Wakilii

Isimbwa and Another v Ugandqa (Criminal Appeal 13 of 1991)

Supreme Court · [1993] UGSC 28 · 1993 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal to the Supreme Court against conviction and sentence for robbery by the High Court at Kampala.
Decision
Convictions quashed and sentences set aside; appellants ordered released forthwith unless held on some other ground.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court allowed the appeal and quashed the convictions for robbery. The convictions rested wholly on identification by a single witness, the evidence of recently stolen property having been rejected. The conditions for correct identification were unfavourable: the appellants were strangers to the witness, the first appellant's mouth and nose were covered, and the identification parade was valueless because the witness had already seen both appellants in police custody beforehand. No supporting evidence pointed to guilt, so the danger of mistaken identity was not eliminated. The appellants' alibis therefore raised a reasonable doubt to be resolved in their favour, and the prosecution had not proved the case beyond reasonable doubt.

Facts

On the night of 29 December 1988 at Nakasero, the complainant (PW1), a widow, was robbed by a gang of armed men who threatened to use a gun and took a large quantity of household property and cash. The robbery lasted about one and a half hours in a flat lit by electric light in both the sitting and bedroom. Some stolen articles were later recovered around Kampala, including items found at the house of a co-accused. PW1 claimed to have identified the two appellants at the scene and later at an identification parade held at Wandegeya Police Station on 9 January 1989. The appellants were strangers to her, seen for the first time during the robbery, and the first appellant had covered his mouth and nose with a cloth. PW1 admitted she had seen both appellants at the police station, in the hands of the police, before the parade was conducted. Each appellant raised an alibi. The trial court rejected the evidence that stolen property was recovered from the first appellant's possession, leaving identification by PW1 as the sole basis of conviction.

Issues

  1. Whether the conditions for correct identification of the appellants by a single witness existed at the scene of the robbery.
  2. Whether an identification parade retains any evidential value where the witness had seen the suspects in police custody beforehand.
  3. Whether the prosecution adduced sufficient evidence to destroy the appellants' alibis.
  4. Whether the convictions, resting solely on single-witness identification evidence, were safe.

Orders

  • Appeal allowed.
  • Conviction against each appellant quashed.
  • Sentences set aside.
  • Appellants to be released forthwith unless held on some other ground.
  • Judgment to be brought to the attention of the Attorney General regarding police failures in conducting identification parades.

Key headnotes

Identification — Conviction on a single identifying witness — Need for supporting evidence and caution
A conviction may rest on the evidence of a single identifying witness only where the trial judge warns himself and the assessors of the special need for caution, closely examines the circumstances of the identification, and, where conditions favouring correct identification are difficult, is satisfied by other evidence pointing to guilt that the identification is free from the possibility of error.
Identification — Identification parade — Prior sighting of suspect in police custody
An identification parade is rendered valueless where the witness has been shown or has seen the suspect in the hands of the police before the parade is conducted, and no evidential value can be placed on identification made at such a parade.
Defence of alibi — Burden of disproof on prosecution
Where an accused raises a defence of alibi he does not bear the burden of proving it; the prosecution must adduce evidence to destroy the alibi, and where the only evidence against the accused is unreliable identification, the alibi raises a reasonable doubt which must be resolved in the accused's favour.

Legislation cited (4)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Penal Code Act s.273(1)(h)
  • Penal Code Act s.298(1)

Cases cited (10)

  • Abdala Bin Wendo and Another v R (1953) 20 EACA 166
  • Roria v Republic (1967) EA 583
  • Tomasi Omukono and Another v Uganda (Criminal Appeal No. 4 of 1977)
  • George William Kalyesubula v Uganda (Criminal Appeal No. 16 of 1977)
  • Fabiano Olukudo v Uganda (Criminal Appeal No. 24 of 1977)
  • Abudala Nabulere and 2 Others v Uganda (Criminal Appeal No. 9 of 1979)
  • Moses Kasana v Uganda (Criminal Appeal No. 12 of 1981)
  • R v Mwango s/o Mana (1936) EACA 29
  • Sentale v Uganda (1968) EA 365
  • Nabulere and 2 Others v Uganda (1979) HCB 77
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.