Wakilii

Masika Fina & 2 Others v Uganda (Criminal Appeals No. 221 & 227 of 2017)

Court of Appeal · [2020] UGCA 2034 · 2020 Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for murder
Decision
Convictions quashed, sentences set aside, and appellants ordered released immediately

Observed later treatment

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Holding

The Court of Appeal quashed the murder convictions of all three appellants. It held that the prosecution case rested on inadmissible hearsay evidence of prior threats and on purely circumstantial evidence that did not exclude every reasonable hypothesis of innocence. Evidence of a love relationship between appellants no.1 and no.3 proved at most motive, not participation, and appellant no.2's conduct during the shooting was equally consistent with self-preservation. There was no evidence of common intention under section 20 of the Penal Code Act. As the burden of proof lay on the prosecution and was not discharged beyond reasonable doubt, the convictions and 35-year sentences were set aside and the appellants ordered released.

Outcome

Convictions quashed, sentences set aside, and appellants ordered released immediately

Facts

Appellant no.1 married the deceased, a British national, in 2007. They set up businesses in Entebbe but developed marital differences and separated in 2012. On the night of 8 March 2013, the deceased left his bar with PW6 and drove home. On entering his gate, shots were fired; he turned his car and drove out, with PW6 dropping out near the gate after being hit. The deceased died of gunshot wounds in his car at a hospital entrance. Appellant no.2, an armed guard, did not shoot back at the assailants, taking cover behind the gate. The identities of the assailants were never established, and PW6 could not identify them. Evidence indicated a sexual relationship between appellant no.1 and appellant no.3, and that the deceased had told several people that his wife (appellant no.1) had threatened to kill him. No threatening messages were extracted from any phone and no threats were shown to have been reported. Investigations left unexplored leads, including cars and boda bodas near the scene.

Issues

  1. Whether the appellants participated in the murder of the deceased so as to be liable as joint offenders under a common intention.
  2. Whether the prosecution proved participation beyond reasonable doubt on the basis of circumstantial and hearsay evidence.
  3. Whether evidence of prior threats by appellant no.1, recounted by others, was admissible and sufficient to implicate her.

Orders

  • Appeals allowed.
  • Convictions against the appellants quashed.
  • Sentences imposed upon the appellants set aside.
  • Immediate release of the appellants ordered.

Rules and key headnotes

Criminal Evidence — Hearsay — Prior Threats Recounted by Third Parties
Evidence of prior threats to kill which is recounted only by third parties to whom the deceased spoke, and which is not independently proved, is inadmissible hearsay and should neither be admitted nor relied upon to establish an accused's participation in murder.
Criminal Evidence — Circumstantial Evidence — Inference of Guilt
Before a court draws an inference of guilt from circumstantial evidence, it must be satisfied that the inculpatory facts are incompatible with innocence and incapable of explanation on any other reasonable hypothesis, and that there are no co-existing circumstances weakening or destroying the inference of guilt.
Common Intention — Joint Offenders under Penal Code Act s.20 — Proof of Participation
Liability as a joint offender under a common intention requires evidence of actual participation in the unlawful purpose; mere proof of motive or of a relationship between accused persons, without corroborating evidence of participation, cannot sustain the doctrine of common intention.
Burden and Standard of Proof — No Adverse Inference from Silence
The burden of proving each ingredient of an offence beyond reasonable doubt lies on the prosecution and never shifts save in exceptional cases; the fact that an accused remains silent or does not testify in defence does not amount to evidence of guilt.
Dying Declaration — Statement Not Amounting to Dying Declaration
A statement by the deceased that his wife wanted to kill him, made during a shooting where the assailants were unknown, does not amount to a dying declaration and cannot implicate the person named.

Legislation cited (7)

Cases cited (11)

  • [1995] UGSC 4
  • Pandya v R [1975] E.A 336
  • [1998] UGSC 20
  • [1998] UGSC 22
  • Waihi and another v Uganda [1968] 1 EA 278
  • Woolmington v D.P.P, (1935) AC 462
  • Miller v Minister of Pensions, [1947] 2 ALL E.R372
  • Ssekitoleko v Uganda, [1974] EA 531
  • Simoni Musoke vs. R. [1958] E.A. 715
  • [2004] UGSC 24
  • Teper vs. R. [1952] A.C. 480

Full judgment

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Masika Fina & 2 Others v Uganda (Criminal Appeals No. 221 & 227 of 2017) [2020] UGCA 2034 (10 March 2020)
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.