No.441 P.C Ismail Kisegerwa & anoer v Uganda (Cr.Appeal No.6 of 1978)
Observed later treatment
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Holding
The Court of Appeal dismissed the appeals of two police officers convicted of manslaughter after shooting dead an unarmed suspect fleeing arrest. It held that killing to effect arrest is justified only where there is an apparent necessity; here the suspects were unarmed, posed no danger, and no property was at risk, so the force was unreasonable and excessive. Applying s.22 of the Penal Code, the Court held that the doctrine of common intention applied since both appellants fired in pursuit of an unlawful common purpose that developed in the course of events, making it unnecessary to determine which shot killed the deceased. The Court upheld the 15-year sentence as neither harsh nor excessive.
Outcome
Appeals of both appellants dismissed; convictions and 15-year sentences for manslaughter upheld
Facts
On 6th March 1976, the two appellants, police officers attached to the Naguru Public Safety Unit, were on night patrol, each armed with a self-loading rifle and 20 rounds of ammunition. Near 3 a.m. at Wandegeya they saw two men standing at the door of a house and suspected they were about to commit burglary. As the officers stopped and reversed their vehicle, the two men ran. The appellants gave chase and opened fire, killing one of them, a Makerere Law student named Paul Serwanga. Each appellant admitted firing one shot; one aimed at the legs, the other claimed his gun went off accidentally. It could not be established whose shot killed the deceased. Examination of the door revealed no signs of breaking; the suspects were unarmed and carried no weapons or house-breaking instruments, and the officers' lives were not in danger. Medical evidence showed the deceased was shot at close range. The appellants raised a defence of justifiable homicide, which the trial judge rejected, convicting them of manslaughter.
Issues
- Whether the force used by the police officer appellants in effecting arrest was reasonable, and if not, whether the killing amounted to murder or manslaughter.
- Whether the doctrine of common intention under s.22 of the Penal Code applied where both appellants fired but it could not be established whose shot killed the deceased.
- Whether the trial judge was required to make a finding as to which appellant fired the fatal shot before convicting both of manslaughter.
- Whether the sentence of 15 years' imprisonment was harsh and excessive.
Orders
- The appeal of each appellant is dismissed.
- Conviction for manslaughter upheld.
- Sentence of 15 years' imprisonment upheld.
Rules and key headnotes
Legislation cited (2)
Cases cited (7)
- Muhidini -vs- R [1962] E.A. at p.388
- R vs- Tabulayenka s/o Kirya and Others [1943] 10 E.A.C.A. 51
- Andrea Mutebi and Anor -vs- Uganda Cr. App. 144/75 E.A.C.A
- P -vs- Okute [1941] 8 E.A.C.A. at p.80
- Wanjiro Wamiro -vs-R [1955] 22 E.A.C.A. 521 at p.52
- R -vs- Salmon [1880] 6 Q.B 79, C.C.R.
- Gitau -vs- R [1967] E.A. 449
Cases citing this judgment (2)
How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.