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Nuuhi Asuman Kibuuka v Uganda (Criminal Appeal No. 3 of 2004)

Supreme Court · [2005] UGSC 35 · 2005 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court from the Court of Appeal's dismissal of an appeal against a High Court conviction for kidnapping with intent to murder
Decision
Appeal dismissed; conviction for kidnapping with intent to murder and sentence of 20 years' imprisonment confirmed.

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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; PW1's identification of the appellant was corroborated by her near-contemporaneous report to PW3, a former statement provable under section 155 of the Evidence Act. As the kidnapped child had not been seen or heard of for over six months, the intent to murder was rightly presumed under section 235(2) of the Penal Code Act, and omission of that sub-section from the statement of offence caused no miscarriage of justice because the particulars conveyed the charge. The alibi was properly rejected, and section 5(3) of the Judicature Act bars any appeal against severity of sentence.

Facts

The appellant and PW1, his niece, had lived together as husband and wife and had a son, Ibrahim Kibuka, aged about six months. PW1 later left the appellant and went to live with her brother PW3. On the night of 24 October 1998 the appellant sent for PW1 twice; on the second occasion she took the crying child with her. At the meeting place the appellant asked to hold the child, as he had done before, and PW1 handed him over. The appellant did not return the child; he entered a stationary special-hire vehicle and was driven away with the child. PW1 returned to PW3 crying that the appellant had taken the child. PW1 reported the matter and the appellant was later arrested. The child was never seen alive again. The appellant denied the charge and raised an alibi, claiming he was at the mosque praying and then at home, supported by DW2. The trial judge believed the prosecution, rejected the alibi, convicted the appellant and sentenced him to 20 years' imprisonment.

Issues

  1. Whether the Court of Appeal, as first appellate court, properly scrutinised and re-evaluated the evidence in confirming that it was the appellant who kidnapped the child.
  2. Whether the evidence of a single identifying witness (PW1) was sufficiently corroborated, including by a former statement under section 155 of the Evidence Act.
  3. Whether the intent to murder was proved, and whether the omission of section 235(2) of the Penal Code Act from the statement of the offence vitiated the conviction.
  4. Whether the appellant's defence of alibi was properly rejected.
  5. Whether an appeal lies to the Supreme Court against the severity of the sentence.

Orders

  • Appeal dismissed.

Key headnotes

Evidence — Corroboration — Former statement of a witness under section 155 of the Evidence Act
A former statement made by a witness relating to the same fact, at or about the time the 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.
Evidence — Identification — Single identifying witness — Corroboration of credible identification
The evidence of a single identifying witness may ground a conviction where the witness knew the accused beforehand and is found truthful and credible, and her identification is corroborated by a near-contemporaneous complaint.
Criminal Law & Procedure — Kidnapping with intent to murder — Statutory presumption of intent under section 235(2) Penal Code Act
Where a person kidnapped or detained is thereafter not seen or heard of within a period of six months or more, the accused is presumed under section 235(2) of the Penal Code Act to have had the intention and knowledge required for kidnapping with intent to murder.
Criminal Law & Procedure — Indictment — Omission of a sub-section from the statement of offence
The omission of section 235(2) from the statement of the offence does not occasion a miscarriage of justice or prejudice the accused where the particulars of the offence sufficiently convey to him the offence with which he is charged.
Criminal Law & Procedure — Defence of alibi — Burden of proof and judicial evaluation
An accused who raises a defence of alibi bears no burden of proving it; where the prosecution places the accused at the scene and the defence asserts he was elsewhere, the court must evaluate both versions judicially and give reasons for accepting one and rejecting the other.
Criminal Law & Procedure — Appeals — No appeal to the Supreme Court against 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.

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 & Kamba v Uganda (Criminal Appeal No. 1 of 1997)
  • Godfrey Tinkamarirwe & Anor v Uganda (Criminal Appeal No. 5 of 1986)
  • Ndaiila 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.