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Kajubi Farouk alias Kinene Joshua v Uganda (Criminal Appeal No. 0417 of 2019)

Court of Appeal · [2025] UGCA 189 · 2025 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from a High Court conviction and sentence for murder
Decision
Sentence set aside; Appellant ordered released forthwith unless held on other lawful charges.

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Holding

The Court of Appeal held that where an accused asserts he is under 18 and that age is in controversy, the trial Judge must inquire into his actual age under section 107 of the Children Act rather than treat the PF24 medical apparent-age as conclusive; the burden of proving the accused was 18 lies on the prosecution beyond reasonable doubt. The trial Judge failed to make that inquiry despite the Appellant's repeated assertions of being about 16 at the time of the offence. As the Appellant should have been sentenced under the Children Act (maximum three years for a capital offence) and had already served over three years, the Court set aside the sentence and ordered his release.

Facts

On 28 July 2016 a special hire driver, Solomon Kayizzi, went missing from his work station at Kireka. On 12 August 2016 the Appellant was arrested. A search of his house recovered the deceased's ATM cards, identity card, payment receipts and a bus ticket issued in the deceased's name. The deceased's body was later recovered from Bugiri. Telephone records showed the Appellant and the deceased had communicated, including on the day the deceased disappeared, and that both phones were in Bugiri that day. The Appellant denied the charge and raised an alibi. The trial Judge convicted him of murder and sentenced him as an adult. The medical examination form (PF24) recorded an apparent age of 18 years, while the Appellant repeatedly stated he was born on 14 July 2000 and was about 16 at the time of the offence. The trial Judge treated the PF24 as conclusive of age and did not inquire further.

Issues

  1. Whether the trial Judge erred in trying and sentencing the Appellant as an adult without inquiring into his age where evidence suggested he was a minor at the time of the offence.
  2. Whether the trial Judge was obliged under the Children Act to conduct an inquiry into the Appellant's age and to apply the Act's sentencing provisions for a child convicted of a capital offence.
  3. What order should follow where a convict shown to be a minor has already served more than the maximum custodial period permitted under the Children Act.

Orders

  • Grounds one and five of the appeal succeed.
  • The sentence is set aside under section 11 of the Judicature Act.
  • The Appellant is set free forthwith unless held on other lawful charges.
  • The appeal succeeds in the terms given.

Key headnotes

Criminal Law & Procedure — Child Offenders — Duty to Inquire into Age under Children Act s.107
Where it appears to the court, or an accused asserts, that he or she is under eighteen years of age, the trial court is obliged to make an inquiry into the accused's actual age, taking such evidence (including medical evidence) as it may require, and may not treat an apparent-age medical report as conclusive of age.
Evidence — Proof of Age — Burden on Prosecution; Apparent and Approximate Age Distinguished
Where the age of an accused is material, the burden lies on the prosecution to prove beyond reasonable doubt that the accused had attained eighteen years at the time of the offence; "apparent age" and "approximate age" on a PF24 are mere estimates, and any doubt as to whether the accused was a minor must be resolved in the accused's favour.
Criminal Law & Procedure — Sentencing of Children — Maximum Custodial Term for Capital Offences
A child convicted of an offence punishable by death may be detained for a maximum of three years under section 94(1)(g) of the Children Act; where such a convict has already served that maximum period, the appropriate order is release forthwith without remitting the matter to the Family and Children Court for sentencing.
Criminal Law & Procedure — First Appeal — Duty of First Appellate Court to Re-evaluate Evidence
As a first appellate court, the Court of Appeal has a duty to review and reconsider the whole of the evidence on record and the materials before the trial Judge, weighing the judgment appealed from, and to come to its own conclusion on that evidence.

Legislation cited (14)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Children Act s.2
  • Children Act s.14(1)(a)
  • Children Act s.93
  • Children Act s.94(1)(g)
  • Children Act s.99(3)
  • Children Act s.100(3)
  • Children Act s.104(3)
  • Children Act s.107(1)
  • Children Act s.107(2)
  • Trial on Indictment Act s.66(3)
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 Rule 30(1)(a)

Cases cited (8)

  • Kiiza Samuel v Uganda (Criminal Appeal No. 102 of 2008)
  • Serubega Joseph v Uganda (Criminal Appeal No. 0147 of 2008)
  • Okethi Okale & Another v Republic [1965] EA 555
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Sekito Alex & Others v Uganda (Criminal Appeal No. 078 of 2019)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Birembo Sebastian & Nyonzima Mariko v Uganda (Criminal Appeal No. 20 of 2001)
  • Ssendyose Joseph v Uganda (Criminal Appeal No. 150 of 2010)
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.