Wakilii

Babyebuza & 2 Others v Uganda (Criminal Appeal 92 of 2017)

Court of Appeal · [2025] UGCA 34 · 2025 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence from a High Court murder conviction
Decision
Appeal dismissed; murder convictions and 32-year sentences upheld; appellants to continue serving their sentences.

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Holding

The Court of Appeal dismissed the appeal and upheld the murder convictions and 32-year sentences. It held that the second appellant's retracted charge and caution statement was voluntarily made, the injuries he relied on having been inflicted after it was recorded, and could be used both against him and, under section 27 of the Evidence Act, against his co-accused. The confession was corroborated by evidence of prior threats to kill the deceased and by circumstantial evidence consistent with its narration. The 35-year sentences were within the established range for murder and neither harsh nor excessive. The court declined the prosecution's invitation to convict on conspiracy absent a cross-appeal, and because conspiracy merges with the completed principal offence.

Facts

The three appellants were close relatives and village-mates of the deceased, Peter Kabagambe, in Kanungu District. A grudge existed because the deceased was accused of bewitching the first appellant, who had repeatedly threatened to kill him; the threats were reported to the Local Council Chairperson and police. On 25 December 2013 the deceased went to a valley to fetch water and did not return. He was found the next day in a bush, lying in a pool of blood with bruises over his body, and died on 28 December 2013 from internal and intracranial haemorrhage. The second appellant fled the village and, in a charge and caution statement, admitted participating in the killing with the other two appellants to avenge the alleged witchcraft, describing the weapon used and that it was kept at the third appellant's home. A pointed bloodstained stick was recovered from the third appellant's home. The narration matched the testimony of prosecution witnesses as to the deceased's movements and the murder weapon.

Issues

  1. Whether the trial judge failed to evaluate the circumstantial evidence alongside the appellants' alibi defences and thereby wrongly convicted them of murder.
  2. Whether the retracted charge and caution statement of the second appellant was voluntarily made and could be relied upon to convict, including against the co-accused.
  3. Whether the sentences of 35 years' imprisonment (32 years after remand) were harsh and excessive.
  4. Whether the Court of Appeal could convict and sentence the appellants on the count of conspiracy to murder in the absence of a cross-appeal.

Orders

  • The appeal is dismissed for being devoid of any merit.
  • The conviction and sentences of the High Court are upheld.
  • The appellants shall continue to serve the imprisonment terms as ordered by the High Court.

Key headnotes

Evidence — Confessions — Retracted confession — Assessment of voluntariness
A retracted charge and caution statement may be relied upon to convict where the trial court, having considered the circumstances, finds it was voluntarily made; injuries on the accused inflicted after the statement was recorded do not render it involuntary.
Evidence — Confessions — Use against co-accused — Section 27 Evidence Act
Where more than one person is tried jointly for the same offence, a confession made by one affecting himself and the others may be taken into consideration as evidence against the co-accused as well as against its maker.
Criminal Procedure — Circumstantial evidence — Standard for conviction
A conviction may be founded on circumstantial evidence only where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.
Evidence — Prior threats to kill — Admissibility and corroborative value
Evidence of a prior threat or an announced intention to kill is always admissible against a person accused of murder and, being evidence tending to connect the accused with the offence, is capable of corroborating a confession.
Criminal Procedure — Sentencing — Grounds for appellate interference
An appellate court will interfere with a sentence only where it is illegal, founded on a wrong principle, the trial court failed to consider an important matter, or the sentence is harsh and manifestly excessive in the circumstances.
Criminal Procedure — Appeals — Raising new mitigating grounds — Rule 74(1) Court of Appeal Rules
A mitigating factor not raised before the trial court cannot be argued on appeal for the first time without leave of the court, as required by Rule 74(1) of the Judicature (Court of Appeal) Rules.
Criminal Law — Conspiracy — Merger with completed principal offence; appellate conviction without cross-appeal
Conspiracy terminates with the commission of the substantive offence, so it is superfluous and oppressive to convict of both conspiracy and the principal offence; and an appellate court cannot convict or sentence on a further count absent a properly filed cross-appeal.

Legislation cited (11)

  • Penal Code Act Cap 120 s.188
  • Penal Code Act Cap 120 s.189
  • Penal Code Act Cap 120 s.208
  • Penal Code Act Cap 120 s.390
  • Trial on Indictments Act s.22
  • Evidence Act s.20
  • Evidence Act s.27
  • Judicature Act Cap 13 s.11
  • Judicature (Court of Appeal) Rules Rule 30(1)(a)
  • Judicature (Court of Appeal) Rules Rule 74(1)
  • Constitution of Uganda Article 23(8)

Cases cited (19)

  • Baguma Fred v Uganda (Criminal Appeal No. 7 of 2004)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Simon Musoke Vs R [1975] E.A. 715
  • Abdallah Nabutere and Two Others v Uganda (Criminal Appeal No. 9 of 1978)
  • Waihi and Another v Uganda [1968] EA 278
  • Mohamed Mukasa and Another v Uganda (Criminal Appeal No. 27 of 1995)
  • Sserwada Charles Salongo and Three Others v Uganda (Criminal Appeal No. 147 of 2019)
  • Abasa Johnson and Another v Uganda (Criminal Appeal No. 34 of 2017)
  • Ojaniole Peter v Uganda (Criminal Appeal No. 34 of 2017)
  • Kamya Johnson Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
  • Kwatabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Wamutabanewe Jamiru Moses v Uganda (Criminal Appeal No. 74 of 2007)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kyaterekera George William v Uganda (Criminal Appeal No. 773 of 2010)
  • Ssemanda Christopher and Muyingo Denis v Uganda (Criminal Appeal No. 77 of 2010)
  • Kisifu Majaidin alias Mpata v Uganda (Criminal Appeal No. 28 of 2007)
  • Kalebbe Ahamad v Uganda (Criminal Appeal No. 6 of 2004)
  • Serunkuma Edhisa v Uganda and 5 Others (Criminal Appeal No. 147 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.