Nuuhu Asuman Kibuuka v Uganda (Criminal Appeal 3 of 2004)

Supreme Court · [2005] UGSC 37 · 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 upheld.

The full judgment

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Holding

The Supreme Court dismissed the second appeal against conviction for kidnapping with intent to murder. The Court of Appeal had properly re-evaluated the evidence; PW3's evidence corroborated the single identifying witness's testimony under section 155 of the Evidence Act because her report was made at or about the time of the kidnapping. As the child had not been seen for over six months, the intention to murder was rightly presumed under section 235(2) of the Penal Code Act, and the omission of that sub-section from the statement of offence occasioned no miscarriage of justice. The alibi was rightly rejected, and section 5(3) of the Judicature Act bars an appeal against severity of sentence.

Facts

The appellant and PW1, his niece, lived together as husband and wife and had a son, Ibrahim Kibuka, aged about six months. In 1998 PW1 left the appellant's home. On the night of 24 October 1998 the appellant sent for PW1 twice; on the second occasion she took the crying child with her. When she handed the child to the appellant to hold, as he had done before, he did not return the child but entered a stationary special hire vehicle and was driven away with the child. PW1 returned crying and reported to her brother PW3 that the appellant had taken the child. The appellant could not be traced and was later arrested. The child has never been seen alive again. The appellant denied the charge and raised an alibi that he was at the mosque praying at the material time, supported by DW2. The trial judge rejected the alibi and convicted him of kidnapping with intent to murder.

Issues

Whether the Court of Appeal, as first appellate court, failed to properly re-evaluate the evidence and thereby erroneously confirmed the appellant's conviction.
Whether the prosecution proved that it was the appellant who kidnapped the child, given that identification rested on a single identifying witness requiring corroboration.
Whether the offence of kidnapping with intent to murder was proved, including the specific intent, notwithstanding the omission of section 235(2) of the Penal Code Act from the statement of offence.
Whether the Court of Appeal erred in rejecting the appellant's defence of alibi.
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; production of a police report is unnecessary where the witness testifies on oath and is cross-examined.

Criminal Law & Procedure — Kidnapping with intent to murder — Statutory presumption of intent under section 235(2) of the 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 stipulated in section 235(1), relieving the prosecution of the need to separately prove the intention to murder.

Criminal Law & Procedure — Indictment — Omission of a statutory sub-section from the statement of offence

Although it is desirable to include section 235(2) of the Penal Code Act in the statement of offence to inform the accused of the relevant ingredient, its omission does not occasion a miscarriage of justice or prejudice the accused where the particulars of the offence sufficiently convey the offence and its ingredients.

Criminal Law & Procedure — Defence of alibi — Burden of proof and evaluation

An accused person who raises a defence of alibi bears no burden of proving it; where the prosecution places the accused at the scene and the defence adduces evidence that he was elsewhere, the court must judicially evaluate both versions and give reasons why one is accepted over the other.

Criminal Law & Procedure — Appeal 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 not against the severity of the sentence; a lawful sentence cannot be impugned merely as harsh or excessive.

Legislation cited (6)

Penal Code Act s.235(1)(a)
Penal Code Act s.235(2)
Evidence Act s.155
Judicature Act s.5(3)
Judicature Act s.6(1)(a)
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)
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.