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Alibankoha & 4 Others v Uganda (Criminal Appeal 243 of 2021)

Court of Appeal · [2024] UGCA 45 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First criminal appeal against conviction for murder and sentence of life imprisonment imposed by the High Court at Masindi
Decision
Convictions for murder upheld; sentences of life imprisonment set aside and substituted with reduced custodial terms ranging from 8 years 2 months to 16 years 2 months.

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Holding

The Court of Appeal, on a first appeal, re-evaluated the identification evidence and held that the appellants were correctly identified at the scene of the mob killing in broad daylight by witnesses who knew them, that the inconsistencies in the prosecution case were minor, and that the appellants' alibis were rightly disbelieved; the convictions for murder, founded on the doctrine of common intention under section 20 of the Penal Code Act, were upheld. On sentence, however, the Court held that life imprisonment was manifestly excessive for an offence committed in circumstances of mob justice, and substituted graduated custodial terms reflecting each appellant's role, age and the remand period.

Facts

On 14 September 2017 the deceased, who reportedly had a mental problem, commandeered a taxi at Karuguuza and drove towards Kakumiro, branching off to Mitujju trading centre. Acting on the driver's report and radio announcements, a mob staged a roadblock at Mitujju, deflated the vehicle's tyres and attacked the deceased, beating, stoning, spearing and cutting him despite pleas from community leaders that he be spared because of his mental condition. The assault continued even after police arrived and fired in the air. The deceased died shortly after reaching Mubende Referral Hospital. Prosecution witnesses, including a police officer (PW1), crime preventers (PW2, PW3) and a co-victim tied to a tree (PW5), identified the appellants as participants: the Fifth Appellant was seen cutting the deceased's arm with a panga and spearing him in the stomach, while the others stoned and assaulted him. The appellants raised alibis and denied participation. They were convicted of murder and each sentenced to life imprisonment.

Issues

  1. Whether the trial judge properly evaluated the identification evidence establishing the appellants' participation in the murder, having regard to the alleged inconsistencies and the appellants' alibis.
  2. Whether the sentence of life imprisonment imposed on the appellants was illegal or so manifestly excessive as to occasion a miscarriage of justice.

Orders

  • The appeal partially succeeds.
  • The appellants' conviction for the offence of murder is upheld.
  • The sentence of life imprisonment is set aside and substituted with a custodial term of 8 years and 2 months for the First Appellant.
  • Sentences of 12 years and 2 months substituted for each of the Second, Third and Fourth Appellants.
  • A sentence of 16 years and 2 months substituted for the Fifth Appellant.
  • The substituted sentences are to run from the date of conviction.

Key headnotes

Criminal Procedure — First Appeal — Duty of First Appellate Court to Re-evaluate Evidence
On a first appeal the appellate court must reconsider all material evidence that was before the trial court and, while allowing for the fact that it neither saw nor heard the witnesses, reach its own conclusion on the evidence considered in its totality rather than merely endorsing the trial court's findings.
Evidence — Identification — Conditions for Correct Identification in Difficult Circumstances
The quality of identification evidence is assessed by examining the length of observation, the distance between witness and accused, the lighting and the witness's familiarity with the accused; identification in broad daylight by witnesses who knew the accused beforehand over a considerable period may be relied upon even amid the chaos of a mob attack.
Evidence — Defence of Alibi — Burden of Proof and Late Disclosure
An accused who sets up an alibi assumes no burden of proving its truth; the prosecution retains the duty to place the accused at the scene, but the accused must account for so much of the time of the transaction as to render it impossible for him to have committed the act, and an alibi raised late and never put to the identifying witnesses may be rejected as an afterthought.
Criminal Law — Murder — Common Intention under Section 20 of the Penal Code Act
Where two or more persons form a common intention to prosecute an unlawful purpose and an offence is committed that is a probable consequence of that purpose, each is deemed to have committed the offence; participants placed at the scene of a mob killing actively taking part in the attack are properly convicted on the doctrine of common intention.
Criminal Procedure — Sentencing — Consistency and Proportionality in Mob Justice Cases
A sentencing court must have regard to consistency with sentences imposed for similar offences committed in similar circumstances; given the established sentencing range for murder committed in circumstances of mob justice, a sentence of life imprisonment may be manifestly excessive and liable to be set aside on appeal.
Criminal Procedure — Sentencing — Mitigating Factors of Age and the Principle of Parsimony
The principle of parsimony requires that a sentence be no more severe than is necessary to meet the purposes of sentencing, and the advanced age of an offender is a mitigating factor against a lengthy custodial sentence, consistent with the Sentencing Guidelines' caution against custodial sentences for persons of advanced age.

Legislation cited (9)

  • Penal Code Act Cap. 120 s.188
  • Penal Code Act Cap. 120 s.189
  • Penal Code Act Cap. 120 s.20
  • Judicature Act Cap. 13 s.11
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.30(1)(a)
  • Constitution of Uganda Article 23(8)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 clause 6(c)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 clause 9(3)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 clause 9(4)(a)

Cases cited (31)

  • Abdala Nabulere & Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Festo Androa Asenua & Another v Uganda [1998] UGSC 23
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Baguma Fred v Uganda (Criminal Appeal No. 7 of 2004)
  • R vs Sekha & Others (1939) EACA 145
  • Ntale v Uganda [1968] EA 206
  • R. vs. Chemulon Were Olango (1973) 4 E.A.C.A
  • Sekitoleko v Uganda [1967] EA 531
  • Kutegana Stephen v Uganda (Criminal Appeal No. 56 of 1996)
  • R vs Thomas Finel (1916) 12 Cr. App. Rep. 77
  • Alfred Tajar vs Uganda (1969) EACA Criminal Appeal No 167 of 1969
  • Karisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kobusheshe Karaveri v Uganda (Criminal Appeal No. 110 of 2008)
  • James s/o Yoram vs Rex (1950) 18 EACA 147
  • Aharikunda v Uganda [2018] UGSC 49
  • Kaddu Kavulu Lawrence v Uganda (Criminal Appeal No. 72 of 2018)
  • Magezi Gad v Uganda (Criminal Appeal No. 17 of 2014)
  • Opendi & Another v Uganda [2023] UGCA 58
  • Sebuliba Sirai v Uganda (Criminal Appeal No. 319 of 2019)
  • Kato Kajubi Godfrey v Uganda (Criminal Appeal No. 20 of 2014)
  • Turyaheebwa Ezra & Others v Uganda (Criminal Appeal No. 50 of 2015)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kamya Abdullah & Others v Uganda (Criminal Appeal No. 24 of 2015)
  • Mudwa v Uganda (Criminal Appeal No. 363 of 2017)
  • Tumwesigye Rauben v Uganda (Criminal Appeal No. 181 of 2013)
  • Adiga v Uganda [2021] UGCA 2
  • John Kasimbazi & Others v Uganda (Criminal Appeal No. 167 of 2013)
  • Wamutabaniwe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 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.