Wakilii

Uganda v Akello & Ors (Criminal Session Case No.0050 of 2016)

High Court · [2018] UGHCCRD 74 · 2018 Conviction for Minor Cognate Offence AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for kidnap with intent to murder
Decision
All four accused convicted of the minor cognate offence of kidnapping from lawful guardianship

Observed later treatment

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Holding

The court held that the prosecution proved the taking away of the victim by fraud and against his will, but failed to prove the intention to murder because the victim was recovered before six months had elapsed under section 243(2) of the Penal Code Act. The court convicted all four accused of the minor cognate offence of kidnapping from lawful guardianship contrary to section 240 and 242, finding them joint offenders under section 20 despite one accused's attempt to exonerate the others.

Outcome

All four accused convicted of the minor cognate offence of kidnapping from lawful guardianship

Facts

On 9 September 2015, Nsubuga Samuel, a three-year-old male child, was taken from his mother's restaurant at Kakajjo Zone, Kisenyi II Parish, Kampala. Witnesses saw the first accused, Akello Liz, with the child holding juice and cake, accompanied by the fourth accused, Etonga Aaron, who held a polythene bag. The child's mother reported the disappearance to police. The first accused was arrested and implicated the other accused persons. The child was recovered four months later in Apach District in poor health with multiple healing wounds inflicted by sharp cutting objects. The fourth accused changed plea mid-trial and pleaded guilty, claiming sole responsibility, but later appeared as a defence witness attempting to exonerate the co-accused. Medical examination confirmed the child was four years old at examination and had sustained multiple lacerations classified as harm.

Issues

  1. Whether the prosecution proved all ingredients of the offence of kidnapping with intent to murder contrary to section 243(1)(a) of the Penal Code Act.
  2. Whether the accused persons participated in the commission of the offence.
  3. Whether the prosecution proved the intention to murder the victim under section 243(2) of the Penal Code Act.
  4. Whether the court could convict the accused of the minor cognate offence of kidnapping from lawful guardianship under section 240 of the Penal Code Act.

Orders

  • All four accused found guilty of kidnapping from lawful guardianship contrary to sections 240 and 242 of the Penal Code Act.
  • All four accused convicted accordingly.

Rules and key headnotes

Kidnapping with Intent to Murder — Statutory Presumption — Six Month Period
Under section 243(2) of the Penal Code Act, the intention to murder a kidnapped victim is presumed only where the victim is not seen or heard of within six months or more from the date of kidnapping. Where the victim is recovered before the expiry of six months, the presumption does not apply and the prosecution fails to prove the intent to murder element of the offence.
Consent — Capacity of Children Under 14 Years
A child below 14 years is deemed incapable of giving consent to being taken away. Where it is alleged that such a child has been kidnapped, the absence of the child's consent is material and the child's incapacity to consent may be inferred from age alone.
Fraud in Kidnapping — Inference from Circumstantial Evidence
The use of fraud to take away a victim in a kidnapping case may be inferred from circumstantial evidence such as the giving of food or drinks to lure an infant victim away from the custody of a parent.
Joint Offenders — Common Purpose — Section 20 Penal Code Act
Where multiple accused persons act in prosecution of a common criminal purpose, each is deemed to have committed the offence under section 20 of the Penal Code Act, and the subsequent attempt by one accused to exonerate the others does not absolve co-accused where the evidence establishes their participation.
Minor Cognate Offences — Conviction Under Section 87 Trial on Indictments Act
Under section 87 of the Trial on Indictments Act, where a person is charged with an offence and the facts proved reduce it to a minor cognate offence, the accused may be convicted of the minor offence even though not charged with it. Where kidnapping with intent to murder is charged but the intent to murder is not proved, conviction for kidnapping from lawful guardianship under section 240 of the Penal Code Act is competent.

Legislation cited (6)

Cases cited (2)

  • R v D [1984] AC 778
  • Uganda v Musimami Wilson Kiviri and Others (High Court Criminal Case No. 31 of 2011)

Full judgment

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

Uganda v Akello & Ors (Criminal Session Case No.0050 of 2016) [2018] UGHCCRD 74 (20 February 2018)
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.