Wakilii

Kakubi & Another v Uganda (Criminal Appeal 3 of 2009)

Supreme Court · [2022] UGSC 18 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court against conviction for murder, from the Court of Appeal's affirmation of a High Court conviction
Decision
Appeal against conviction dismissed; conviction and the Court of Appeal's substituted 25-year sentence upheld.

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Cited — treatment unverified cited in 1 (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 appeal against conviction for murder. It held that the identification of the appellant by two grandchildren of the deceased met the Abdalla Nabulere test, the witnesses knowing him as a neighbour, with moonlight and kitchen fire, corroborated by the deceased's dying declaration naming him; failure to immediately mention his name did not weaken the identification because independent corroboration existed. The alibi was destroyed once the prosecution placed the appellant at the scene. The fair-trial complaint failed: defence counsel had closed the defence case after three witnesses, no fixed number of witnesses is required (Evidence Act s.133), and the prosecution was not obliged to call the named persons.

Facts

On 13 August 2004 at about 8.00 pm at Kangwe village, Bushenyi District, the deceased Ntegerize Jolly stepped out of her kitchen to fetch water and was attacked by two men. Her grandchildren PW3 and PW7, alerted by her screams, saw the two appellants attacking her; the first appellant, armed with a panga, grabbed and cut her. The grandchildren, who knew the appellants as neighbours, witnessed the attack by moonlight and kitchen firelight, and heard the deceased cry out naming Kakubi and David as her killers. The appellants had earlier been heard threatening to kill the deceased, whom they accused of witchcraft; PW2 had reported a death threat to the Local Council before the killing. The deceased was found dead in a pool of blood with cuts to her arm and the back of her neck. The appellants were indicted for murder. They raised an alibi that they were attending funeral rites some kilometres away, but prosecution evidence placed them near and at the scene.

Issues

  1. Whether the conviction was based on unsatisfactory identification evidence given the conditions prevailing at the time of the offence.
  2. Whether the Court of Appeal erred in upholding the conviction on the circumstantial evidence of prior death threats.
  3. Whether the appellant's defence of alibi was wrongly rejected where it was said not to have been rebutted by the prosecution.
  4. Whether the Court of Appeal failed in its duty as a first appellate court to re-appraise the whole evidence, and whether the appellant was denied a fair trial.

Orders

  • Appeal dismissed.
  • The judgment and orders of the Court of Appeal upheld.

Key headnotes

Criminal Evidence — Identification — Quality of Identification in Difficult Conditions
Where a case substantially depends on identification that the accused disputes, the court must closely examine the circumstances in which the identification was made — the length of observation, distance, light, and the witness's familiarity with the accused; where the quality is good, as where identification is made over a long period or in satisfactory conditions by a person who knew the accused before, a court may safely convict.
Criminal Evidence — Identification — Failure to Name Assailant Immediately
A witness's failure to immediately mention the names of identified attackers to rescuers does not weaken the identification evidence where there is other independent evidence, such as a dying declaration, corroborating that identification.
Criminal Evidence — Circumstantial Evidence — Inference of Guilt
Before an inference of guilt is drawn from circumstantial evidence, the court must be satisfied that there are no co-existing circumstances that would weaken or destroy that inference.
Criminal Procedure — Defence of Alibi — How an Alibi is Discredited
An alibi is discredited where the prosecution adduces evidence that squarely places the accused at the scene of the crime, or that directly negates the accused's account of being elsewhere; once the prosecution places the accused at the scene, the alibi is destroyed and the accused bears no duty to prove its truthfulness.
Criminal Evidence — Number of Witnesses — Sufficiency of a Single Witness
Under section 133 of the Evidence Act no particular number of witnesses is required to prove any fact, and the testimony of a single witness may suffice; neither the prosecution nor the court can be faulted for not calling a particular witness, the defence being free to call such persons itself.
Criminal Procedure — Fair Trial — Closure of Defence Case by Counsel
An accused cannot complain that his right to a fair trial was infringed by the non-appearance of an intended further witness where his own counsel informed the court that the defence case was closed after the witnesses who had testified.

Legislation cited (9)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Evidence Act s.133
  • Trial on Indictments Act s.39
  • Supreme Court Rules r.66
  • Supreme Court Rules r.70
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.3(a)(c)(g)

Cases cited (11)

  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Mweru Ali and 2 Others v Uganda (Criminal Appeal No. 33 of 2002)
  • Frank Ndahebe v Uganda (Criminal Appeal No. 2 of 1993)
  • Lt. Jonas Ainomugisha v Uganda (Criminal Appeal No. 19 of 2015)
  • Abdalla Nabulere and Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Roria v Republic [1967] 1 EA 583
  • I(azanra Henry vs. Uganda (supra)
  • Abdu Ngobi v Uganda (Criminal Appeal No. 10 of 1991)
  • Kamudini Mukama v Uganda (Criminal Appeal No. 36 of 1995)
  • Oketcho Richard v Uganda (Criminal Appeal No. 26 of 1995)
  • Bukenya and Others v Uganda [1972] EA 551
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.