Wakilii

Uganda v Isabirye (HCT-04-CR-SC-227 2013)

High Court · [2017] UGHCCRD 98 · 2017 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal trial in High Court on charges of murder and aggravated robbery
Decision
Accused convicted of two counts of murder and two counts of aggravated robbery; acquitted of two robbery counts

Observed later treatment

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Holding

Held that the accused, though not the gunman, acted with common intention under Penal Code Act s.20 with armed robbers who shot and killed two victims during a robbery at a roadblock. By ordering passengers to undress and hand over property to the gunmen, and later absconding with stolen items, the accused formed a common intention to prosecute the unlawful purpose of robbery. The deaths were a probable consequence of that purpose. Convicted of two counts of murder and two counts of aggravated robbery. Acquitted on two robbery counts for lack of evidence. Defence of insanity rejected.

Outcome

Accused convicted of two counts of murder and two counts of aggravated robbery; acquitted of two robbery counts

Facts

On 15 October 2012 at about 1:15 am, a taxi travelling from Kapchorwa to Kampala was ambushed at Namagumba bridge by four armed men who had placed an electric pole across the road as a barricade. The driver attempted to drive over the barricade and shots were fired. The vehicle overturned. The driver Cherop Michael and passenger Agnes Khaintsa died from gunshot wounds. The accused, who had been picked up as a passenger along the route and wore dark shades at night, immediately ordered the surviving passengers to undress and hand over their property, which he passed to the armed robbers outside. He boxed one victim who refused to remove her underwear. The accused then disappeared through the vehicle boot. He was later found on the roadside in possession of stolen property including phones, a jacket, and clothing belonging to the victims. When taken to the LC1 Chairman, the accused sorted the stolen items into good and bad, abandoned the old items, and refused to disclose his location to people calling the stolen phones.

Issues

  1. Whether the death of Cherop Michael occurred and was unlawfully caused with malice aforethought.
  2. Whether the death of Agnes Khaintsa occurred and was unlawfully caused with malice aforethought.
  3. Whether the accused participated in the murders of Cherop Michael and Agnes Khaintsa.
  4. Whether the accused participated in the aggravated robberies charged in counts 3, 4, 5, and 6.
  5. Whether the accused acted with common intention with the armed robbers.
  6. Whether the defence of insanity was available to the accused.

Orders

  • Accused found not guilty and acquitted of count 3 (robbery of Musinguzi Gordon).
  • Accused found not guilty and acquitted of count 5 (robbery of Sande Kaps).
  • Accused found guilty and convicted of count 1 (murder of Cherop Michael).
  • Accused found guilty and convicted of count 2 (murder of Agnes Khaintsa).
  • Accused found guilty and convicted of count 4 (aggravated robbery of Salimo Patrick).
  • Accused found guilty and convicted of count 6 (aggravated robbery of Chekwel Vanice).

Rules and key headnotes

Murder — Common Intention — Section 20 Penal Code Act — Participation Without Direct Act
Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such nature that its commission was a probable consequence of that purpose, each of them is deemed to have committed the offence. It is not necessary that the accused pulled the trigger; participation in the joint criminal enterprise with knowledge of its probable consequences suffices for conviction of murder where death results.
Common Intention — Proof by Inference — Presence, Actions, and Failure to Disassociate
To prove common intention it is not necessary to prove prior agreement between the assailants. The prosecution will have done enough if it proves the intention by inference from the accused's actions, including presence at the scene of crime, actions or omissions while there, and failure to disassociate from the attack.
Murder — Malice Aforethought — Inference from Weapon and Injury
Malice aforethought is a state of mind which is hardly proved by direct evidence. In considering whether there was malice aforethought, the court must consider the type of weapon used, whether that weapon is lethal, the type of injuries inflicted, the part of the body affected and its vulnerability, and the conduct of the accused immediately before, during, or after the attack. A person discharging ammunition into the chest or head of another can only intend the death of the victim.
Insanity Defence — M'Naghten Test — Burden of Proof
For an accused to rely on insanity as a defence, he must prove that at the time of committing the act he was labouring under such a defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. Where medical examination shows the accused had a normal level of functioning and clear understanding of events at the time of the offence, and the accused himself states he was not insane, the defence of insanity is not available.
Aggravated Robbery — Ingredients — Participation Through Common Intention
Where the accused participated in a robbery by ordering victims to hand over property, passing items to armed accomplices, and later absconding with stolen property, the prosecution proves participation in aggravated robbery. Subsequent conduct including sorting stolen items into valuable and worthless categories and refusing to disclose location to callers on stolen phones demonstrates intention to permanently deprive victims of property.

Legislation cited (5)

Cases cited (8)

  • Sekitoleko v Uganda (1967) EA 531
  • Gusambizi S/O Wesonga & Others v Republic (1948) 15 EACA 63
  • Tubere v Republic (1945) 12 EACA 63
  • Uganda v Turwomwe (1978) HCB 182
  • Andrea Obonyo & Others v R (1962) 1 EA 542
  • Oponya v Uganda (1967) 1 EA 752
  • Birikadde v Uganda [1986] HCB 6
  • the Mc'Naughten Case (1843) 10

Full judgment

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

Uganda v Isabirye (HCT-04-CR-SC-227_2013) [2017] UGHCCRD 98 (13 January 2017)
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.