Wakilii

Tarinyebwa & Another v Uganda (Criminal Appeal 7 of 2000)

Supreme Court · [2000] UGSC 31 · 2000 ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal, which had confirmed a High Court conviction and sentence of death for aggravated robbery.
Decision
—

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a second appeal against conviction and a death sentence for aggravated robbery, the Court held that the appellants had not challenged in cross-examination the evidence that the complainant was cut with a panga, so the trial court was entitled to accept that a deadly weapon was used despite the panga not being tendered as an exhibit. The Court agreed that conditions favouring correct identification (bright moonlight, a prolonged struggle, and prior acquaintance) existed, and that the Court of Appeal had properly applied the identification tests. A ground abandoned below could not be revived, and the alibi could not be re-opened on second appeal without leave. (Final orders not contained in the provided text.)

Facts

On 1 September 1995 at about 2:00 a.m., intruders broke into the home of Francis Habasa (PW1) by smashing the door with a grinding stone. One intruder cut Habasa on the left knee with a panga. Habasa armed himself and fought the assailants outside for about ten minutes in bright moonlight, during which the intruders repeatedly demanded an Omega bag containing money. Habasa disarmed the second appellant of his panga, escaped, and raised an alarm. The intruders then entered the house, where Habasa's wife Kiconco (PW2) fled, and stole Shs. 70,000, a weighing scale, and a bicycle. Habasa was hospitalised for about a month and was left with a scar and walking on crutches. Both complainants knew the appellants beforehand, and Habasa had dealt with the first appellant in the coffee business shortly before the incident. The appellants raised alibis, which the trial court rejected after finding they were correctly identified.

Issues

  1. Whether the appellants were properly identified as the assailants in the robbery.
  2. Whether the prosecution proved that a deadly weapon (a panga) was used in the robbery, given that the panga was not tendered in evidence.
  3. Whether the appellants could, on a second appeal, argue a ground (and re-open the issue of alibi) not raised before or considered by the Court of Appeal.

Key headnotes

Evidence — Cross-examination — Failure to challenge material evidence in chief
Where a party declines to challenge material or essential evidence in cross-examination, the court may infer that the evidence is accepted, subject only to its being assailed as inherently incredible.
Criminal Procedure — Second Appeal — New grounds not raised before the first appellate court
A party may not, on a second appeal and without leave of the court, argue a point or ground that was not raised before or considered by the first appellate court.
Evidence — Identification — Need for supportive evidence and effect of number of witnesses
The need for supportive evidence of identification arises where the conditions favouring correct identification are difficult, irrespective of the number of identifying witnesses; a trial court must satisfy itself that the identification evidence is correct and free from the possibility of error.
Criminal Procedure — Defence of alibi — Burden of proof
An accused person bears no burden to prove an alibi; it is for the prosecution to destroy the alibi, and a properly established case of identification displaces it.

Legislation cited (2)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)

Cases cited (5)

  • G.L. Vidyarthi v P. Kakha (1957) EA 527
  • Warehousing & ... Jafferali (7961) EA 75
  • Katafemwa vs. ... (unreported)
  • Habr International (C) Ltd vs. Al-araki & Kassam & Others (SC) (unreported)
  • James Sowahiri and Another v Uganda (Criminal Appeal No. 5 of 1981)
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.