Wakilii

Nakato and Another v Uganda (Criminal Appeal No. 618 of 2014)

Court of Appeal · [2022] UGCA 30 · 2022 Conviction Upheld; Sentence Reduced 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
Conviction of both appellants for murder upheld; 1st appellant's 26-year sentence maintained; 2nd appellant's sentence reduced from 40 to 20 years imprisonment.

Observed later treatment

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Holding

The Court of Appeal dismissed the appeal against conviction for murder, holding that the circumstantial evidence of repeated threats, an attempt to cut the deceased with a panga a day before, and the mode of killing pointed irresistibly to the appellants' guilt and destroyed their alibis. The failure to state reasons for departing from the first assessor's acquittal opinion occasioned no miscarriage of justice. The first appellant's 26-year sentence was maintained. The second appellant's 40-year sentence was set aside as unjustified given the unexplained variance, his youth and first-offender status, and substituted with 20 years imprisonment.

Outcome

Conviction of both appellants for murder upheld; 1st appellant's 26-year sentence maintained; 2nd appellant's sentence reduced from 40 to 20 years imprisonment.

Facts

On the evening of 29 June 2009, Bukenya John Edward was found lying in a pool of blood on a roadside, having been cut with a sharp object on the head, neck and hand, with fingers chopped off. The first appellant, the deceased's daughter, had a longstanding land grudge with the deceased and had repeatedly threatened to cut him with a panga if he did not give more land to her son, the second appellant. Local Council attempts to settle the dispute failed. Three days before the death, the second appellant attempted to cut the deceased at a well but was thwarted by the presence of the deceased's young son. Multiple witnesses testified to the threats, and the deceased had told several people that if he were killed the first appellant would be responsible. There were no eyewitnesses to the murder. Both appellants raised alibis; the first said she was at home caring for twins, the second said he was at work. The prosecution relied on circumstantial evidence and dying declarations to prove participation.

Issues

  1. Whether the trial judge properly evaluated the evidence and rightly found that the ingredient of participation by the appellants was proved beyond reasonable doubt.
  2. Whether the appellants were properly convicted on circumstantial evidence despite their defence of alibi.
  3. Whether the failure by the trial judge to state reasons for departing from the first assessor's opinion vitiated the conviction.
  4. Whether the sentences of 26 and 40 years imprisonment were unjustifiable and harsh.

Orders

  • Appeal against conviction dismissed.
  • Sentence of 26 years imprisonment for the 1st appellant maintained.
  • Sentence of 40 years imprisonment for the 2nd appellant set aside.
  • 2nd appellant resentenced to 20 years imprisonment to be served from the time he was convicted.

Rules and key headnotes

Circumstantial Evidence — Inference of Guilt — Inculpatory Facts Incompatible with Innocence
In a case depending exclusively on circumstantial evidence, a court must, before convicting, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt, and that there are no co-existing circumstances which would weaken or destroy the inference of guilt.
Prior Threats — Proximity in Time and Place — Circumstances of the Transaction
Past threats on a deceased by an assailant can be good evidence leading to a conviction, but there must be sufficient proximity between the threats and the occurrence of death to form part of the transaction; general expressions of fear or suspicion not directly related to the occasion of death do not suffice.
Dying Declarations — Statements by a Person Since Deceased — Admissibility
Statements made by a person as to the cause of his death or the circumstances of the transaction resulting in his death are relevant and admissible under section 30 of the Evidence Act, whether or not the maker was under expectation of death at the time.
Defence of Alibi — Burden on Prosecution — Placing Accused at Scene of Crime
Where an accused raises a defence of alibi he bears no duty to prove it; the prosecution must destroy the alibi by placing the accused squarely at the scene of crime, which requires proof to the required standard that the accused was at the particular place where the attack was done at the material time.
Assessors — Departure from Opinion — Failure to State Reasons
Although section 82 of the Trial on Indictment Act requires a judge who departs from the majority opinion of assessors to state reasons in the judgment, failure to expressly state such reasons does not vitiate a conviction where no miscarriage of justice is occasioned, since the judge is not bound to conform to the opinion of assessors.
Sentencing — Appellate Interference — Unexplained Variance in Sentences for Same Offence
An appellate court may interfere with a sentence where it is manifestly excessive, wrong in principle, or where the trial court overlooked a material factor; an unexplained variance in sentences imposed on co-convicts of the same offence, absent individual acts warranting the difference, justifies resentencing.
Sentencing — Remand Period — Compliance with Article 23(8) of the Constitution
Where a sentencing court clearly demonstrates that it has taken into account the period spent on remand to the credit of the convict, the sentence will not be interfered with merely because the court used different words or did not expressly state the arithmetical deduction, provided the constitutional obligation in Article 23(8) has in effect been complied with.

Legislation cited (12)

Cases cited (18)

  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Uganda v Dick Ojok (1992-93) HCB 54
  • Budri and Faustino v Uganda (Criminal Appeal No. 0284 of 2014)
  • Jephline Lubega others vs Uganda SCCR APP No. 05 of 1992
  • Mureeba Janet and Another v Uganda (Supreme Court Criminal Appeal No. 13 of 2003)
  • Waihi and Another v Uganda [1968] EA 278
  • Simon Musoke v R [1958] EA 775
  • Sharma and Kumar v Uganda (Supreme Court Criminal Appeal No. 44 of 2000)
  • Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)
  • Obwalatum Francis v Uganda (Supreme Court Criminal Appeal No. 30 of 2015)
  • Orgem Richard v Uganda (Criminal Appeal No. 22 of 2014)
  • Akot Patrick and Others v Uganda (Criminal Appeal No. 60 of 2002)
  • Katende Semakula v Uganda (Supreme Court Criminal Appeal No. 11 of 1994)
  • Sekitoleko v Uganda [1968] EA 537
  • Kazarwa Henry v Uganda (Supreme Court Criminal Appeal No. 17 of 2015)
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Abelle Asuman v Uganda (Criminal Appeal No. 66 of 2015)
  • Rwabugande Moses (supra)

Full judgment

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Nakato and Another v Uganda (Criminal Appeal No. 618 of 2014) [2022] UGCA 30 (11 February 2022)
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.