Wakilii

Kodet v Uganda (Criminal Appeal 16 of 2019)

Court of Appeal · [2023] UGCA 290 · 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 rape
Decision
Conviction for rape upheld; sentence reduced from 60 years to 35 years' imprisonment, being 32 years and 2 months after deducting time spent on remand.

Observed later treatment

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Holding

The Court of Appeal dismissed grounds 1-5 and upheld the rape conviction. Although the record did not clearly show that PW3 was sworn, she was cross-examined and her evidence was consistent, so the omission did not occasion a miscarriage of justice; the failure to sign and file a formal memorandum of agreed documents, and the absence of summing-up notes, were likewise irregularities cured by section 139 of the Trial on Indictments Act because no failure of justice resulted. However, the court found the 60-year sentence manifestly excessive given the need for uniformity of sentencing, reduced it to 35 years, and after deducting time on remand ordered the appellant to serve 32 years and 2 months. The appeal partially succeeded.

Outcome

Conviction for rape upheld; sentence reduced from 60 years to 35 years' imprisonment, being 32 years and 2 months after deducting time spent on remand.

Facts

The appellant, Kodet Mariko, was jointly charged with another and convicted of rape contrary to sections 123 and 124 of the Penal Code Act for having unlawful carnal knowledge of the victim (A.B.) on 4 January 2016 at Kapelbyong Town Board, Amuria District. At trial the prosecution called three witnesses, and two medical reports examining the victim and the accused were tendered as agreed documents following a preliminary hearing. The appellant gave sworn evidence raising a defence of alibi. The High Court at Jinja found him guilty and sentenced him to 60 years' imprisonment. He appealed against both conviction and sentence on six grounds, complaining of denial of cross-examination, reliance on allegedly unsworn evidence, irregular tendering of the medical reports without a signed memorandum of agreed documents, defective summing up to the assessors, and an excessive sentence.

Issues

  1. Whether the appellant was denied the opportunity to cross-examine prosecution witnesses.
  2. Whether the trial judge erred in relying on the unsworn testimony of PW3 to convict the appellant.
  3. Whether the trial judge misdirected himself on the procedure for tendering the medical reports (PEX1 and PEX2).
  4. Whether reliance on admitted documents without a signed and filed memorandum of agreed documents occasioned a miscarriage of justice.
  5. Whether the trial judge's failure to follow proper procedure in summing up to the assessors rendered the trial a nullity.
  6. Whether the sentence of 60 years' imprisonment was harsh and manifestly excessive.

Orders

  • Grounds 1, 2, 3, 4 and 5 fail; conviction upheld.
  • Ground 6 succeeds.
  • The appeal partially succeeds.
  • The sentence of 60 years' imprisonment is set aside and reduced to 35 years from the time of conviction.
  • After deducting 2 years and 10 months spent on remand, the appellant shall serve 32 years and 2 months from 04/12/2018.

Rules and key headnotes

Criminal Procedure — First Appeal — Duty of First Appellate Court to Re-evaluate Evidence
A first appellate court has a duty to re-evaluate the evidence as a whole and reach its own conclusion, while bearing in mind that it neither saw nor heard the witnesses and carefully weighing the judgment appealed from.
Evidence — Oath — Conviction on Allegedly Unsworn Testimony
Where the record does not clearly show that a witness was sworn, but the witness was cross-examined and gave consistent and credible evidence, the failure to administer the oath does not per se occasion a miscarriage of justice and the resulting error is curable under section 139 of the Trial on Indictments Act.
Criminal Procedure — Preliminary Hearing — Memorandum of Agreed Documents under s.66(2) Trial on Indictments Act
Failure to prepare, sign and file a formal memorandum of agreed matters at a preliminary hearing is an irregularity, but it does not vitiate a conviction where the accused and counsel were present, the documents were tendered without objection, and no failure of justice resulted within the meaning of section 139 of the Trial on Indictments Act.
Criminal Procedure — Summing Up to Assessors under s.82(1) Trial on Indictments Act — Missing Summing-up Notes
Where there is evidence that the trial judge summed up the law and evidence to the assessors, the mere absence of the summing-up notes from the record is not fatal to the conviction and does not by itself warrant ordering a retrial.
Criminal Procedure — Sentencing — Appellate Interference — Manifestly Excessive Sentence and Uniformity
An appellate court will interfere with a sentence only where it is illegal or so manifestly excessive as to amount to an injustice, or where the trial court ignored a material consideration such as the need for uniformity and consistency of sentence.

Legislation cited (16)

Cases cited (28)

  • Sula Kato v Uganda [2001] UGSC 3
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Kamanzi Fred v Uganda (Criminal Appeal No. 38 of 1997)
  • Abasi Kanyike v Uganda (Criminal Appeal No. 34 of 1998)
  • Etoma v Uganda (Criminal Appeal No. 404 of 2016)
  • Sam Ekolu Obote v Uganda [1995] UGSC 7
  • Agaba Lilian & Ors v Uganda (Criminal Appeal Nos. 247 & 239 of 2017)
  • Ephraim Mwesigwa Kamugwa v Management Committee of Nyamirima Primary School (Civil Appeal No. 101 of 2011)
  • Tindyebwa Emmanuel & 2 Others v Uganda (Criminal Appeal No. 396 of 2017)
  • Simbwa Paul v Uganda (Criminal Appeal No. 23 of 2012)
  • Jumba Joshua v Uganda (Criminal Appeal No. 87 of 2021)
  • Adiga Johnson David v Uganda (Criminal Appeal No. 157 of 2010)
  • Rev. Father Santos Wakpora v Uganda (Criminal Appeal No. 204 of 2012)
  • Ahamed Ali Dharamsi Sumar v R [1964] EA 481
  • Tamano v R [1969] EA 126
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • John Kasimbazi & Ors v Uganda (Criminal Appeal No. 167 of 2013)
  • Magala Ramadhan v Uganda (Criminal Appeal No. 1 of 2014)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Atugonza v Uganda (Criminal Appeal No. 11 of 2018)
  • Mubangizi Alex v Uganda (Criminal Appeal No. 12 of 2012)
  • Kiwalabye v Uganda (Criminal Appeal No. 143 of 2001)
  • Biguraho Adonai v Uganda (Criminal Appeal No. 7 of 2012)
  • R v Haviland (1983) 5 Cr App R(S) 109
  • Ogalo s/o Owoura v R (1954) 21 EACA 126
  • R v Mohamedali Jamal (1948) 15 EACA 126

Full judgment

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

Kodet v Uganda (Criminal Appeal 16 of 2019) [2023] UGCA 290 (1 November 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.