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Kagende v Uganda (Criminal Appeal 55 of 2020)

Supreme Court · [2022] UGSC 16 · 2022 Conviction Upheld; Sentence Varied ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal against conviction and sentence, with an interlocutory application for leave to adduce additional evidence
Decision
Conviction for aggravated robbery upheld; sentence of 12 years set aside and appellant resentenced to 11 years and 11 months' imprisonment after deduction of remand period.

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Holding

The Supreme Court dismissed the appellant's application to adduce additional evidence, holding the letter was credible but irrelevant to the offence of aggravated robbery and brought after undue delay. On the merits, it upheld the conviction on the doctrine of recent possession, refusing to disturb concurrent findings on the unexplained possession of a stolen phone. Although the courts below misdirected themselves on the alibi (assessing the date of arrest rather than the offence), conviction stood on recent possession. The Court found the sentence illegal for failing to deduct remand time per Rwabugande, set it aside, and resentenced the appellant to 11 years and 11 months after deducting 4 years and 1 month on remand.

Facts

On 24 June 2013 at Muguluka Trading Centre, the appellant and three other men dressed in army uniform manned a roadblock and stopped a vehicle bound for Kamuli District. The occupants were ordered out and made to surrender their bags, phones and money, after which the gang drove off with the vehicle. On investigation the appellant was arrested and found in possession of eleven SIM cards registered in different names, three mobile phones, and clothing resembling army uniform. One of the phones, a Techno model with a broken screen, was identified as belonging to PW5, a victim of the robbery. The appellant gave conflicting explanations for the phones' ownership, and his witness (DW2) gave an account about retrieving ownership receipts that was not corroborated. The appellant raised an alibi that he was with his wife in Gayaza on the date of the offence. At trial in the High Court he was convicted of aggravated robbery and sentenced to 12 years' imprisonment; the Court of Appeal upheld both conviction and sentence.

Issues

  1. Whether the appellant satisfied the established principles for leave to adduce additional evidence on appeal.
  2. Whether the Justices of Appeal erred in failing to properly evaluate the evidence of recent possession of stolen property.
  3. Whether the Justices of Appeal erred in relying on the evidence of the UPDF officer (PW7).
  4. Whether the Justices of Appeal erred in rejecting the appellant's defence of alibi.
  5. Whether the Court of Appeal upheld an illegal sentence by failing to deduct the period spent on remand.

Orders

  • Application for leave to adduce additional evidence dismissed.
  • Grounds 1 and 2 of the appeal fail.
  • Ground 3 (alibi) succeeds, but the conviction stands on the doctrine of recent possession.
  • Ground 4 succeeds; the sentence of 12 years' imprisonment is set aside as illegal.
  • Appellant resentenced to 16 years' imprisonment, less 4 years and 1 month spent on remand, to serve 11 years and 11 months from the date of conviction.
  • Save for grounds 3 and 4, the appeal fails and is dismissed; conviction upheld.

Key headnotes

Criminal Procedure — Additional Evidence on Appeal — Exceptional Circumstances
An appellate court may admit additional evidence only in exceptional circumstances: the evidence must be newly discovered despite due diligence, relevant to the issues, credible, likely to influence the result, supported by proof attached to the affidavit, and the application must be brought without undue delay.
Criminal Procedure — Supreme Court Rules — Interplay of Rule 30 and Rule 2(2)
Although Rule 30 of the Rules of the Supreme Court bars additional evidence on appeal in mandatory terms, Rule 2(2) overrides it and renders Rule 30 directory only, allowing fresh evidence to be admitted at that late stage in exceptional cases to meet the ends of justice.
Evidence — Doctrine of Recent Possession — Elements and Inference of Guilt
Before an inference of guilt may be drawn from recent possession of stolen property, the court must be satisfied that the property was found with the suspect, that it belongs to the complainant, that it was recently stolen, and that the suspect has given no plausible explanation for the possession.
Appeals — Concurrent Findings of Fact — Limited Interference
A second appellate court will not ordinarily interfere with concurrent findings of fact of the trial court and the first appellate court unless it is shown that the courts below were grossly wrong or misapplied principles of law.
Evidence — Defence of Alibi — Burden and Mode of Discrediting
Where an accused raises an alibi he bears no burden to prove it; the prosecution must destroy it by placing the accused at the scene of the crime at the material time, assessed on the evidence as a whole, with reference to the day the offence was committed rather than the day of arrest.
Sentencing — Deduction of Remand Period — Effect of Rwabugande
For sentences imposed after 3 March 2017, a sentencing court must arithmetically calculate the period spent on remand and subtract it from the sentence arrived at; a mere statement that remand time has been taken into account renders the resulting sentence illegal.
Appeals — Illegality Raised for the First Time — Power to Address
Once an illegality, such as an unlawful sentence, is brought to the attention of an appellate court it may be addressed even though raised for the first time on appeal, and the court may invoke its statutory powers to set aside and substitute an appropriate sentence.

Legislation cited (6)

  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Judicature Act s.7
  • Constitution of Uganda Article 23(8)
  • Rules of the Supreme Court Rule 2(2)
  • Rules of the Supreme Court Rule 30

Cases cited (9)

  • Kato Kajubi Godfrey v Uganda (Criminal Appeal No. 20 of 2014)
  • Attorney General v Paul K. Ssemwogerere & 2 Others (Constitutional Application No. 2 of 2004)
  • Katumba John Bosco & Senkungu John v Uganda (Criminal Appeal No. 34 of 1999)
  • Kazarua Henry v Uganda (Criminal Appeal No. 17 of 2015)
  • Kakooza Godfrey v Uganda (Criminal Appeal No. 3 of 2008)
  • Bogere Moses & Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Livingstone Kakooza v Uganda (Criminal Appeal No. 17 of 1993)
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.