Wakilii

Kalongo & 2 Ors v Uganda (Criminal Appeal No. 530 of 2015)

Court of Appeal · [2019] UGCA 170 · 2019 Conviction Quashed; Sentence Reduced AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentences for aggravated robbery; first appellant against conviction and sentence, second and third appellants against sentence only.
Decision
First appellant acquitted and ordered released; compensation order set aside; second appellant's sentence reduced to 15 years 5 months; third appellant's 14-year sentence upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the first appellant's appeal, holding that the prosecution failed to prove common intention since there was no evidence of what was discussed in the phone calls relied upon, and that his alleged confession to a Detective Corporal was inadmissible under section 23(1) of the Evidence Act because it was not made before an officer of or above assistant inspector rank. His conviction, sentence and the compensation order were set aside. On sentence, the Court found the trial Judge took remand into account as required by Kizito Senkula, but reduced the second appellant's life sentence to 17 years (15 years 5 months after remand) for consistency, while upholding the third appellant's 14-year sentence.

Outcome

First appellant acquitted and ordered released; compensation order set aside; second appellant's sentence reduced to 15 years 5 months; third appellant's 14-year sentence upheld.

Facts

On 14 May 2012 at Lufula Village, Kiboga Town Council, a group of persons robbed Riziki Jackie of shs. 41,500,000 using a gun. Five persons were indicted for aggravated robbery. The second appellant pleaded guilty at the outset and the third appellant changed his plea to guilty during the prosecution case; both were convicted on their pleas. The first appellant and two others were tried; he was convicted while the other two were acquitted. The prosecution's case against the first appellant rested on phone print-out evidence showing telephone contact between him and the third appellant around the time of the robbery, and on an alleged confession he made to PW6, a Detective Corporal, that he masterminded and coordinated the robbery from Kampala. The first appellant denied involvement, raising an alibi and stating that the phone call concerned school fees for the third appellant's daughter. The complainant and her driver testified that only the second and third appellants executed the robbery.

Issues

  1. Whether the first appellant shared a common intention with the other appellants to commit aggravated robbery so as to sustain his conviction.
  2. Whether a confession made to a police officer below the rank of assistant inspector was admissible against the first appellant.
  3. Whether the trial Judge erred in not mathematically deducting the period spent on remand and in imposing disparate sentences.
  4. Whether the compensation order made against the first appellant alone was lawful.

Orders

  • Ground one of the appeal allowed.
  • Conviction of the first appellant for aggravated robbery quashed and sentence set aside.
  • First appellant ordered to be released immediately unless held on other lawful charges.
  • Compensation order against the first appellant set aside.
  • Second appellant's sentence reduced from life imprisonment to 15 years and 5 months, to run from 5 March 2014.
  • Third appellant's sentence of 14 years imprisonment upheld, to run from 5 March 2014.

Rules and key headnotes

Common Intention — Proof of Shared Unlawful Purpose — Inference from Telephone Contact
Common intention under section 20 of the Penal Code Act cannot be established merely by proof of telephone contact between an accused and the perpetrators around the time of the offence; where there is no evidence of the content of the communication, the inference of a shared unlawful purpose is not made out and any doubt must be resolved in favour of the accused.
Confessions — Admissibility — Confession to Police Officer Below Assistant Inspector Rank
Under section 23(1) of the Evidence Act, a confession made while in police custody is inadmissible unless made in the immediate presence of a police officer of or above the rank of assistant inspector or a magistrate; a confession made to a Detective Corporal is inadmissible and must not be used to prove the case against the accused.
Sentencing — Remand Period — Meaning of Taking Into Account under Article 23(8)
At the time material to this case, taking into account the period spent on remand under Article 23(8) of the Constitution did not require an arithmetical deduction; a sentence in which the trial Judge expressly considered the remand period was lawful, the Rwabugande Moses requirement of mathematical deduction being inapplicable to sentences passed before 2017.
Sentencing — Consistency and Parity — Aggravated Robbery Range
An appellate court will interfere with a sentence to maintain consistency with the range of sentences for similar offences; a sentence of life imprisonment for aggravated robbery where no life was lost or injury inflicted is harsh and excessive and may be reduced in line with comparable precedents.

Legislation cited (8)

Cases cited (18)

  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Selemani v Republic [1972] EA 269
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Ismail Kisegerwa and Another v Uganda (Criminal Appeal No. 6 of 1978)
  • Uganda v Beino Mugisha & Anor (Criminal Session Case No. 64 of 1998)
  • R v. Okule & others [1941] 8 EACA 80
  • P -vs- Okute [1941] 8 E.A.C.A. at p.80
  • Wanjiro Wamiro -vs-R [1955] 22 E.A.C.A. 521
  • Festo Androa Asenua & Another v Uganda (Criminal Appeal No. 1 of 1998)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kiwalabye v Uganda (Criminal Appeal No. 143 of 2001)
  • Tukahebwa David Junior v Uganda (Criminal Appeal No. 59 of 2016)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Kizito Senkula v Uganda (Criminal Appeal No. 24 of 2001)
  • Oyet Twol v Uganda (Criminal Appeal No. 115 of 2013)
  • Nduru Banada & Another v Uganda (Criminal Appeal No. 249 of 2010)
  • Ogwal Nelson and 4 Others v Uganda (Criminal Appeal No. 606 of 2015)
  • R -vs- Tabulayenka

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kalongo & 2 Ors Vs Uganda (Criminal Appeal No. 530 of 2015) [2019] UGCA 170 (25 June 2019)
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.