Wakilii

No. 441 P.C I smail Kisegerwa & Anor v Uganda [1978] UGSC 6

Supreme Court · 1978 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for manslaughter and sentence of 15 years' imprisonment
Decision
Appeals dismissed; convictions for manslaughter and sentences of 15 years' imprisonment upheld.

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Holding

Two police officers who shot and killed an unarmed fleeing suspect during an attempted arrest were properly convicted of manslaughter. The Court held that a killing in the course of effecting arrest is justified only where there is apparent necessity; here there was none, so the force used was unreasonable and excessive. Although the appellants' initial intention to arrest was lawful, a common unlawful intention developed when they opened fire, so s.22 of the Penal Code applied. Where common intention applies it is unnecessary to find which appellant fired the fatal shot. The death being a probable consequence of their unlawful act, both were rightly convicted; the 15-year sentence was not disturbed. Appeals dismissed.

Facts

On the night of 5–6 March 1976, the two appellants, police officers attached to the Naguru Public Safety Unit, were on patrol, each armed with a self-loading rifle and 20 rounds of ammunition. Near 3 a.m. at Wandegeya they saw two men standing at the door of a house and suspected they were about to commit burglary. When the appellants stopped their vehicle, the two men ran. The appellants gave chase and opened fire, shooting one man, Paul Serwanga, a Makerere law student, dead. It could not be established whose shot killed the deceased. One appellant had examined the door and found no signs of breaking; no one's property and no one's life was in danger, and the suspects were unarmed and carried no offensive weapons. Each appellant admitted firing one shot. Medical evidence showed the deceased was shot at close range. The appellants raised a defence of justifiable homicide, which the trial judge rejected, convicting them of manslaughter rather than murder.

Issues

  1. Whether the trial judge was right to convict the appellants of manslaughter, given their claim that the force used to effect arrest was reasonable.
  2. Whether the doctrine of common intention applied where the appellants' original purpose to arrest the suspects was lawful.
  3. Whether the trial judge was required to determine which appellant fired the fatal shot before convicting both of manslaughter.
  4. Whether the sentence of 15 years' imprisonment was harsh and excessive.

Orders

  • The appeal of each appellant is dismissed.

Key headnotes

Criminal Law — Use of Force in Effecting Arrest — Apparent Necessity for Killing
A killing in the course of preventing crime or arresting offenders is justified only where there is an apparent necessity to do so; proceeding to the extremity of causing death to effect an arrest can be justified only in exceptional cases where the evil to be averted is so great that a reasonable person would feel justified in taking life.
Criminal Law — Excessive Force in Arrest — Liability for Manslaughter
Where excessive or unreasonable force is used in effecting an arrest and death ensues, the killing is either murder or manslaughter; absent malice aforethought, the unreasonable and unnecessary use of fatal force to arrest unarmed, non-dangerous suspects constitutes manslaughter.
Criminal Law — Common Intention — Development in Course of Events
Under s.22 of the Penal Code a common intention to pursue an unlawful purpose need not be pre-arranged and may be inferred from the parties' presence, actions and failure to dissociate; it is immaterial that the original common intention was lawful, provided an unlawful purpose develops in the course of events.
Criminal Law — Common Intention — No Need to Identify Actual Perpetrator
Where the doctrine of common intention applies, it is unnecessary to make a finding as to which participant actually caused the death; each participant is liable where the death was a probable consequence of the common unlawful act.
Criminal Law & Procedure — Sentencing — Appellate Interference
An appellate court will not interfere with a sentence where the trial judge has given cogent reasons, the offence is grave, and there are no mitigating circumstances warranting a lesser, less deterrent sentence.

Legislation cited (2)

  • Penal Code Act s.18
  • Penal Code Act s.22

Cases cited (8)

  • Muhidini v R [1962] E.A. 388
  • R v Tabulayenka s/o Kirya and Others [1943] 10 E.A.C.A. 51
  • Andrea Mutebi and Another v Uganda (Criminal Appeal No. 144 of 1975)
  • R v Okute [1941] 8 E.A.C.A. 80
  • Wanjiro Wamiro v R [1955] 22 E.A.C.A. 521
  • R v Salmon (1880) 6 Q.B.D. 79
  • Gitau v R [1967] E.A. 449
  • Mungai'a case
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.