Wakilii

Nalongo Naziwa Josephine v Uganda (Criminal Appeal 35 of 2014)

Supreme Court · [2018] UGSC 27 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal, which had upheld a High Court conviction for kidnap with intent to murder and an 18-year sentence
Decision
Appeal dismissed as incompetent; conviction for kidnap with intent to murder and 18-year sentence upheld

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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

The Supreme Court dismissed the appeal as incompetent because the grounds attacking section 243(2) of the Penal Code Act were entirely fresh, having never been raised or determined in the trial court or the Court of Appeal. The Court held that a constitutional challenge to the presumption belonged before the Constitutional Court, which has original jurisdiction. Commenting nonetheless, it found nothing illegal or draconian in the presumption that an accused who kidnaps a person not seen or heard of for six months is presumed to have intended murder; Article 28(4)(a) and Evidence Act section 105 permit placing on an accused the burden of proving facts within their peculiar knowledge, consistently with the presumption of innocence. Conviction and sentence upheld.

Facts

The appellant met Nanyonga Masitula, mother of the three-month-old victim Peter Sematimba, at church on 26 March 2006. The appellant offered Masitula a job and the next day took her to Cooper Complex in Kampala, ostensibly to meet the appellant's husband. The appellant offered to carry the baby, then disappeared with the child, who has never been seen since. Masitula reported the matter to police. About a month later she saw the appellant at a counselling venue, reported to nearby police, and the appellant was arrested and charged with kidnap with intent to murder. The appellant denied the allegations. The High Court convicted her and sentenced her to 18 years' imprisonment, and the Court of Appeal upheld the conviction and sentence.

Issues

  1. Whether, on a second appeal, the appellant could raise grounds challenging the constitutionality and legality of section 243(2) of the Penal Code Act that were not raised or determined in the lower courts.
  2. Whether the statutory presumption of intention and knowledge under section 243(2) of the Penal Code Act is illegal or draconian.
  3. Whether the statutory presumption is consistent with the presumption of innocence under Article 28(3)(a) of the Constitution.

Orders

  • The appeal is dismissed.
  • The judgment and orders of the Court of Appeal are upheld and maintained.

Key headnotes

Criminal Procedure — Appeals — Fresh grounds on a second appeal
On a second appeal an appellant cannot raise matters that were not raised, considered and determined by the trial court and the first appellate court; grounds framed on the memorandum of appeal must emanate from the decision and proceedings of the lower court, and an appeal founded on entirely fresh grounds is incompetent.
Constitutional Law — Jurisdiction — Original jurisdiction of the Constitutional Court
A challenge to the constitutionality of a statutory provision must be brought before the Constitutional Court, which has original jurisdiction in matters of constitutional interpretation; such a challenge cannot be investigated and determined by the Supreme Court on appeal.
Evidence — Presumptions — Statutory presumption of intent under Penal Code Act section 243(2)
Where the prosecution proves that the accused kidnapped a victim who is thereafter not seen or heard of for six months or more, section 243(2) of the Penal Code Act legitimately presumes the accused had the intention and knowledge that the victim would be murdered; the presumption is rebuttable by the accused disclosing the victim alive and is neither illegal nor draconian.
Constitutional Law — Presumption of innocence — Reverse burden of proving particular facts
The presumption of innocence under Article 28(3)(a) of the Constitution is not infringed where, under Article 28(4)(a) and section 105 of the Evidence Act, the law requires an accused person to prove particular facts that are especially within their own knowledge.

Legislation cited (6)

  • Penal Code Act s.243(1)(a)
  • Penal Code Act s.243(1)(b)
  • Penal Code Act s.243(2)
  • Constitution of Uganda Article 28(3)(a)
  • Constitution of Uganda Article 28(4)(a)
  • Evidence Act s.105

Cases cited (2)

  • Fang Min v Belex Tours and Travel Limited (Civil Appeal No. 6 of 2013)
  • Prudential Insurance Comp. v. Moore, 197 Ind. 50, 149 N.E. 718 (Ind. 1925)
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.