Wakilii

Bwefugye & Another v Uganda (Criminal Appeal 52 of 2016)

Supreme Court · [2018] UGSC 65 · 2018 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal against conviction for murder and sentence
Decision
Convictions for murder upheld; 30-year sentences set aside and substituted with 25 years 10 months (1st appellant) and 27 years 10 months (2nd appellant) after deducting remand periods.

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Holding

The Supreme Court, sitting as a second appellate court, declined to disturb the concurrent findings of the High Court and Court of Appeal, holding there was sufficient evidence to support the appellants' identification, participation and common intention in the murder; minor contradictions did not go to the root of the case. The appeal against conviction was dismissed. The appeal against sentence partly succeeded: the Court of Appeal had erred by not specifying and deducting the time each appellant spent on remand, as Article 23(8) and Rwabugande require. The 30-year sentences were set aside and re-imposed as 25 years 10 months (1st appellant) and 27 years 10 months (2nd appellant).

Facts

The deceased, Mishaki Rushoke, was murdered at about 1.00pm on a Monday in June 2005 while grazing cattle on his land. PW2, the deceased's son, was grazing nearby and saw the 2nd appellant on an ant-hill observing them for about twenty minutes; shortly after learning his father had been killed, he met the 2nd appellant running through the bush carrying an earth spear and a hammer, with a blood-stained shirt, who did not answer when asked why he was running. Prosecution witnesses identified both appellants hurrying away from the area of the scene in broad daylight; the appellants were well known to the witnesses, who lived in the same village. There was a long-standing grudge between the parties over land. There was no direct evidence of how the deceased died, but the courts below found the circumstantial evidence established that both appellants participated in the killing with a common intention. The appellants raised defences of alibi and challenged the consistency of the identification evidence.

Issues

  1. Whether the Court of Appeal erred in upholding the appellants' conviction for murder based on weak circumstantial evidence said to be marred by contradictions and inconsistencies.
  2. Whether the prosecution evidence sufficiently established the participation of each appellant and a common intention to commit the murder.
  3. Whether the sentence of 30 years' imprisonment was illegal for failing to specify and deduct the period spent on remand as required by Article 23(8) of the Constitution.

Orders

  • Appeal against conviction dismissed.
  • Appeal against sentence partly succeeds.
  • Sentences imposed by the Court of Appeal set aside.
  • 1st appellant to serve 25 years and 10 months imprisonment.
  • 2nd appellant to serve 27 years and 10 months imprisonment.
  • Sentences to run from the date of conviction, 11 October 2010.

Key headnotes

Criminal Law & Procedure — Appeals — Second Appeal — Concurrent Findings of Fact
A second appellate court will not interfere with the concurrent findings of fact of the trial court and the first appellate court where there is evidence to support those findings; it may do so only where there was not enough evidence to support the findings.
Evidence — Circumstantial Evidence and Inconsistencies — Contradictions Not Going to the Root
Contradictions and inconsistencies in prosecution evidence that are minor and do not go to the root of the case will not vitiate a conviction founded on circumstantial evidence that proves participation beyond reasonable doubt.
Constitutional Law — Article 23(8) — Period Spent on Remand Must Be Specified and Deducted
Under Article 23(8) of the Constitution the period a convict has spent on remand must be specifically stated and arithmetically deducted from the sentence imposed; it is insufficient for a court merely to state that the remand period has been taken into account without specifying it.
Criminal Law & Procedure — Sentencing — Appellate Interference with Sentence
An appellate court will alter a sentence imposed by the trial court only where the lower court acted on a wrong principle, overlooked material factors, or the sentence is manifestly excessive in the circumstances of the case.
Criminal Law & Procedure — Appeals to the Supreme Court — Sentence Limited to Questions of Law
Appeals to the Supreme Court in respect of sentence are restricted to matters of law, including the legality of the sentence, and a complaint that a sentence is merely manifestly harsh and excessive cannot be entertained on second appeal.

Legislation cited (4)

  • Judicature Act s.6(3)
  • Judicature Act s.5(3)
  • Constitution Article 23(8)
  • Court of Appeal Rules r.30(1)

Cases cited (10)

  • Nyanzi v Uganda [1999] EA 228
  • Okale v R [1965] EA 555
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Ogalo s/o Owuora v R (1954) 21 EACA 270
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 142 of 2001)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Obote William v Uganda (Criminal Appeal No. 12 of 2014)
  • Woolmington v DPP [1935] AC 44
  • Sekitoleko v Uganda [1967] EA 531
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.