Wakilii

Wampa Faziri and Others v Uganda (Criminal Appeal 54 of 2019)

Supreme Court · [2025] UGSC 30 · 2025 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from a Court of Appeal decision that upheld murder convictions but reduced the sentences
Decision
Appeals of the 2nd to 5th appellants allowed, convictions quashed and they were released; the 1st appellant's conviction upheld with sentence reduced to 19 years, 7 months and 23 days' imprisonment.

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Cited — treatment unverified cited in 3 (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 appeal in a murder case, the Supreme Court held that the single-witness visual identification of the 2nd to 5th appellants, made under unverified moonlight while the witness hid in a coffee plantation, was unreliable and uncorroborated, and that common intention had not been proved. The Court of Appeal had also wrongly reversed onto the appellants the burden of disproving their alibis. Their convictions were quashed. The 1st appellant's conviction was upheld on credible voice and recognition identification supported by motive evidence. However, his 30-year sentence was illegal for failing to deduct his remand period, so it was set aside and a fresh sentence of 19 years, 7 months and 23 days substituted.

Facts

On 5 July 2011, at around 4:00 am, the deceased, Paul Mukisa (also known as Paul Kagame), was lured out of his house on the pretext that his poultry were causing a disturbance. Once outside, his attackers bolted the main door, then hacked him and left him for dead. During the assault he called out the names of his assailants, and his wife raised an alarm naming some attackers. The five appellants and others were alleged to be part of a vigilante group called 'Lala Salama'. PW1, the deceased's wife, identified the 1st appellant by his distinctive voice and the 2nd appellant by moonlight through her window. PW2, who had hidden in a coffee plantation about five metres away, claimed to have seen the appellants fleeing under moonlight, but only gave this account after being committed to prison as a refractory witness. The 1st appellant had a longstanding grudge with the deceased, having earlier accused him of theft and reportedly threatened him shortly before the killing. The appellants denied the charges and raised alibis.

Issues

  1. Whether the Court of Appeal properly re-evaluated the visual and voice identification evidence relied on to convict the appellants.
  2. Whether common intention to commit murder was proved against the appellants.
  3. Whether the prosecution discharged its burden of disproving the appellants' alibis and proving their presence at the scene beyond reasonable doubt.
  4. Whether the 30-year sentence was illegal for failure to deduct the period the 1st appellant spent on remand.

Orders

  • The convictions of the 2nd, 3rd, 4th and 5th appellants are quashed.
  • The sentences of the 2nd, 3rd, 4th and 5th appellants are set aside, and they are released forthwith unless held on other lawful charges.
  • The 1st appellant's conviction is upheld.
  • The 1st appellant is sentenced to 19 years, 7 months and 23 days' imprisonment to run from the date of conviction.

Key headnotes

Evidence — Visual Identification — Identification by Moonlight
A court relying on identification made under moonlight must require evidence describing the intensity and adequacy of that moonlight; in the absence of a clear description of the lunar illumination, the possibility of mistaken identity cannot be ruled out.
Evidence — Identification — Single Identifying Witness — Need for Corroboration
Where a conviction depends on the visual identification of a single witness under difficult conditions, that evidence must be corroborated by independent evidence before it can safely sustain a conviction.
Evidence — Voice Identification — Familiarity with the Accused's Voice
Voice identification is reliable where the witness is familiar with the accused's voice, even without having directly conversed with him, provided the witness has previously heard the accused speak.
Criminal Law — Common Intention — Section 20 Penal Code Act
Liability under the principle of common intention requires proof that two or more persons formed a common intention to prosecute an unlawful purpose; where no evidence establishes such a shared purpose, an accused cannot be convicted on that basis.
Criminal Law — Defence of Alibi — Burden of Proof
The prosecution bears the burden of disproving an alibi and proving the accused's presence at the scene of crime beyond reasonable doubt; it is an error of law for a court to reverse that burden onto the accused.
Constitutional Law — Sentencing — Deduction of Remand Period — Article 23(8)
A sentence imposed without taking into account the period a convict spent on remand is illegal for failure to comply with a mandatory constitutional provision, and the remand period must be deducted arithmetically from the sentence.

Legislation cited (9)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.20
  • Evidence Act s.154
  • Trial on Indictments Act s.42
  • Constitution Article 23(8)
  • Constitution Article 28(3)
  • Judicature Act s.11
  • Judicature (Supreme Court Rules) Directions rule 30(1)

Cases cited (23)

  • Abdulla Bin Wendo & Anor v R [1953] 20 EACA
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Opolot Justine & Anor v Uganda (Criminal Appeal No. 31 of 2014)
  • Aharikundira Yustina v Uganda (Criminal Appeal No. 27 of 2015)
  • Father Narsensio Begumisa and Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Pandya v R. (1957) EA 336
  • Bogere Charles v Uganda (Criminal Appeal No. 10 of 1998)
  • Okethi Okale & others v R 1965 EA 559
  • Sekitoleko v Uganda 1967 EA 531
  • Israili Epuku s/o Achietu v R (1934) 1 EACA 155
  • Abudalla Nabulere & Another v Uganda, SCCA No. 1978, [1979] HCB 77
  • Sabwe Abdu v Uganda (Criminal Appeal No. 19 of 2007)
  • Roria v Republic [1967] EA 583
  • Wambura Marwa Wambura v Republic, Cr Appeal No. 115 of 2019
  • Joseph Muchangi Nyaga & another v Republic [2013] KECA 88 (KLR)
  • R v Turnbull & Ors (1976) 3 A.E.R 549
  • R v Okule & Others [1941] 8 305 EACA
  • [2017] UGSC 8
  • Waihi & another v Uganda [1968] EA 278
  • Godfrey Tinkamanyire & another v Uganda (Criminal Appeal No. 5 of 1988)
  • [2018] UGSC 12
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Ssekitoleko Yudah and others v Uganda (Criminal Appeal No. 33 of 2014)
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.