Wakilii

Nsubuga Noah and Another v Uganda (Criminal Appeal No. 114 of 2019)

Court of Appeal · [2024] UGCA 367 · 2024 Conviction Upheld; Re-sentenced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Conviction for murder upheld; original sentences set aside as illegal and substituted on appeal with higher sentences of 22 and 19 years' imprisonment, less remand.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the appeal against conviction for murder. It held the conviction rested not on purely circumstantial evidence but mainly on the deceased's direct identification of his assailants as a single identifying witness, supported by his dying declaration and corroborative circumstantial evidence; identification conditions were favourable. The defences of alibi and insanity had been considered and properly rejected, and the 2nd appellant was rightly convicted on common intention. However, because the trial Judge deducted the remand period without first fixing a clear sentence, the sentences were illegal and were set aside. Re-sentencing under section 11 of the Judicature Act, the court imposed 22 years (1st appellant) and 19 years (2nd appellant), less remand.

Facts

On 18 October 2015 the deceased, an elderly man, was found severely beaten in a roadside drainage channel, both limbs fractured. He told a crime preventer (Pw7) that the 1st appellant, known locally as Pastor Nsubuga, had beaten him with a large club and pushed him into the channel, and that the 2nd appellant, a water-seller, had also beaten him and taken his phone and money. Pw7 found the 1st appellant nearby still holding the club, boasting he had "finished him"; the 1st appellant was disarmed and taken to police, where he repeated that he had finished "the one who had been bewitching him". The deceased was treated at Mulago Hospital, discharged, and died of circulatory failure on 22 July 2016. Before his death, while bedridden and unable to stand, the deceased testified against both appellants in a related grievous-harm charge, identifying them as his attackers with the aid of roadside lights. The appellants were committed for trial, convicted of murder, and sentenced to 19 and 16 years respectively.

Issues

  1. Whether the trial Judge properly evaluated the evidence in convicting the appellants on the basis of allegedly contradictory, uncorroborated circumstantial evidence.
  2. Whether the conviction could be sustained on the evidence of a single identifying witness and the deceased's dying declaration.
  3. Whether the trial Judge properly rejected the 1st appellant's defences of alibi and insanity.
  4. Whether the 2nd appellant was rightly convicted of murder on the doctrine of common intention.
  5. Whether the sentences of 19 and 16 years' imprisonment were illegal, harsh and excessive.

Orders

  • The appeal against conviction is dismissed; the conviction for murder is upheld.
  • The sentences of 19 and 16 years' imprisonment imposed by the trial court are set aside as illegal.
  • The 1st appellant is sentenced to 22 years' imprisonment, less 3 years, 7 months and 25 days spent on remand, to serve 18 years, 4 months and 5 days.
  • The 2nd appellant is sentenced to 19 years' imprisonment, less 3 years, 7 months and 25 days spent on remand, to serve 15 years, 4 months and 5 days.
  • Both sentences shall run from 29 May 2019, the date of conviction.

Key headnotes

Criminal Evidence — Single Identifying Witness — Need for Caution and Corroboration
A conviction may rest on the evidence of a single identifying witness, but the court must warn itself of the danger of relying on such evidence and be satisfied that the conditions favouring correct identification were present; corroborative circumstantial evidence renders such a warning unnecessary in substance.
Criminal Evidence — Circumstantial Evidence — Inculpatory Facts Inconsistent with Innocence
Before a conviction is founded on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than guilt, with no co-existing circumstances that would weaken the inference.
Defences — Alibi — Burden on Prosecution to Place Accused at the Scene
An accused who raises an alibi bears no burden to prove it; the prosecution must adduce evidence placing the accused at the scene of the crime, and where identification evidence squarely does so, the alibi is properly rejected.
Defences — Insanity / Fitness to Plead — Section 45 Trial on Indictments Act
The court's duty to inquire into an accused's fitness to plead under section 45 of the Trial on Indictments Act arises only where the court has reason to believe the accused is of unsound mind and incapable of making a defence; where the accused coherently follows and conducts his trial, no inquiry is required and a finding of soundness will not be disturbed.
Parties to Offences — Common Intention — Joint Assault Causing Death
Where two or more persons join in assaulting another, each may be convicted on the basis of common intention under section 20 of the Penal Code Act even without prior agreement, where the offence committed was a probable consequence of the unlawful purpose pursued in conjunction.
Sentencing — Deduction of Remand Period — Requirement to Fix a Sentence First
A sentence is illegal where the court purports to deduct the remand period without first arithmetically fixing the sentence from which the deduction is made; such a vague sentence will be set aside and the appellate court may re-sentence afresh under section 11 of the Judicature Act.

Legislation cited (10)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.219
  • Penal Code Act s.20
  • Penal Code Act s.11
  • Trial on Indictments Act s.45
  • Judicature Act s.11
  • Constitution of Uganda Article 23(8)
  • Judicature (Court of Appeal Rules) Directions, S.I. 13-10 rule 30(1)(a)
  • Judicature (Court of Appeal Rules) Directions, S.I. 13-10 rule 74

Cases cited (25)

  • Woolmington v DPP [1935] AC 462
  • Bogere Charles v Uganda (Supreme Court Criminal Appeal No. 10 of 1996)
  • Abdalla Bin Wendo and Another v R [1953] 20 EACA 166
  • Sekitoleko v Uganda (1967) EA 531
  • Tumwesigye Rauben v Uganda (Criminal Appeal No. 181 of 2013)
  • Mbunya Godfrey v Uganda (Supreme Court Criminal Appeal No. 4 of 2011)
  • German Benjamin v Uganda (Criminal Appeal No. 142 of 2010)
  • Ssebugwawo Hassan v Uganda (Criminal Appeal No. 526 of 2016)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Akbar Hussein Godi v Uganda (Supreme Court Criminal Appeal No. 3 of 2013)
  • Iwutung Stephen v Uganda (Criminal Appeal No. 20 of 2016)
  • R v Hodge (1838) 2 Lewin 227, 168 ER 1136
  • Simoni Musoke v R [1958] 1 EA 715
  • Teper v R [1952] AC 480
  • Abdalla Nabulere and 2 Others v Uganda (Criminal Appeal No. 9 of 1978)
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1992)
  • Kamya Abdallah and 4 Others v Uganda (Supreme Court Criminal Appeal No. 24 of 2015)
  • R v Okute s/o Kiliebi and Gadimba s/o Oumo (1941) 8 EACA 80
  • Aria Angelo v Uganda (Criminal Appeal No. 439 of 2015)
  • Magezi Gad v Uganda (Criminal Appeal No. 17 of 2014)
  • Manige Lamu v Uganda (Criminal Appeal No. 384 of 2017)
  • Bagatenda Peter v Uganda (Supreme Court Criminal Appeal No. 10 of 2006)
  • Sohan Singh s/o Lakha Singh v R [1958] EA 28
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
  • Kaplotwa's case
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.