Wakilii

Nagayi Alias Mariam v Uganda (Criminal Appeal No. 14O of 2023)

Court of Appeal · [2025] UGCA 198 · 2025 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal to the Court of Appeal against conviction for murder and a 30-year sentence imposed by the High Court
Decision
Conviction for murder upheld; the illegal 30-year sentence set aside and substituted with 27 years, 3 months and 22 days' imprisonment running from 6 June 2022.

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Holding

The Court held the trial judge wrongly admitted the appellant's retracted charge and caution statement without a trial within a trial, but excluded it and found independent evidence sustained the conviction. Circumstantial and expert evidence, including the pathologist's sworn oral opinion and the doctrine of last seen, proved murder by poisoning beyond reasonable doubt; Article 126(2)(e) was properly applied and the burden of proof was never shifted. Allegations of bias failed. However, the 30-year sentence was illegal for failing to specifically credit the remand period under Article 23(8); it was set aside and a sentence of 27 years, 3 months and 22 days substituted. Appeal allowed in part.

Facts

The appellant, the deceased's girlfriend, helped arrange his travel to Uganda for business using an invitation letter later found to be forged. The deceased, a Finnish national, arrived on 5 February 2018 and, after questioning by ISO, checked into a Kampala hotel with the appellant. That night the appellant left the hotel, returning around 1:00am, and on instructions said she went to buy the deceased drugs. The next morning the appellant reported the deceased unwell; a hotel nurse found him dead. A post-mortem found no anatomical cause of death, but toxicological analysis of samples revealed a cocktail of drugs and pesticides (including cocaine, morphine, diazinon, malathion and chlorfenvinphos) ingested through the mouth, which caused death. Expert witnesses testified the substances could kill if ingested. The appellant admitted procuring drugs for the deceased and was the last person with him while alive. Co-accused were discharged on a no-case-to-answer. The appellant gave an unsworn statement which the trial court rejected as containing material falsehoods.

Issues

  1. Whether the trial judge erred in admitting the appellant's retracted charge and caution statement without first conducting a trial within a trial.
  2. Whether there was sufficient circumstantial and expert evidence to prove that the appellant murdered the deceased by poisoning, and whether the pathologist's oral opinion on the cause of death was admissible.
  3. Whether the trial judge misapplied Article 126(2)(e) of the Constitution so as to dilute the prosecution's burden of proof.
  4. Whether the trial judge shifted the burden of proof onto the appellant or wrongly inferred a syndicate to kill the deceased.
  5. Whether the trial judge was biased against the appellant, as shown by her use of derogatory language.
  6. Whether the sentence of 30 years' imprisonment was illegal for failing to credit the remand period and/or manifestly harsh and excessive.

Orders

  • Ground five succeeds; the charge and caution statement is excluded from the Court's re-evaluation of the evidence.
  • Grounds 1, 2, 3, 4, 6, 7, 8 and 9 fail.
  • The conviction for murder is upheld.
  • The sentence of 30 years' imprisonment is set aside as illegal.
  • The appellant is sentenced to 27 years, 3 months and 22 days' imprisonment with effect from the date of conviction, 6 June 2022.
  • The appeal succeeds only in part.

Key headnotes

Evidence — Confessions — Retracted charge and caution statement — Trial within a trial
Where an accused challenges the admissibility of a charge and caution statement on the ground that it was not made voluntarily, the trial court must conduct a trial within a trial to determine voluntariness before admitting it; hearing counsel alone, without inquiry, is insufficient and admission of the statement in such circumstances is made in error.
Evidence — Improperly admitted evidence — Effect on conviction
Under section 166 of the Evidence Act the improper admission of evidence is not, of itself, a ground for reversal where, independently of the evidence objected to, there was sufficient evidence to justify the decision.
Criminal Law & Procedure — Circumstantial evidence — Test for conviction
Where a conviction rests solely 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 weakening or destroying the inference of guilt.
Evidence — Expert evidence — Pathologist — Oral opinion on cause of death
Expert evidence need not be given only in documentary form; a pathologist may give a sworn oral opinion on the cause of death derived from a toxicological report properly admitted in evidence, and may draw on material prepared by other experts in the same field, and a single co-signatory of a post-mortem report is competent to testify on it.
Criminal Law & Procedure — Doctrine of last seen
Where the accused was the last person seen with the deceased while alive, a duty lies on the accused to explain how the deceased met their death; in the absence of a satisfactory explanation, and where circumstantial evidence is overwhelming, the court is justified in inferring that the accused caused the death.
Criminal Law & Procedure — Burden of proof — Unsworn statement
The legal burden to prove guilt beyond reasonable doubt rests on the prosecution throughout and never shifts to the accused; a trial judge putting clarifying questions to an accused who has elected to give an unsworn statement is permissible prompting and does not shift the burden of proof.
Criminal Law & Procedure — Sentencing — Crediting the remand period
Under Article 23(8) of the Constitution it is mandatory for a sentencing court to specifically and arithmetically deduct the period spent on remand from the final sentence; a sentence merely stating that remand was 'taken into account', without specific deduction, is ambiguous and illegal and cannot stand.

Legislation cited (17)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Revised Penal Code Act Cap 128 s.171
  • Revised Penal Code Act Cap 128 s.172
  • Revised Evidence Act Cap 8 s.24
  • Revised Evidence Act s.166
  • Evidence Act s.43
  • Trial on Indictment Act s.42
  • Revised Trial on Indictment Act s.43
  • Constitution Article 126(2)(e)
  • Constitution Article 28(1)
  • Constitution Article 28(3)(a)
  • Constitution Article 23(8)
  • Judicature Act Cap 16 s.11
  • Rules of the Court of Appeal rule 66(2)
  • Rules of the Court of Appeal rule 30(1)(a)
  • Narcotic Drugs and Psychotropic Substances (Control) Act 2015

Cases cited (39)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Matowu Musa Kassim v Uganda (Criminal Appeal No. 27 of 2002)
  • Tuwamoi v Uganda [1967] 1 EA 84
  • Okethi Okale v Republic [1965] EA 555
  • PC Wamala Edson & 2 Ors v Uganda (Criminal Appeal No. 109 of 2016)
  • Amos Binuge & Ors v Uganda (Criminal Appeal No. 23 of 1989)
  • Walugembe v Uganda (Criminal Appeal No. 39 of 2003)
  • Akol Patrick & Others v Uganda (Criminal Appeal No. 60 of 2002)
  • Janet Mureeba & 2 Others v Uganda (Civil Appeal No. 13 of 2003)
  • Akbar Hussein Godi vs Uganda, Criminal Appeal. No. of 2013
  • Byaruhanga Fodori v Uganda (Criminal Appeal No. 18 of 2002)
  • S. Musoke v R [1958] EA 715
  • Teper v R [1952] AC 480
  • Tindigwihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
  • R v Abadom [1983] 1 All ER 364
  • Mulindwa George William v Kisubika Joseph (Civil Appeal No. 12 of 2014) [2018] UGSC 38
  • Busingye Paul & Ampereza Lawrence v Uganda (Criminal Appeal No. 048 of 2022 and 056 of 2019)
  • Moses Jua v The State [2007] JELR 4403a (CA)
  • Musyoka Maingi Nguli v Republic [2019] eKLR
  • Stephen Haruna v The Attorney General of the Federation (2010)
  • Oryek Benson v Uganda (Criminal Appeal No. 21 of 2016)
  • Musana Alex v Uganda (Criminal Appeal No. 105 of 2015) [2022] UGCA 247
  • Baluku David v Uganda (Criminal Appeal No. 585 of 2015) [2023] UGCA 229
  • Khatijabai Jawa Hasham v Zenab d/o Chandu Nansi (1957) EA 38
  • Yull v Yull [1945] 1 All ER 183
  • Woolmington v DPP [1935] AC 462
  • GM Combined (U) Ltd v AK Detergents (U) Ltd (Civil Appeal No. 19 of 1998)
  • Ex parte Barnsley and District Licensed Victuallers Association [1960] 2 QB 167
  • Professor Isaac Newton Ojok v Uganda (Criminal Appeal No. 33 of 1991)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Blasio Ssekawooya v Uganda (Criminal Appeal No. 107 of 2009)
  • Wamutabanewe Jamiru v Uganda (Criminal Appeal No. 74 of 2007)
  • Florence Abbo v Uganda (Criminal Appeal No. 168 of 2013)
  • Moses Rwabugande v Uganda (Criminal Appeal No. 25 of 2014)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • Bayo Sunday v Uganda (Criminal Appeal No. 0414 of 2019)
  • Sebuliba Silaje v Uganda (Criminal Appeal No. 0319 of 2009)
  • Jackline Uwera Nsega v Uganda (Criminal Appeal No. 824 of 2015) [2020] UGCA 2016
  • Ssemaganda Sperito & Another v Uganda (Criminal Appeal No. 456 of 2016)
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.