Wakilii

Moses Kabareebe v Uganda (Criminal Appeal No. 57 of 2023)

Supreme Court · [2025] UGSC 24 · 2025 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal's affirmation of a High Court conviction and sentence for rape
Decision
Conviction and sentence for rape quashed; appellant to be discharged from incarceration unless lawfully held on other charges

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a second criminal appeal, the Supreme Court held that Grounds 1 and 3 — raising matters never canvassed before the trial court or Court of Appeal — were improperly before it and struck them out, finding no failure of justice under s.138 of the Trial on Indictments Act. On Ground 2, the Court re-evaluated the evidence and found grave, unexplained contradictions going to the root of the prosecution case: the victim's false denial of prior sexual relations, a DNA report excluding the appellant as her child's father, and conduct consistent with a consensual relationship. These raised reasonable doubt as to the absence of consent, a critical ingredient of rape. The appeal substantially succeeded; the conviction and sentence were quashed.

Facts

The appellant was convicted of raping Ms. Juliet Akello, a house maid to his tenant, on 25 October 2019 at Kyebando, Kampala. The prosecution alleged he had non-consensual sexual intercourse with her, threatening that he was a soldier and would shoot her. The victim testified she had had no prior sexual relationships and no boyfriend other than the appellant. Under cross-examination she initially denied, then conceded, having a child; a DNA report concluded the appellant was not the child's biological father, and the child appeared to have been conceived before the alleged rape. Evidence indicated the victim maintained contact with the appellant after the alleged incident and complied with his requests. The appellant gave unsworn evidence denying knowledge of the case. He was sentenced to 10 years' imprisonment, upheld by the Court of Appeal, and appealed to the Supreme Court.

Issues

  1. Whether Grounds 1 and 3, raising matters not canvassed before the trial court or first appellate court, were properly before the Supreme Court on a second appeal.
  2. Whether the alleged procedural irregularities (admission of PF 24A, the joint assessors' opinion and the failure to reconstruct the scene of crime) occasioned a failure of justice warranting reversal of the conviction.
  3. Whether the first appellate court properly re-evaluated the prosecution evidence, and whether the contradictions and inconsistencies in that evidence proved the offence of rape beyond reasonable doubt.

Orders

  • The appellant's conviction and sentence are hereby quashed.
  • Unless held on other lawful charges, the appellant should be discharged from incarceration with immediate effect.

Key headnotes

Criminal Procedure — Second Appeal — New Matters Not Raised in Lower Courts
On a second appeal, an appellant is not at liberty to raise matters that were not raised and considered by the trial court and the first appellate court; grounds founded on such fresh matters are incompetent and liable to be struck out.
Criminal Procedure — Procedural Irregularity — Failure of Justice under Trial on Indictments Act s.138
A finding or order will not be reversed on appeal for an error, omission or irregularity unless it has occasioned a failure of justice, and in determining that question the court considers whether the objection could and should have been raised at an earlier stage of the proceedings.
Criminal Procedure — Assessors — Failure to Obtain Separate Opinions
Although s.82 of the Trial on Indictments Act requires a trial judge to secure the separate opinions of assessors, failure to obtain separate opinions is not by itself fatal to a criminal trial.
Evidence — Contradictions and Inconsistencies — Resolution in Favour of the Accused
Major contradictions and inconsistencies in the prosecution evidence which go to the root of the case and are not satisfactorily explained must be resolved in favour of the accused, while minor inconsistencies that do not affect the substance of the case may be ignored unless they amount to deliberate untruths.
Criminal Law — Rape — Absence of Consent as Essential Ingredient
Absence of consent is a critical ingredient of the offence of rape; where the conduct of the complainant and accused is consistent with a consensual sexual relationship and the complainant's credibility is undermined by proven falsehoods, the prosecution fails to prove non-consensual intercourse beyond reasonable doubt.
Evidence — Unsworn Statement of Accused — Weight
A court may take into account that an accused gave unsworn evidence, but this must be exercised with caution and must not be used to bolster a weak prosecution case or be treated as an admission of guilt.

Legislation cited (12)

  • Penal Code Act, Cap. 128 s.123
  • Penal Code Act, Cap. 128 s.124
  • Trial on Indictments Act, Cap. 23 s.66(2)
  • Trial on Indictments Act, Cap. 23 s.66(3)
  • Trial on Indictments Act, Cap. 23 s.82(1)
  • Trial on Indictments Act, Cap. 23 s.138(1)
  • Trial on Indictments Act, Cap. 23 s.138(2)
  • Trial on Indictments Act, Cap. 23 s.139(1)
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.126(2)(e)
  • Judicature (Supreme Court Rules) Directions, S.I 13-11, rule 2(2)

Cases cited (20)

  • Bogere Moses v Uganda [1998] UGSC 22
  • Hudson Jackson Andrua & Another v Uganda (Criminal Appeal No. 17 of 2016)
  • Henry Kazaarwa v Uganda (Criminal Appeal No. 17 of 2025)
  • Fred Sekajja v Uganda (Criminal Appeal No. 78 of 2020)
  • Uganda v Guster Nsubuga & Another (SCCA No. 92 of 2018)
  • Sitenda Sebalu v Sam K. Njuba & Another (Election Appeal No. 26 of 2007)
  • Kampala Capital City Authority v Kabandize & Others (SCCA No. 13 of 2014)
  • Henry Kifamunte v Uganda [1998] UGSC 20
  • Tropical Africa Bank Ltd v Grace Were Muhwana (Civil Application No. 3 of 2012)
  • Akbar Hussein Godi v Uganda [2015] UGSC 17
  • Francis Juma s/o Musungu v R [1958] 1 EA 192
  • Nalongo Josephine Nazziwa v Uganda [2018] UGSC 27
  • Fang Min v Belex Tours and Travel Limited (SCCA No. 05 of 2013)
  • Moses Rwabugande v Uganda [2017] UGSC 1
  • Abdu Ngobi v Uganda [1992] UGSC 15
  • Miller v Minister of Pensions [1947] 2 All E.R. 372
  • Alfred Tajar v Uganda (EACA Criminal Appeal No. 167 of 1969)
  • Sarapio Tinkamalirwe v Uganda (Supreme Court Criminal Appeal No. 27 of 1989)
  • Lubogo v Uganda [1967] EA 440
  • Abasi Kibazo v Uganda [1965] 1 EA 507
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.