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Gumisiriza & Another v Uganda (Criminal Appeal 102 of 2019)

Court of Appeal · [2025] UGCA 56 · 2025 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First criminal appeal against conviction and sentence from a High Court murder conviction
Decision
Appeal partly allowed: 2nd appellant's conviction upheld; both appellants' sentences set aside and re-imposed with remand time deducted (1st appellant 18 years 5 months 16 days; 2nd appellant 24 years 2 months 19 days).

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Holding

The Court of Appeal struck out ground 1 as offending rule 66(2) for failing to specify the evidence wrongly evaluated, and disregarded submissions on inconsistencies not pleaded under rule 74(1)(a). It upheld the 2nd appellant's conviction, finding he was reliably identified by two witnesses in adequate light over about ten minutes, and that his late-raised alibi was an afterthought disproved by the prosecution. He was a joint participant who held the deceased while the 1st appellant struck the fatal blow. Both custodial sentences were set aside as ambiguous for not clearly deducting remand time (per Rwabugande), then re-imposed: the 1st appellant 18 years 5 months 16 days and the 2nd appellant 24 years 2 months 19 days.

Facts

On 22 July 2016 at about 3.00 am, the deceased Sentongo Farouk and his friend Angwiso Patrick were in a bar in Katoogo Zone, Gaba, Makindye Division, Kampala. The appellants, who were brothers, joined them and accused them of stealing the 1st appellant's mobile phone, then started a fight. The Local Council I Chairperson intervened and stopped it, and the appellants left. About five minutes later the appellants returned armed; the 1st appellant carried a hammer and the 2nd appellant a machete-like metallic object. While the 2nd appellant held the deceased, the 1st appellant struck him on the back of the head with the hammer. The deceased fell bleeding, was taken for treatment, and died the next day at Nsambya Hospital. Both appellants were arrested at their home, indicted for murder, convicted and sentenced in the High Court. Two eyewitnesses identified the 2nd appellant; the 1st appellant pleaded guilty after the prosecution closed its case.

Issues

  1. Whether ground 1 of the memorandum of appeal complied with rule 66(2) of the Court of Appeal Rules.
  2. Whether the trial judge erred in finding that the 2nd appellant was positively identified at the scene of the crime.
  3. Whether the trial judge erred in rejecting the 2nd appellant's defence of alibi.
  4. Whether the 1st appellant's sentence was imposed without proper regard to mitigating factors and the period spent on remand.
  5. Whether the sentences of 18 years and 6 months (1st appellant) and 25 years (2nd appellant) were manifestly excessive.

Orders

  • Ground 1 of the memorandum of appeal struck out for non-compliance with rule 66(2) of the Court of Appeal Rules.
  • The appeal against the conviction of the 2nd appellant is dismissed.
  • The 1st appellant shall serve a sentence of 18 years, 5 months and 16 days' imprisonment, with effect from 16th April 2019.
  • The 2nd appellant shall serve a sentence of 24 years, 2 months and 19 days' imprisonment, with effect from 22nd May 2019.

Key headnotes

Criminal Law & Procedure — Appeals — Formulation of Grounds — Rule 66(2) Court of Appeal Rules
A ground of appeal must set out concisely, without argument or narrative, the specific points of law or fact alleged to have been wrongly decided; an omnibus ground that merely complains of failure to properly evaluate the evidence without identifying the evidence in question is incurably defective and will be struck out.
Criminal Law & Procedure — Appeals — Arguing Grounds Not Pleaded — Rule 74(1)(a) Court of Appeal Rules
An appellant may not, without leave of the court, advance at the hearing an argument or ground not specified in the memorandum of appeal; submissions on matters such as inconsistencies and contradictions that were not pleaded will be disregarded.
Evidence — Identification — Single and Multiple Identifying Witnesses — Need for Caution
Where a conviction depends wholly or substantially on identification evidence, the court must warn itself of the special need for caution and examine the quality of the identification — the length of observation, the lighting, the distance, and the witnesses' familiarity with the accused; a plurality of witnesses is not required, but poor-quality identification is not cured by their number.
Criminal Law & Procedure — Defences — Alibi — Burden of Proof and Late Disclosure
An accused who pleads alibi bears no burden to prove it; the prosecution must disprove it by placing the accused at the scene of the crime at the material time on an evaluation of the evidence as a whole. An alibi first raised only at the defence stage, unsupported except by accomplice evidence, may be treated as an afterthought.
Criminal Law & Procedure — Parties to Offences — Common Intention — Penal Code Act s.19
A person who actively assists the commission of an offence, such as holding the victim while a co-accused inflicts the fatal injury, shares a common intention to prosecute an unlawful purpose and is liable as a principal offender, notwithstanding that he did not himself inflict the injuries that caused death.
Criminal Law & Procedure — Sentencing — Remand Period — Article 23(8) Constitution and Rwabugande Principle
Taking the period spent on remand into account is an arithmetical exercise mandated by Article 23(8) of the Constitution; a sentence stated in general terms that the remand period was considered is ambiguous and may be set aside, the remand period being specifically credited and deducted from the intended sentence.
Criminal Law & Procedure — Sentencing — Appellate Interference — Manifestly Excessive Sentence
There is a high threshold before an appellate court will interfere with a sentence as manifestly excessive; sentencing is a matter of judicial discretion and the court will intervene only where the sentence exceeds the permissible range or is inconsistent with sentences in comparable cases.

Legislation cited (15)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.19(1)(b) and (c)
  • Penal Code Act s.12(2)
  • Trial on Indictments Act s.132(3)
  • Trial on Indictments Act s.139(1)
  • Trial on Indictments Act s.64
  • Judicature Act s.11
  • Evidence Act s.132
  • Constitution of Uganda art.23(8)
  • Court of Appeal Rules r.30(1)
  • Court of Appeal Rules r.66(2)
  • Court of Appeal Rules r.74(1)(a)
  • Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice Directions) 2013 para.21
  • Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice Directions) 2013 para.15

Cases cited (36)

  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Mugerwa John v Uganda (Criminal Appeal No. 375 of 2020)
  • Benjamin Oteka v Uganda (Criminal Appeal No. 175 of 2018)
  • Sseremba Dennis v Uganda (Criminal Appeal No. 480 of 2017)
  • Kayanja Hassan v Uganda (Criminal Appeal No. 206 of 2012)
  • Engonu Cornelius v Uganda (Criminal Appeal No. 518 of 2015)
  • Abudala Nabulere and Another v Uganda [1978] UGCA 14
  • Abdalla Bin Wendo and Another v R (1953) 20 EACA 166
  • Roria v R (1967) EA 583
  • Nashaba Paddy v Uganda [2002] UGSC 17
  • Oryem v Uganda [2010] UGSC 42
  • Alex Muhwezi v Uganda [2010] UGSC 12
  • Lieutenant Jonas Ainomugisha v Uganda (Criminal Appeal No. 19 of 2015)
  • Androa Asenua and Another v Uganda [1999] UGSC 23
  • R v Sukha Singh s/o Wazir Singh (1939) 6 EACA 145
  • Kigundu Gerald v Uganda (Criminal Appeal No. 403 of 2019)
  • Sgt. Baluku and Another v Uganda (Criminal Appeal No. 21 of 2014)
  • R v Baskerville (1916) 2 KB 658
  • Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)
  • Kidega Francis v Uganda (Court of Appeal Criminal Appeal No. 570 of 2015)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Kyalimpa Edward v Uganda (Supreme Court Criminal Appeal No. 10 of 1995)
  • Akbar Godi v Uganda (Supreme Court Criminal Appeal No. 3 of 2012)
  • Oyita Sam v Uganda (Criminal Appeal No. 307 of 2010)
  • Mwerinde Lauben v Uganda (Criminal Appeal No. 151 of 2013)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2016)
  • Aharikundira Yusitina v Uganda (Criminal Appeal No. 27 of 2015)
  • Mwesigye Peter v Uganda [2018] UGCA 10
  • Emeju Juventine v Uganda (Court of Appeal Criminal Appeal No. 95 of 2014)
  • Anguyo Robert v Uganda [2016] UGCA 39
  • Kibaruma John v Uganda (Criminal Appeal No. 225 of 2010)
  • Rwanyaga Charles v Uganda (Court of Appeal Criminal Appeal No. 852 of 2014)
  • Bayo Sunday v Uganda (Court of Appeal Criminal Appeal No. 414 of 2019)
  • Sambwa Issa v Uganda (Court of Appeal Criminal Appeal No. 145 of 2022)
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.