Wakilii

Nasolo v Uganda [2001] UGSC 14

Supreme Court · 2001 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from Court of Appeal affirming a High Court murder conviction and death sentence
Decision
Appeal dismissed; conviction for murder and sentence of death upheld.

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Holding

The Supreme Court dismissed the appeal against a murder conviction and death sentence. Although it was an error to try the appellant on an indictment naming Fina, an uncommitted person, without amendment, the conviction was saved by s.137 of the Trial on Indictments Decree because the error occasioned no failure of justice. Fina, an accessory after the fact and a child of tender years, should have been treated as an accomplice, but the trial judge's failure to warn himself of the need for corroboration was not fatal because corroboration in fact existed in the appellant's diversion of the search party and her discredited alibi. The witness's earlier lies did not destroy her credibility.

Facts

An 11-year-old baby-sitter, Fina, took a six-month-old baby to the appellant's home to play, leaving the child seated in a basin in the compound. When Fina returned she met the appellant emerging from a pit latrine; the appellant told Fina she had thrown the baby into the latrine and warned her, on pain of being shot by the baby's father, not to tell anyone. Fina kept silent until arrested. When the baby went missing, the appellant denied knowledge of his whereabouts and, during the search, told the search team not to search the latrine because she had only thrown an old red plate into it. The team later found the baby's body in the latrine, dressed in a red dress; death was caused by aspiration pneumonia. The appellant raised an alibi, which the trial judge rejected, convicting her of murder.

Issues

  1. Whether the appellant's conviction was vitiated by the trial proceeding on an indictment that named Fina Nalunkuma, who had not been committed for trial, without the indictment being amended.
  2. Whether Fina Nalunkuma was an accomplice and a child of tender years whose evidence required corroboration, and whether the trial judge's failure to warn himself of the danger of acting on it without corroboration was fatal to the conviction.
  3. Whether the courts below erred in failing to evaluate the evidence as a whole and in not adequately considering discrepancies on the record.

Orders

  • Appeal dismissed.
  • Records of criminal appeals to the Supreme Court must always include records of the appellant's committal proceedings in the Magistrate's Court.

Key headnotes

Criminal Procedure — Committal for Trial — Effect of Trying on an Indictment Naming an Uncommitted Person
Under section 1 of the Trial on Indictments Decree, committal by a magistrate's court is an essential pre-condition to trial in the High Court; a person named in an indictment who has not been committed is not an accused, and proceeding against a committed accused on an indictment that also names an uncommitted person, without amendment, is an error.
Criminal Procedure — Irregularities — Section 137 Trial on Indictments Decree — Failure of Justice
An error, omission or irregularity in an indictment or proceedings does not justify reversing a conviction on appeal unless it has in fact occasioned a failure of justice; an irregularity in trying the appellant on an indictment naming an uncommitted co-suspect is cured where no failure of justice resulted.
Evidence — Accomplices — Definition — Accessory After the Fact
There is no single formal definition of an accomplice; whether a witness is an accomplice is deduced from the facts of each case, and a witness who, after the offence, conceals it to protect the offender is an accessory after the fact and should be treated as an accomplice witness.
Evidence — Corroboration — Accomplice Evidence — Failure to Warn
Where a witness ought to have been treated as an accomplice, the trial court's failure to warn itself and the assessors of the danger of convicting on uncorroborated accomplice evidence is not fatal to the conviction where corroboration implicating the accused in fact exists on the record.
Evidence — Child of Tender Years — Sworn Evidence — Corroboration as a Matter of Prudence
Although the sworn evidence of a child of tender years does not as a matter of law require corroboration, a court should, as a matter of prudence, either find corroboration or warn itself of the danger of acting without it; failure to do so is not fatal where corroboration in fact exists.
Evidence — Credibility — Witness Who Has Lied — Substantial Truthfulness
A trial judge may find a witness substantially truthful even though the witness has lied in some particular respect, especially where the earlier untruths are explained, and minor inconsistencies that do not point to deliberate untruthfulness do not warrant rejecting the evidence.

Legislation cited (9)

  • Penal Code Act s.183
  • Penal Code Act s.184
  • Trial on Indictments Decree 1971 s.1
  • Trial on Indictments Decree 1971 s.38(3)
  • Trial on Indictments Decree 1971 s.137
  • Magistrates' Courts Act 1970 s.163A
  • Oaths Act s.11
  • Oaths Act s.12
  • Rules of the Supreme Court rule 81

Cases cited (16)

  • Davies v DPP [1954] 1 All ER 504
  • Canisio s/o Wahva v R (1956) 23 EACA 453
  • M'Kanyoro (M'Nduyo) v R (1962) EA 110
  • Mushikoma Watete and Others v Uganda (Criminal Appeal No. 10 of 2000)
  • D.R. Khetem v R (1956) EA 563
  • Alfred Tatar v Uganda (Criminal Appeal No. 167 of 1969)
  • Uganda v Dusman Sabun [1981] HCB 1
  • Oloo s/o Gai v R (1960) EA 86
  • Kerville (1916) Z.K.B. 658
  • Isaya Bikuma v Uganda (Criminal Appeal No. 24 of 1989)
  • Nyasani s/o Bichana v R (1958) EA 190
  • Kibageny Arap Kolil v R (1959) EA 92
  • R v Leonard bin Ngimbwa (1943) 10 EACA
  • R. V. Jennings 1912, Cr. Appl. Rep. 2428
  • R v Dixon (1925) 19 Cr App Rep 36
  • R v Mohamed Farid (1945) 30 Cr App Rep 168
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.