Wakilii

Patrick Kasolo & 5 others v Uganda [1990] UGSC 7

Supreme Court · 1990 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal to the Supreme Court from a High Court conviction and death sentence for aggravated robbery
Decision
Convictions of four appellants upheld; convictions of two appellants (Naika and Kanyolo) quashed, their death sentences set aside, and those two ordered set free.

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Holding

The Supreme Court partly allowed the appeal of six men convicted of aggravated robbery and sentenced to death. The court held that where the same eyewitnesses were proved mistaken about an accused they claimed to know (and who was acquitted), it was unsafe to convict another accused on their identification alone unless corroborated by an independent witness. For four appellants, identification by an independent eyewitness together with corroborated accomplice evidence and the finding of an accomplice's body at the scene sustained the convictions. For two appellants, identified only by the discredited or non-recognising witnesses, the evidence did not prove participation beyond reasonable doubt, so their convictions were quashed and death sentences set aside.

Facts

During the night of 22 March 1984 at Nakyaka village, Kamuli District, a gang attacked the home of Nasana Mubi, shot him in the abdomen and carried away cash and property. As the gang retreated they shot people answering the alarm, leaving four dead and two seriously injured. Nine people were jointly indicted with one count of aggravated robbery, four counts of murder and two of attempted murder. All were acquitted on the murder and attempted murder counts; three were also acquitted on robbery. Six were convicted of robbery and sentenced to death. Identification rested on three eyewitnesses (Mubi, his wife Mukyala and Magumba), some of whom claimed prior acquaintance with the assailants, and on the partly-accepted evidence of a co-accused, Musisi. The same witnesses had wrongly identified Kalangala, whom they claimed to know but who was acquitted. The body of Byekwaso, said to have travelled with the gang, was found at the scene.

Issues

  1. Whether the lighting and other conditions at the scene favoured correct identification of the assailants.
  2. Whether it was safe to convict on the identification evidence of witnesses who were proved mistaken about an accused they claimed to know.
  3. Whether the co-accused's accomplice evidence was sufficiently corroborated to sustain the convictions.
  4. Whether the appellants' defences of alibi were properly rejected.

Orders

  • Appeals of Kasolo, Ikuluba, Babalanda and Musisi dismissed.
  • Appeals of Kanyolo and Naika allowed.
  • Convictions of Kanyolo and Naika quashed and their death sentences set aside.
  • Kanyolo and Naika to be set free forthwith unless otherwise legally held.

Key headnotes

Evidence — Identification — Recognition witnesses proved mistaken about an acquitted accused
Where eyewitnesses are shown to have been mistaken about an accused they claimed to recognise from before, it is unsafe to base a conviction of another accused on their identification evidence unless it is corroborated by an independent and reliable witness.
Evidence — Accomplice evidence — Need to direct mind to accomplice nature and seek corroboration
A court relying on the evidence of a co-accused must specifically direct its mind to the accomplice nature of that evidence, treat it with caution, and look for independent corroboration on a material particular linking the accused to the offence before it may sustain a conviction.
Criminal Procedure — Identification parade — Witnesses identifying persons known before the incident
It is irregular to ask witnesses to pick out at an identification parade persons whom they have already stated they knew before the incident.
Criminal Procedure — Indictment — Joinder of capital counts in one indictment
It is undesirable to face an accused with a multiplicity of grave charges, such as murder, robbery and attempted murder, in a single indictment; the prosecution should concentrate on the capital offences or include lesser offences only as alternative charges.
Criminal Procedure — Cross-examination — Effect of failure to cross-examine
A failure to cross-examine a witness means that the witness's evidence is not challenged; the proper procedure is to put the disputed and correct version to the witness for comment.
Criminal Procedure — Alibi — Rejection where identification accepted
Once a court properly accepts the evidence identifying an accused, it is bound to reject a defence of alibi that raises no reasonable doubt.

Legislation cited (4)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Penal Code Act s.183
  • Penal Code Act s.197(a)

Cases cited (3)

  • Patrisi Ozia v R [1957] EA 36
  • Morjaria v Republic [1972] EA 10
  • Yowana Sebuzukira v Uganda [1965] EA 684
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.