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Mwesige and 2 Others v Uganda [2023] UGSC 53

Supreme Court · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal confirming a High Court conviction for murder and aggravated robbery
Decision
Appeal dismissed; convictions upheld and each appellant re-sentenced to 30 years' imprisonment on each count, to run concurrently.

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Holding

The Supreme Court dismissed a second appeal against conviction for murder and aggravated robbery, holding that the Court of Appeal had properly re-evaluated the DNA and circumstantial evidence, which irresistibly pointed to the appellants' guilt, and that the 2nd appellant was correctly identified. On sentence, it held that the Court of Appeal had wrongly reduced the sentences by applying Rwabugande Moses v Uganda, a decision of 3 March 2017 that does not bind courts in matters decided before that date; the trial court's earlier approach was lawful. The Court set aside the Court of Appeal's sentences and re-instated, with variation, sentences of 30 years' imprisonment on each count, to run concurrently.

Facts

Asa Rogers was murdered at Katooza Village, Kyenjojo District, and robbed of his motorcycle by attackers armed with a panga. PW6, attacked at the same spot shortly before the killing, recognised the 2nd appellant by sight and voice in the light of his motorcycle before the assailants cut off its head lamp; he was beaten but spared after the 2nd appellant said he was not the target. PW1 found the deceased's body with deep cut wounds and recovered a panga and other items at the scene. Following a tip-off, the 1st appellant was arrested and led police to where a blood-stained trouser and jumper were recovered under a bed. The government analyst found the deceased's blood on the 1st appellant's clothing, the DNA showing moderate genetical evidence that the deceased was the contributor. PW5 saw the 1st and 3rd appellants riding an unlit, number-plate-less motorcycle hidden behind her house. The 3rd appellant separately confided his participation in the murder to fellow detainees PW9 and PW7.

Issues

  1. Whether the Court of Appeal erred in law by relying on weak and unreliable DNA evidence to confirm the appellants' convictions for murder and aggravated robbery.
  2. Whether the 2nd appellant was properly identified at the scene of the crime.
  3. Whether the 3rd appellant participated in the commission of the offences of murder and aggravated robbery.
  4. Whether the circumstantial evidence irresistibly pointed to the guilt of the appellants.
  5. Whether the Court of Appeal erred in sentencing the appellants on wrong legal principles and without considering their mitigating factors.

Orders

  • The appeal is dismissed.
  • The convictions for murder and aggravated robbery are upheld.
  • The sentences imposed by the Court of Appeal are set aside.
  • Each appellant is sentenced to 30 years' imprisonment on Count 1 (murder).
  • Each appellant is sentenced to 30 years' imprisonment on Count 2 (aggravated robbery).
  • The sentences are to run concurrently from the date each appellant was convicted.

Key headnotes

Evidence — Circumstantial Evidence — Inference of Guilt
Where a case depends wholly or partly on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than that of guilt.
Evidence — DNA Evidence — Weight and Corroboration
DNA evidence is not rendered weak or unreliable where it is assessed together with, and corroborated by, the rest of the circumstantial evidence on record rather than in isolation.
Evidence — Identification of Accused — Conditions for Correct Identification
The conditions for favourable and correct identification include whether the witness knew the accused, the distance and time of observation, and the source of light available; where conditions are difficult, the court must look for other supporting evidence.
Criminal Law & Procedure — Second Appeal — Duty of Second Appellate Court
A second appellate court interferes with the concurrent findings of fact of the lower courts only in exceptional circumstances where it is proved that those courts were manifestly wrong on a finding of fact.
Criminal Law & Procedure — Sentencing — Deduction of Remand Period — Temporal Application of Precedent
The rule in Rwabugande Moses v Uganda requiring the arithmetical deduction of the period spent on remand does not bind courts in respect of sentences imposed before 3 March 2017, because a precedent must already be in existence to be followed.
Criminal Law & Procedure — Appeal Against Sentence — Jurisdiction of Supreme Court
Under section 5 of the Judicature Act an accused person may appeal to the Supreme Court against a sentence or order only on a matter of law not including the severity of the sentence.

Legislation cited (9)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.285
  • Penal Code Act s.286
  • Evidence Act (Cap. 6) s.23
  • Judicature Act s.5
  • Judicature Act s.5(3)
  • Supreme Court Rules r.30
  • Supreme Court Rules r.31

Cases cited (17)

  • Simon Musoke v R [1958] EA 715
  • Teper v R [1952] 2 All ER 44
  • Pandya Vs. R [1957] EA
  • Tito Buhungiro v Uganda (Criminal Appeal No. 8 of 2018)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Byaruhanga Fodori v Uganda (Criminal Appeal No. 18 of 2002)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Abelle Asuman v Uganda (Criminal Appeal No. 60 of 2016)
  • Kizito Semakula v Uganda (Criminal Appeal No. 24 of 2001)
  • Kabuye Senvewo v Uganda (Criminal Appeal No. 2 of 2002)
  • Katende Ahamad v Uganda (Criminal Appeal No. 6 of 2004)
  • Bekenya Joseph v Uganda (Criminal Appeal No. 17 of 2010)
  • Kidega Joseph and Okot Justino v Uganda (Criminal Appeal No. 7 of 2019)
  • Beingana Kanoni Willy v Uganda (Criminal Appeal No. 20 of 2009)
  • Abdalla Bin Wendo v R [1953] EACA 166
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Kasana v Uganda (Criminal Appeal No. 12 of 1981)
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.