Wakilii

Kyarigaba Innocent v Uganda (Criminal Appeal No. 245 of 2017)

Court of Appeal · [2026] UGCA 142 · 2026 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence for murder from the High Court at Masaka
Decision
Conviction for murder upheld; the original sentence was set aside and the appellant re-sentenced to 40 years' imprisonment, less 3 years on remand, to serve 37 years from 24 May 2017.

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Holding

The appellant was convicted of murdering her mother and sentenced to 40 years' imprisonment. On appeal she challenged reliance on the deceased's dying declaration, the rejection of an accomplice's exculpatory evidence, and the sentence. The Court of Appeal held that the trial judge properly relied on the dying declaration testified to by PW3, corroborated by circumstantial evidence and prior threats, and rightly disbelieved the accomplice DW2. The conviction was upheld. However, the trial judge had failed to consider the mitigating factors, rendering the sentence illegal. Re-sentencing under section 11 of the Judicature Act, the Court imposed 40 years, deducting 3 years spent on remand, leaving 37 years to serve.

Facts

On 13 July 2014, at Nyantungo village, Sembabule district, the deceased Nabigwamu Federisi was attacked and fatally injured. She was the mother of the appellant. The appellant, her brother PW1, and the accomplice DW2 (Musementa) had earlier constructed shrines, which the deceased, a Christian, burnt. Following this, the appellant fell into conflict with the deceased, threatened her, and chased her from her land with a hoe about two weeks before the killing. On the night of the attack, witnesses testified that DW2 came to the home he shared with the appellant, the appellant handed him a pounding stick and a knife through a window, and they left together. Responding to an alarm, witnesses found the deceased still alive; she named her children "Innocent and Musementa" as her assailants before dying about an hour later. DW2 separately pleaded guilty to the murder and claimed sole responsibility. The appellant was convicted and sentenced to 40 years' imprisonment by the High Court at Masaka on 24 May 2017.

Issues

  1. Whether grounds one and two of the appeal were too vague to satisfy Rule 66(2) of the Court of Appeal Rules and should be struck out.
  2. Whether the trial judge erred in relying on the deceased's dying declaration to find that the appellant participated in the killing.
  3. Whether the trial judge erred in disregarding the exculpatory evidence of the accomplice DW2.
  4. Whether the sentence of 40 years' imprisonment was harsh and excessive in the circumstances.

Orders

  • The preliminary objection is rejected.
  • The appeal partially succeeds.
  • The sentence of the trial Court is set aside.
  • The Appellant is sentenced to 40 years' imprisonment, less the 3 years spent on remand, to serve 37 years from the date of conviction (24th May 2017).

Key headnotes

Evidence — Dying Declarations — Admissibility and Need for Corroboration
A statement made by a deceased person as to the cause of or circumstances of their death is admissible under section 30 of the Evidence Act, but must be received with caution; while corroboration is not a strict rule of law, it is generally unsafe to base a conviction solely on a dying declaration unless there is satisfactory corroboration.
Evidence — Unreliable Dying Declaration — Appellant Cannot Rely on Disregarded Evidence
Where a trial court has disregarded a witness's account of a dying declaration as unreliable, an appellant cannot rely on that same disregarded evidence to advance an argument on appeal.
Criminal Law — Murder — Common Intention — Participation in the Killing
Where there is a common intention to commit an offence, it is immaterial who actually inflicts the injuries, as each party carrying out the common purpose is responsible for the acts of the others and is deemed to have committed the offence.
Evidence — Accomplice Evidence — Rejection of Exculpatory Testimony
A trial judge is entitled, after evaluating the evidence as a whole, to disbelieve and disregard the exculpatory testimony of an accomplice who unsuccessfully attempts to exonerate a co-offender, particularly where it is contradicted by credible corroborating evidence.
Criminal Procedure — Sentencing — Failure to Consider Mitigating Factors
Where a court fails to consider the mitigating factors presented before it when passing sentence, the sentence is illegal and an appellate court may set it aside and re-sentence under section 11 of the Judicature Act.
Criminal Procedure — Appellate Interference with Sentence — Principles
An appellate court will not interfere with a sentence imposed in the exercise of the trial court's discretion unless the sentence is manifestly excessive or so low as to amount to a miscarriage of justice, the trial court ignored a material consideration, or the sentence is wrong in principle.

Legislation cited (10)

  • Penal Code Act Cap 120 s.188
  • Penal Code Act Cap 120 s.189
  • Evidence Act Cap 6 s.30
  • Evidence Act s.132
  • Judicature Act s.11
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 30(1)(a)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 66(2)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Guideline 6(c)
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Guideline 9
  • Constitution of Uganda Article 23(8)

Cases cited (27)

  • Bogere and Another v Uganda [1998] UGSC 22
  • James Sawoabiri and Another v Uganda [1998] UGSC 34
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Cheptoyek Job v Uganda [2023] UGCA 69
  • Kasaija Daudi v Uganda [2014] UGCA 47
  • Etum v Uganda [1990] UGSC 8
  • Ayebare Eric v Uganda [2024] UGCA 269
  • Habib Salim v Uganda [2023] UGCA 139
  • Oyee George v Uganda [2009] UGCA 8
  • Niwamanya v Uganda [2020] UGCA 130
  • Waihi and Another v Uganda (1968) EA 278
  • Baguma Fred v Uganda [2005] UGSC 24
  • Wamutabaniwe Jamiru v Uganda [2018] UGSC 8
  • Bogere Mwanghwa Mohammed v Uganda [2025] UGCA 416
  • Bashasha Sharif v Uganda [2019] UGSC 65
  • Kaweesa Abdul v Uganda [2025] UGCA 38
  • Rwalinda John v Uganda [2017] UGSC 38
  • Kato Kajubi v Uganda [2021] UGSC 57
  • Kapinda Bonifance and Another v Uganda [2025] UGCA 89
  • Tindigwihura Mbahe v Uganda [1990] UGSC 19
  • Woolmington v DPP [1935] AC 452
  • Kamya Johnson Wavamunno v Uganda [2002] UGSC 46
  • Uganda v Sebaganda s/o Miruho [1997] HCB 7
  • S v Makwanyane 1995 (3) SA 391
  • Karisa Moses v Uganda [2019] UGSC 21
  • Ariho Abel v Uganda [2023] UGCA 227
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.