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Uganda v Kasolo alias Arsenal and 5 Others (Criminal Case 571 of 2020)

High Court · [2023] UGHCCRD 164 · 2023 Conviction Upheld / One Acquittal AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial in the High Court Criminal Division on multiple counts of kidnap with intent to murder, murder, and aggravated robbery
Decision
Five accused persons convicted on all counts of kidnap with intent to murder, murder, and aggravated robbery. One accused person acquitted and ordered released unless held on other charges.

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Holding

Held that the prosecution proved beyond reasonable doubt all elements of kidnap with intent to murder, murder, and aggravated robbery against accused persons A1 to A5. The victims were forcefully taken from their home, murdered in Mukono with blunt instruments causing fatal head trauma, and robbed of their vehicle, phones, and money. Eye-witness and accomplice testimony was corroborated by forensic evidence, call data records, mobile money withdrawal records, confessional statements, and scene reconstruction video. Five accused persons convicted on all counts; A6 acquitted for lack of evidence of participation.

Outcome

Five accused persons convicted on all counts of kidnap with intent to murder, murder, and aggravated robbery. One accused person acquitted and ordered released unless held on other charges.

Facts

On 28 August 2019 at approximately 10:00 PM, Nagirinya Maria Gateni and Kitayimbwa Ronald returned to Nagirinya's home in Nabisasilo Zone, Rubaga Division, Kampala. As their vehicle approached the gate, a group of men forcibly entered the vehicle, forced the occupants into the rear seats, and drove away. The assailants drove the victims to Mukono District where they murdered both victims by inflicting fatal blunt force trauma to their heads using a car jack and a log. The bodies were dumped in Nakitutuli valley, Lukojo Village, Mpoma Parish, Nama Sub-county, Mukono District, and recovered on 31 August 2019. The assailants stole the victims' vehicle (Reg. No. UBA 570V), mobile phones, and cash totalling UGX 284,000. Mobile money was withdrawn from the victims' accounts the following day. Post-mortem examinations confirmed both victims died from neurogenic shock and head injury following blunt head trauma. Police investigations involving call data analysis, mobile money transaction records, witness testimony, confessional statements, and scene reconstruction led to the arrest of six accused persons.

Issues

  1. Whether the prosecution proved the offence of kidnap with intent to murder contrary to Penal Code Act s.243(1)(a) beyond reasonable doubt.
  2. Whether the prosecution proved the offence of murder contrary to Penal Code Act ss.188 and 189 beyond reasonable doubt.
  3. Whether the prosecution proved the offence of aggravated robbery contrary to Penal Code Act ss.285 and 286(2) beyond reasonable doubt.
  4. Whether each of the accused persons participated in the commission of the offences.
  5. Whether the defences of alibi raised by A1 and A2 had merit.
  6. Whether the confessional statement of A1 was admissible and could be relied upon.
  7. Whether there was common intention among the accused persons to prosecute an unlawful purpose under Penal Code Act s.20.

Orders

  • Kasolo Coporiyamu (A1) convicted on all six counts.
  • Lubega Johnson (A2) convicted on all six counts.
  • Kalyango Nasif (A3) convicted on all six counts.
  • Kiseka Hassan (A4) convicted on all six counts.
  • Mpanga Sharif (A5) convicted on all six counts.
  • Katerega Sadat (A6) acquitted and ordered to be set free unless being held on other lawful charges.

Rules and key headnotes

Evidence — Accomplice evidence — Corroboration — Standard required
While a court may convict on the uncorroborated testimony of an accomplice under Evidence Act s.132, it is normally desirable that such evidence be corroborated with independent evidence rendering it probable that the accomplice's story is true and reasonably safe to act upon. Corroboration must be independent evidence connecting the accused with the crime, confirming in some material particular not only that the crime was committed but that the accused committed it.
Criminal Law & Procedure — Confessional statements — Retracted or repudiated confessions — Standard of proof
A trial court should accept a confession which has been retracted or repudiated with caution and must, before founding a conviction on such confession, be fully satisfied in all the circumstances that the confession is true. While corroboration is not mandatory in law, a court will normally only act on a retracted confession if it is corroborated in some material particular by independent evidence accepted by the court. However, the court may act on a confession alone if fully satisfied after considering all material points and surrounding circumstances that the confession cannot but be true.
Criminal Law & Procedure — Alibi — Failure to give notice — Effect on weight
Where an accused person fails to give notice to the prosecution and the court of his intention to rely on the defence of alibi before the hearing of the case or fails to furnish particulars of the defence to the prosecution before the close of the prosecution case, the court has discretion not to accord weight to that defence. Failure to raise an alibi at the earliest opportunity naturally raises doubt as to whether it has been fabricated in the interval, and deprives the prosecution of an opportunity to inquire into the defence.
Evidence — Circumstantial evidence — Standard of proof — Exclusion of other inferences
Circumstantial evidence must be a combination of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. Circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Such evidence must always be narrowly examined, and before drawing an inference of guilt it is necessary to be sure there are no other co-existing circumstances which would weaken or destroy the inference.
Criminal Law & Procedure — Common intention — Section 20 Penal Code Act — What must be proved
Under Penal Code Act s.20, to make the doctrine of common intention applicable it must be shown that the accused shared with the perpetrator of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence. An unlawful common intention does not require a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions, and the omission of any of them to disassociate himself from the act, though mere presence at the scene of crime is not conclusive proof of common intention.
Evidence — Right to silence — Adverse inference from failure to cross-examine — Limitations
Although an accused has a right to silence in criminal proceedings, this right is not absolute. An adverse inference can be drawn when the accused fails to challenge the evidence of the prosecution in cross-examination on a material or essential point, leading to an inference that the evidence is accepted subject to it being assailed as inherently incredible or possibly untrue. However, a conviction cannot be based on inference alone drawn from silence; there must be some other evidence because inference is weak evidence.
Criminal Law & Procedure — Murder — Malice aforethought — Inference from nature and location of injuries
Malice aforethought under Penal Code Act s.191 may be established when harm is directed at a sensitive and vulnerable part of the body. For a court to infer that an accused killed with malice aforethought, it must consider whether death was a natural consequence of the act that caused the death and whether the accused foresaw death as a natural consequence. The type and size of weapon used, the amount of force applied, and the part of the body where injury was inflicted are relevant factors in determining whether malice aforethought existed.

Legislation cited (12)

Cases cited (22)

  • Wilmington v DPP [1935] AC 462
  • Uganda v Musimami & 2 Others (Criminal Session Case No. 31 of 2011)
  • Uganda v Mwesigwa Jamada & 3 Others (High Court Criminal Session Case No. 1348 of 2016)
  • R v Gusambizi s/o Wesonga (1948) 15 EACA 65
  • R v Tubere s/o Ochen (1954) EACA 63
  • Akol Patrick & Others v Uganda (2006) HCB Vol. 16
  • Nanyonjo Harriet & Another v Uganda (Criminal Appeal No. 24 of 2002)
  • Sula Kasiira v Uganda (Criminal Appeal No. 20 of 1993)
  • Sekitoleko v Uganda [1967] EA 531
  • Bogere Moses v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Moses Bogere & Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Nasolo v Uganda (Criminal Appeal No. 14 of 2000) [2003] EA 181
  • R v Baskerville [1916] 2 KB 658
  • Serunkuma Edirisa & Others v Uganda (Criminal Appeal No. 147 of 2015)
  • Festo Androa Asenua & Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1998)
  • Tuwamoi v Uganda (1967) EA 84
  • Topher v R (1952) AC 489
  • James Sawoabiri & Another v Uganda (Criminal Appeal No. 5 of 1990)
  • Festo Androa Asenwa & Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1998)
  • Kasumba Kenneth & Others v Uganda (Court of Appeal Criminal Appeal No. 23 of 2016)
  • Uganda v Sunday Herbert (High Court Criminal Case No. 162 of 2021)
  • Juma Ramadhan Vs Republic Cr. App. No. 1 of 1973 (unreported)

Full judgment

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Uganda v Kasolo alias Arsenal and 5 Others (Criminal Case 571 of 2020) [2023] UGHCCRD 164 (19 October 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.