (24)

  • De Souza v Tanga Town Council [1961] EA 377
  • Mweru and Another v Uganda Electricity Distribution Co. Ltd (Civil Appeal No. 281 of 2013)
  • Abiti Moses v Uganda (Criminal Appeal No. 286 of 2016)
  • Adan v Republic [1973] EA 445
  • Wepukhulu Nyiguguli v Uganda (Criminal Appeal No. 21 of 2001) [2002] UGSC 14
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Abudala Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Abdalla Bin Wendo and Another v R (1953) 20 EACA 166
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Bogere Moses v Uganda [1998] UGSC 22
  • Roria v R [1967] EA 583
  • Opolot Justine and Another v Uganda (Court of Appeal Criminal Appeal No. 155 of 2009)
  • Kalume v Republic [1998] 1 LLR 693
  • Uganda v George Wilson Simbwa (Supreme Court Criminal Appeal No. 37 of 1995)
  • Mumbere Julius v Uganda (Supreme Court Criminal Appeal No. 15 of 2014)
  • Francis Coke v Uganda [1992-93] HCB 43
  • Bukenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2004)
  • Bahemuka William and Another v Uganda (Court of Appeal Criminal Appeal No. 4 of 2003)
  • Kalyamagwa Samuel v Uganda (Court of Appeal Criminal Appeal No. 189 of 2012)
  • Bidong Ziraone and 2 Others v Uganda (Court of Appeal Criminal Appeal No. 216 of 2016)
  • Sebuliba Silaje v Uganda (Court of Appeal Criminal Appeal No. 319 of 2009)
  • Kaddu Karule Lawrence v Uganda (Supreme Court Criminal Appeal No. 72 of 2018)
  • Nalagezi Gad v Uganda (Supreme Court Criminal Appeal No. 17 of 2014)
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.