Wakilii

Ssenkungu Akim v Uganda (Criminal Appeal No. 161 of 2023)

Supreme Court · [2025] UGSC 22 · 2025 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal, which had upheld a High Court conviction and sentence for aggravated robbery.
Decision
Appeal dismissed; conviction and 27-year sentence for aggravated robbery upheld.

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Holding

The Supreme Court dismissed the second appeal. On the first ground, it upheld the respondent's preliminary objection: the appellant had sought and obtained leave to appeal to the Court of Appeal only against sentence, so the conviction issue (identification and recent possession) was never raised or resolved below and could not be raised for the first time on second appeal. On the second ground, the Court held that under section 5(3) of the Judicature Act an appellant has a right of appeal only against the legality of a sentence, not its severity; as the complaint was in substance against severity, the appeal was bad in law. The 27-year sentence was upheld.

Facts

The appellant was indicted for aggravated robbery contrary to sections 285 and 286(2) of the Penal Code Act. On 6 May 2012 at Bwebajja, Ssisa Sub-County, Wakiso District, the victim Kalule Abdul was robbed of a Beretta pistol loaded with ammunition, a mobile phone, two ladies' handbags and 100,000 shillings, with a gun used on him. About four months later, on 9 August 2012, police intercepted the appellant travelling as a passenger on a motorcycle on the Mbarara-Masaka Road and recovered a pistol with eight rounds of ammunition, found to be the one stolen from the victim. The appellant denied robbing the victim, claiming he was merely transporting the pistol to its owner in Mbarara. The trial judge rejected his defence, convicted him on the doctrine of recent possession of stolen property, and sentenced him to 27 years' imprisonment. He appealed to the Court of Appeal only against sentence, which was upheld, prompting this second appeal.

Issues

  1. Whether the Court of Appeal erred in upholding the conviction without properly evaluating the evidence on identification and the doctrine of recent possession.
  2. Whether the Court of Appeal erred in upholding the 27-year sentence without considering the mitigating factors.
  3. Whether a ground of appeal not raised before the Court of Appeal can be entertained for the first time on a second appeal to the Supreme Court.

Orders

  • Preliminary objection raised by counsel for the Respondent upheld.
  • First ground of appeal dismissed.
  • Sentence of 27 years' imprisonment upheld.
  • Appeal dismissed for lack of merit.
  • The decision and sentence of the Court of Appeal upheld.

Key headnotes

Criminal Law & Procedure — Appeals — New ground on second appeal not raised before the Court of Appeal
A ground of appeal that was not raised before, and therefore not considered by, the Court of Appeal is not maintainable before the Supreme Court on a second appeal; the Justices of Appeal cannot be faulted for failing to address a matter never put before them.
Criminal Law & Procedure — Second appeal against sentence — Legality versus severity under Judicature Act s.5(3)
Under section 5(3) of the Judicature Act, an appellant has a right of appeal only against the legality of a sentence and not against its severity; an appeal that in substance challenges only the severity of the sentence is prohibited and bad in law.

Legislation cited (3)

  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Judicature Act s.5(3)

Cases cited (2)

  • Abdullah Nabulere and 2 Others v Uganda (Criminal Appeal No. 9 of 1978)
  • Twinomugisha Alex alias Twine Patrick Kwezi & John Sanyu Katuramu v Uganda (Criminal Appeal No. 35 of 2002)
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.