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Nuuhu v Uganda (Criminal Appeal 3 of 2004)

Supreme Court · [2005] UGSC 32 · 2005 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal's confirmation of a High Court conviction for kidnapping with intent to murder
Decision
Appeal dismissed; conviction and sentence of 20 years' imprisonment for kidnapping with intent to murder upheld

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Holding

The Supreme Court dismissed the second appeal against conviction for kidnapping with intent to murder. It held that the Court of Appeal had properly re-evaluated the evidence and that the single identifying witness's account was corroborated under section 155 of the Evidence Act by her contemporaneous report to PW3. The omission of section 235(2) from the statement of offence did not occasion a miscarriage of justice, as the particulars conveyed the offence; the intent to murder was rightly presumed since the child had not been seen for over six months. The alibi was properly rejected. The court further held that, under section 5(3) of the Judicature Act, no appeal lies to the Supreme Court against severity of a lawful sentence.

Facts

The appellant and PW1 (his niece) lived together as husband and wife and produced a baby boy, Ibrahim Kibuka, who was about six months old. PW1 later left the appellant and moved in with her brother PW3. On the night of 24 October 1998, the appellant twice sent for PW1; on the second occasion she took the crying child with her. The appellant asked to hold the child as he had done before and PW1 handed him over. The appellant did not return the child; instead he entered a waiting special-hire vehicle and was driven away with the child. PW1 immediately returned to PW3, crying, and reported that the appellant had taken the child. The matter was reported to authorities and the appellant was later arrested. The child has never been seen alive again. The appellant denied the charge and raised an alibi, claiming he was at the Mosque praying and then at a friend's home. The trial judge believed the prosecution evidence, rejected the alibi, and convicted him.

Issues

  1. Whether the Court of Appeal failed to properly re-evaluate the evidence and erred in confirming that it was the appellant who kidnapped the child.
  2. Whether the evidence of the single identifying witness (PW1) was sufficiently corroborated under section 155 of the Evidence Act.
  3. Whether the specific intent to murder was proved where the indictment omitted reference to section 235(2) of the Penal Code Act.
  4. Whether the courts below erred in rejecting the appellant's defence of alibi.
  5. Whether an appeal lies to the Supreme Court against the severity of the sentence.

Orders

  • Appeal dismissed.

Key headnotes

Criminal Procedure — Second Appeals — Role of the Supreme Court in Re-evaluating Evidence
Except in the clearest of cases, the Supreme Court as a second appellate court is not required to re-evaluate the evidence in the manner of a first appellate court; it interferes only where the first appellate court has failed in its duty to scrutinise and re-evaluate the evidence.
Evidence — Corroboration — Single Identifying Witness — Former Statement under Section 155
A former statement made by a witness at or about the time the relevant fact took place, or before an authority legally competent to investigate it, is provable as corroboration of that witness's testimony under section 155 of the Evidence Act, and the production of a police report is not a precondition.
Criminal Law — Kidnapping with Intent to Murder — Presumption of Intent under Section 235(2) Penal Code Act
Where a kidnapped person is not seen or heard of for six months or more, the accused is presumed to have had the intention and knowledge required for kidnapping with intent to murder under section 235(2) of the Penal Code Act, and the prosecution is relieved of the further burden of proving that intent.
Criminal Procedure — Defects in Indictment — Omission from Statement of Offence
The omission of section 235(2) of the Penal Code Act from the statement of offence does not occasion a miscarriage of justice or prejudice the accused where the particulars of the offence sufficiently convey the offence charged.
Criminal Law — Defence of Alibi — Burden and Evaluation
An accused who raises a defence of alibi does not bear the burden of proving it; where the prosecution places the accused at the scene and the defence adduces evidence of presence elsewhere, the court must judicially evaluate both versions and give reasons for accepting one over the other.
Criminal Procedure — Appeals to the Supreme Court — Severity of Sentence
Under section 5(3) of the Judicature Act, an appeal to the Supreme Court against a sentence not fixed by law lies only on a matter of law and does not extend to the severity of the sentence, provided the sentence is lawful.

Legislation cited (6)

  • Penal Code Act s.235(1)(a)
  • Penal Code Act s.235(2)
  • Evidence Act s.155
  • Judicature Act s.6(1)(a)
  • Judicature Act s.5(3)
  • Trial on Indictment Decree s.22

Cases cited (11)

  • Mukoome Moses Bulo v Uganda (Criminal Appeal No. 12 of 1995)
  • Ibrahim Bilal v Uganda (Criminal Appeal No. 5 of 1995)
  • Abbasi & Anor v Uganda (Criminal Appeal No. 10 of 1995)
  • Bogere Charles v Uganda (Criminal Appeal No. 10 of 1997)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bogere Moses & Komba v Uganda (Criminal Appeal No. 1 of 1997)
  • Godfrey Tinkomarirwe & Anor v Uganda (Criminal Appeal No. 5 of 1986)
  • Ndaula John v Uganda (Criminal Appeal No. 22 of 2000)
  • Sekitoleko v Uganda [1967] EA 531
  • R v Johnson [1961] All ER 967
  • Leonard Aniseth v Republic [1963] EA 206
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.