Wakilii

Kalyango and Another v Uganda (Criminal Appeal 377 of 2019)

Court of Appeal · [2023] UGCA 180 · 2023 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
First appellant's conviction upheld with sentence reduced to 27 years 8 months 1 week 3 days after deduction of remand; second appellant acquitted, discharged and ordered released.

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court of Appeal held that recalling prosecution witnesses under section 39(1) of the Trial on Indictments Act was proper and occasioned no miscarriage of justice. On the circumstantial evidence, the inculpatory facts pointed solely to A1's guilt, so his conviction stood, but the prosecution had not proved A2's participation beyond reasonable doubt, so his conviction was quashed and he was acquitted. The 30-year sentence on A1 was not harsh, but the period of 2 years 3 months 3 weeks and 4 days spent on remand had not been deducted; following Rwabugande, the court deducted it, leaving A1 to serve 27 years 8 months 1 week and 3 days from the date of conviction.

Outcome

First appellant's conviction upheld with sentence reduced to 27 years 8 months 1 week 3 days after deduction of remand; second appellant acquitted, discharged and ordered released.

Facts

On the night of 26 July 2017 at Kabalamba Trading Centre, Kibibi Sub-County, Butambala District, the deceased, Florence Nakabugo, was seen being carried by the appellants on a motorcycle, ostensibly being taken to hospital. PW1, the appellants' nine-year-old child, heard A1 call A2 to help and saw the two place the deceased on the motorcycle. PW2 saw the appellants carrying the deceased, called out to her, but the deceased did not respond; the deceased was pronounced dead that night. A postmortem revealed death by strangulation. Police (PW6 and PW7) inspecting the deceased's home found bloodstained bed sheets and a mattress. Evidence indicated A1 had quarrelled with the deceased over land and, after her death, insisted on obtaining land agreements. A2's defence was that he merely helped take A1's sick wife to Gombe hospital, a defence the prosecution did not challenge.

Issues

  1. Whether the trial judge erred in granting the prosecution permission to recall PW2 and PW5 to testify a second time, thereby occasioning a miscarriage of justice.
  2. Whether the circumstantial evidence was sufficient to prove that the first appellant (A1) murdered the deceased.
  3. Whether the circumstantial evidence was sufficient to prove that the second appellant (A2) participated in the murder of the deceased.
  4. Whether the sentences of 30 years and 25 years were harsh and excessive and whether the period spent on remand ought to have been deducted.

Orders

  • First appellant's (A1) appeal partly succeeds; the sentence is varied to 27 years, 8 months, 1 week and 3 days' imprisonment from the date of conviction to reflect deduction of the remand period.
  • Second appellant's (A2) appeal wholly succeeds; his conviction and sentence are set aside.
  • Second appellant (A2) is acquitted and shall be released from prison unless lawfully held on other charges.

Rules and key headnotes

Criminal Procedure — Recall of Witnesses — Section 39(1) Trial on Indictments Act
A court has power under section 39(1) of the Trial on Indictments Act to recall and re-examine any witness already examined where the evidence appears essential to the just decision of the case, and such recall is not prejudicial provided the parties retain their right to cross-examine the recalled witness.
Evidence — Circumstantial Evidence — Inference of Guilt
Where the prosecution case depends solely on circumstantial evidence, the court must, before convicting, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than guilt; such evidence must be treated with caution and narrowly examined to exclude co-existing circumstances that would weaken or destroy the inference of guilt.
Evidence — Last Seen Doctrine — Rebuttable Presumption
The last seen doctrine raises a rebuttable presumption that a person last seen with a deceased bears responsibility for the death, but where the prosecution evidence does not show a common plan and an accused's innocent explanation for his presence is unchallenged, participation in the killing is not proved beyond reasonable doubt.
Criminal Procedure — Sentencing — Deduction of Remand Period — Article 23(8) Constitution
Following Rwabugande Moses v Uganda, a sentencing court must take into account and arithmetically deduct the period an accused has spent on remand; failure to do so renders the sentence liable to variation on appeal, and an appellate court will exercise its powers under section 11 of the Judicature Act to deduct the remand period.
Criminal Procedure — Sentencing — Appellate Interference With Discretion
Sentencing is within the discretion of the trial judge and an appellate court will only interfere with a sentence where it is evident that the court acted on a wrong principle, overlooked a material fact, or the sentence is manifestly harsh and excessive.

Legislation cited (6)

Cases cited (20)

  • Simon Musoke v R [1958] EA 715
  • Teper v R [1952] AC 487
  • Tumuhairwe v Uganda [1967] EA 328
  • Bulira Christiano and Another v Uganda (Criminal Appeal No. 61 of 2015)
  • Karisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Bashasha Sharif v Uganda (Criminal Appeal No. 82 of 2018)
  • Otuba Patrick and Another v Uganda (Criminal Appeal No. 218 of 2010)
  • Bogere Moses v Uganda [1998] UGSC 22
  • Kifamunte Henry v Uganda [1998] UGSC 20
  • Stephen Karekona v Uganda (Criminal Appeal No. 10 of 1998)
  • R v Sullivan [1923] 1 KB 47
  • Byaruhanga Fodori v Uganda (Criminal Appeal No. 18 of 2002)
  • Tindigwihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
  • Kiwalabye Benard v Uganda (Criminal Appeal No. 143 of 2001)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Aharikundira v Uganda [2018] UGSC 49
  • Robert Nkonge v Uganda (Criminal Appeal No. 148 of 2009)
  • Nkurunziza Robert v Uganda (Criminal Appeal No. 539 of 2016)
  • Twinomuhangi Dominic v Uganda (Criminal Appeal No. 347 of 2017)
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)

Full judgment

↓ Download PDF

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

Kalyango and Another v Uganda (Criminal Appeal 377 of 2019) [2023] UGCA 180 (18 July 2023)
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.