No. 19515 Sgt. Solomon Nkojo v Uganda (Criminal Appeal No. 2 of 2022)

Supreme Court · [2025] UGSC 31 · 2025 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second criminal appeal against conviction and sentence, from the Court of Appeal's dismissal of the first appeal and enhancement of sentence

Decision

Appeal dismissed on conviction (grounds 1 and 2) and allowed on sentence (ground 3); convictions upheld, Court of Appeal's enhanced sentences set aside and substituted with 17 years 2 months (murder) and 11 years 2 months (attempted murder), concurrent.

The full judgment

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Holding

On a second appeal from murder and attempted-murder convictions, the Supreme Court held that the Court of Appeal had properly re-evaluated the evidence and that malice aforethought, and transferred malice in respect of the second victim, were established from the surrounding circumstances; grounds 1 and 2 failed and the convictions were upheld. On ground 3 the Court held that an appellate court cannot enhance a sentence on its own motion without warning the appellant of a probable enhancement and absent a State cross-appeal; the Court of Appeal's enhancement was therefore unlawful. The enhanced sentences were set aside and the Court re-sentenced the appellant, after deducting remand time, to 17 years 2 months for murder and 11 years 2 months for attempted murder, concurrent.

Facts

The appellant, a police driver, was driving a police vehicle transporting trainees from Masindi to Kampala. At Katuugo Trading Centre on the Kampala-Gulu highway, he knocked down and ran over two traffic police officers on duty, Sgt. Adong Judith and Cpl. Omach Patrick, dragging them about 13 metres. Sgt. Adong died at the scene; Cpl. Omach was grievously injured, remained unconscious for five days and was left walking on crutches. Two parked police motorcycles were destroyed. Evidence showed the appellant had previously been in a relationship with the deceased that had soured, that he slowed the vehicle on approach then suddenly accelerated, that the vehicle had no mechanical defects, and that he afterwards parked it normally in gear one. The appellant claimed an accident and loss of control. He was convicted of murder and attempted murder and sentenced by the High Court to 18 and 12 years concurrently. The Court of Appeal upheld the convictions but, finding the sentences illegal for ignoring remand time, set them aside and enhanced them to 30 and 15 years.

Issues

Whether the death of the deceased was caused by the appellant with malice aforethought.
Whether the offence of attempted murder was proved against the appellant on the doctrine of transferred malice.
Whether the Court of Appeal erred in law in enhancing the appellant's custodial sentences without following proper sentencing procedure, in the absence of a cross-appeal or a warning of probable enhancement.

Orders

The convictions of murder and attempted murder against the appellant are upheld.
The sentences imposed by the Court of Appeal are set aside and substituted with 17 years and 2 months' imprisonment for murder and 11 years and 2 months' imprisonment for attempted murder, to run concurrently from 16 January 2018, the date of conviction.

Key headnotes

Criminal Law & Procedure — Second Appeal — Jurisdiction of the Supreme Court

On a second appeal the Supreme Court is confined to questions of law or mixed law and fact that were before the first appellate court and will not re-evaluate the evidence afresh, interfering only where the first appellate court failed to re-evaluate the evidence as a whole.

Criminal Law & Procedure — Murder — Malice Aforethought — Proof by Circumstantial Evidence

Malice aforethought may be inferred from the surrounding circumstances of the offence — including the weapon used, the part of the body injured, and the conduct of the accused before, during and after the act — and can be ruled out only where the killing was an accident or done in defence of person or property.

Criminal Law & Procedure — Attempted Murder — Doctrine of Transferred Malice

Where an accused acts with malice aforethought toward an intended victim and by the same act injures another who is within the target range, the malice is transferred to the second victim, and knowledge that the act will probably cause death of some person, whether the actual victim or not, suffices under section 191(b) of the Penal Code Act.

Criminal Law & Procedure — Sentencing — Enhancement of Sentence on Appeal — Procedure

Although an appellate court is empowered to set aside and substitute a lower court's sentence, including by enhancing it, it must observe proper sentencing procedure; it cannot enhance a sentence on its own motion without first warning the appellant of a probable enhancement and absent a cross-appeal by the State, and an enhancement made without such procedure is unlawful.

Legislation cited (12)

Penal Code Act s.188
Penal Code Act s.189
Penal Code Act s.204(a)
Penal Code Act s.191
Penal Code Act s.191(b)
Penal Code Act s.359(1)
Judicature Act s.5(3)
Judicature Act s.7
Judicature Act s.11
Criminal Procedure Code Act s.34(1)
Criminal Procedure Code Act s.34(2)(b)
Judicature (Supreme Court Rules) Directions SI 13-11 r.30(1)

Cases cited (6)

Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Nanyonjo Harriet & Another v Uganda (Criminal Appeal No. 24 of 2002)
Mugasa Joseph v Uganda (Criminal Appeal No. 10 of 2010)
Kamya John Wavamuno v Uganda (Criminal Appeal No. 16 of 2000)
Kiwalabye v Uganda (Criminal Appeal No. 143 of 2001)
Busiku v Uganda [2015] UGSC 3

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