Wakilii

Kajubi v Uganda (Criminal Appeal 20 of 2014)

Supreme Court · [2021] UGSC 45 · 2021 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court against the Court of Appeal's confirmation of a murder conviction and life sentence following a retrial.
Decision
Appeal dismissed; conviction for murder and sentence of life imprisonment upheld.

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Cited — treatment unverified cited in 10 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 second appeal. It held that Rule 30(1) (no discretion to take additional evidence) is directory, being overridden by Rule 2(2), but the appellant failed the settled test for admitting fresh evidence. As a second appellate court confined to law, it found the Court of Appeal had properly re-evaluated the evidence: the inconsistencies in the accomplice testimony of PW7 and PW8 did not go to the root of the case and the worthless parts were severable; their evidence was corroborated, notably by phone records placing the appellant in Masaka and destroying his fabricated Jinja alibi. On sentence, remand deduction under Article 23(8) does not apply to life imprisonment, and the sentence was neither illegal nor excessive given the gruesome child sacrifice.

Facts

The appellant was indicted for the murder of a 12-year-old boy whose decapitated body, missing its head and private parts, was found in a swamp. At the first trial the High Court found no prima facie case and discharged him, amounting to an acquittal; on the prosecution's appeal the Court of Appeal quashed the acquittal and ordered a retrial. On retrial before Chibita J the appellant was convicted and sentenced to life imprisonment. The prosecution case rested on the evidence of PW7 and PW8, accomplices in whose home the killing took place, supported by MTN telephone print-outs showing near-daily contact between the appellant and PW7 and placing the appellant's phone within the Masaka area at the material time, contradicting his claim that he was in Jinja and that his phone had been stolen. The appellant did not report to police until two months after the murder despite knowing he was wanted. The trial court found the prosecution had proved every ingredient of murder except participation, which it found established. The Court of Appeal confirmed the conviction and sentence.

Issues

  1. Whether the Court should admit fresh evidence at the second appeal stage despite Rule 30(1) of the Supreme Court Rules.
  2. Whether the conviction founded on the accomplice evidence of PW7 and PW8 could stand given the inconsistencies and contradictions in their evidence and the alleged absence of sufficient corroboration.
  3. Whether the appellant's defence of alibi was properly rejected.
  4. Whether the sentence of life imprisonment was illegal or excessive for failing to account for time on remand, mitigating factors, and sentencing consistency.

Orders

  • Application to adduce fresh evidence disallowed.
  • Appeal dismissed.
  • Conviction and sentence of life imprisonment upheld.

Key headnotes

Statutory Interpretation — Mandatory v Directory Provisions — 'shall' read as directory
Although Rule 30(1) of the Judicature (Supreme Court Rules) Directions is couched in mandatory terms denying the Court discretion to take additional evidence, Rule 2(2), which by its terms overrides all other rules, renders Rule 30 directory, so that fresh evidence may be admitted in exceptional cases.
Evidence — Fresh Evidence on Appeal — Conditions for Admission
Additional evidence will only be admitted on appeal where it could not, with due diligence, have been produced earlier, is relevant and credible, would probably influence the result, is supported by an affidavit exhibiting the evidence, and is brought without undue delay; the standard is more stringent once a case has been completed on appeal.
Criminal Procedure — Second Appeal — Scope of Supreme Court's Jurisdiction
On a second appeal the Supreme Court is confined to matters of law or mixed law and fact and may interfere with concurrent findings of fact of the two lower courts only where they were not based on evidence or the courts applied wrong principles of law occasioning injustice.
Evidence — Credibility of Witnesses — Inconsistencies and Falsehoods — Severability
Only grave inconsistencies or contradictions going to the root of the case will lead to a witness's evidence being rejected; minor inconsistencies that do not affect the substance of the case should be ignored, and a court may sever and accept the credible part of a witness's testimony while rejecting the false part.
Evidence — Accomplice Evidence — Requirement of Corroboration
A court may convict on the uncorroborated evidence of an accomplice provided it warns itself of the danger, but corroboration, being independent evidence connecting the accused to the crime, renders it probable that the accomplice's account is true; accomplices may corroborate each other where independent supporting evidence exists.
Criminal Law — Defence of Alibi — Effect of a Fabricated Alibi
Proof that an accused's alibi is a deliberate fabrication not only destroys the alibi but also strengthens the prosecution evidence placing the accused at the scene of the crime; telephone print-outs placing a user within a mast's radius that includes the scene, taken with other evidence, can place the accused at the scene.
Criminal Procedure — Sentencing — Remand Deduction Inapplicable to Life Imprisonment
The constitutional requirement under Article 23(8) to take into account time spent on remand does not apply to a sentence of life imprisonment (or death), and an appellate court will not interfere with a sentence unless it is illegal, manifestly excessive, or so low as to amount to a miscarriage of justice, or a relevant matter was ignored.

Legislation cited (9)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Judicature Act s.5(3)
  • Criminal Procedure Code Act s.34
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.30(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.30(1)
  • Constitution of Uganda art.23(8)
  • Evidence Act

Cases cited (35)

  • Tigo Stephen v Uganda (Criminal Appeal No. 8 of 2009)
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Akbar Hussein Godi v Uganda (Criminal Appeal No. 3 of 2013)
  • Francis Bwalatum v Uganda- S.C. Cr. A. No. 30 of 2017
  • Obwalatum v Francis SC Crim Appeal No. 30 of 2015
  • Mulindwa James v Uganda (Criminal Appeal No. 23 of 2014)
  • Kazarwe Henry v Uganda (Criminal Appeal No. 17 of 2015)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Litako and Others v S (584/2013) [2014] ZASCA 54
  • Sitenda Sebalu v Sam Njuba and Another (Election Petition Appeal No. 26 of 2007)
  • Secretary of State for Trade and Industry v Langridge [1991] 3 All ER 591
  • Attorney General v Paul K. Ssemogere (Constitutional Application No. 2 of 2004)
  • Kakooza Godfrey v Uganda (Criminal Appeal No. 3 of 2008)
  • Milly Masembe v Sugar Corporation and Another (Civil Appeal No. 1 of 2000)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Ntambala Fred v Uganda (Criminal Appeal No. 34 of 2015)
  • Pandya v R (1957) EA 336
  • Okeno v Republic (1972) EA 32
  • Charles B. Bitwire v Uganda (Criminal Appeal No. 23 of 1985)
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Serapio Tinkamalirwe v Uganda (Criminal Appeal No. 27 of 1989)
  • Khatijabai Jiwa Hasham v Zenab d/o Chandu Nansi [1957] EA 38
  • Siduwa Were v Uganda [1964] EA 596
  • Gabula Bright Africa v Uganda (Criminal Appeal No. 19 of 1993)
  • Mattaka and Others v Republic [1971] EA 495
  • Twehangane Alfred v Uganda (Criminal Appeal No. 139 of 2001)
  • R v Baskerville (1916) 2 KB 658
  • Rameshwar vs V.A. (1952) SC. 54
  • R v Thorne (1976) 63 Cr App R 6
  • DPP v Kilbourne [1973] AC 729
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • Magezi Gad v Uganda (Criminal Appeal No. 17 of 2014)
  • Busiku Thomas v Uganda (Criminal Appeal No. 33 of 2011)
  • S v Jaipal 2005 (4) SA 581 (CC)
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.