Wakilii

Seku v Uganda (Criminal Appeal No. 219 of 2015)

Court of Appeal · [2023] UGCA 104 · 2023 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 for murder upheld; death sentence set aside and substituted with 30 years imprisonment from date of conviction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal upheld the appellant's conviction for murder, finding that the trial Judge properly declared PW5 a hostile witness and correctly disregarded his expunged evidence, and that PW3, PW4 and PW6 positively identified the appellant attacking his brother with a panga in broad daylight, destroying his alibi. However, the Court held the death sentence manifestly harsh and excessive, finding the case did not fall within the 'rarest of the rare' category warranting death. Applying uniformity and consistency in sentencing, and deducting three years spent on remand, the Court set aside the death sentence and resentenced the appellant to 30 years' imprisonment.

Outcome

Conviction for murder upheld; death sentence set aside and substituted with 30 years imprisonment from date of conviction

Facts

The appellant and the deceased, Olamor Stephen, were stepbrothers embroiled in a long-standing family land dispute over land at Kakoro village, Pallisa District. On 17 July 2007, the deceased went to the disputed land with his son, local council officials, surveyors and two policemen to survey his land and erect boundary marks. As the deceased indicated boundaries, the appellant and his brother Tom Akora emerged from a swamp alleging the deceased was stealing their land. When their attempt to remove survey equipment was stopped, they attacked the deceased with pangas hidden in their trousers, cutting him repeatedly on the head, back and hand until he died. Onlookers fled. The cause of death was haemorrhage and brain damage from deep cut wounds. The appellant fled and went into hiding for several years before being arrested at his home on 24 April 2012. He was indicted for murder, raised an alibi that he was grazing cattle and cultivating, was convicted and sentenced to death by the High Court at Pallisa on 2 April 2015.

Issues

  1. Whether the trial Judge erred in evaluating the evidence and wrongly concluded that the appellant killed the deceased.
  2. Whether the trial Judge erred in dismissing the appellant's defence of alibi.
  3. Whether the death sentence imposed was manifestly harsh and excessive in the circumstances.

Orders

  • Ground one fails.
  • Ground two fails; the conviction is upheld.
  • The death sentence is set aside.
  • The appellant is resentenced to 30 years imprisonment to be served from the date of conviction.

Rules and key headnotes

Evidence — Hostile Witness — Effect of Expunged Testimony
Where a witness is declared hostile and cross-examined by the party calling him, his evidence cannot be relied upon against the accused, and a conviction is not undermined where the trial Judge did not rely on such expunged testimony.
Criminal Procedure — Defence of Alibi — Burden of Proof and Displacement
An accused who raises an alibi bears no duty to prove it; the burden remains on the prosecution throughout. Positive identification of the accused at the scene of crime in daylight by witnesses who knew him destroys the alibi.
Sentencing — Death Penalty — 'Rarest of the Rare' Test
A sentence of death may only be passed in exceptional circumstances in the 'rarest of the rare' cases where the alternative of life or other custodial sentence is demonstrably inadequate; a brutal murder alone does not necessarily bring a case within that category.
Sentencing — Uniformity and Consistency — Remand Deduction
In resentencing, the court must strive for uniformity and consistency with comparable cases and is enjoined under Article 23(8) of the Constitution to deduct time spent on remand before determining sentence.
Criminal Appeals — Duty of First Appellate Court
On a first appeal the court is required to re-evaluate all the evidence adduced at trial and draw its own inferences on all issues of law and fact.

Legislation cited (8)

Cases cited (18)

  • Okwonga Anthony v Uganda (Criminal Appeal No. 45 of 1999)
  • Okwonga Anthony v Uganda (Supreme Court Criminal Appeal No. 20 of 2000)
  • Baguma Fred v Uganda (Supreme Court Criminal Appeal No. 7 of 2004)
  • Bashasha Sharif v Uganda (Supreme Court Criminal Appeal No. 82 of 2018)
  • Bogere Moses v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Fr. Nasensio Begumisa and 3 Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Batala Vs Uganda [1974] 1 EA 402 (CAK)
  • Alowo v. Republic, [1972] E.A. 324
  • Sekitoleko vs Uganda [1967] 1 EA 531 (HCU)
  • Roria v Republic [1964] EA 583
  • Frank Ndahebe v Uganda (Supreme Court Criminal Appeal No. 2 of 1993)
  • AG versus Suzan Kigula and 417 others
  • Mbunya Godfrey versus Uganda
  • State versus Makwanyane [1995] (3) SA 391
  • Oyita Sam v Uganda (Court of Appeal Criminal Appeal No. 307 of 2010)
  • Uwihayimaana Molly v Uganda (Court of Appeal Criminal Appeal No. 103 of 2009)
  • Aharikundira Yustina v Uganda (Supreme Court Criminal Appeal No. 27 of 2015)

Full judgment

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

Seku v Uganda (Criminal Appeal No. 219 of 2015) [2023] UGCA 104 (16 March 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.