Wakilii

Uganda v Nkonge (Criminal Session Case 429 of 2007)

High Court · [2009] UGHC 248 · 2009 Convicted — Death Sentence AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for murder
Decision
Accused convicted of murder and sentenced to death

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the prosecution proved beyond reasonable doubt that the accused participated as a principal offender in the murder of Nalubale Teopista. The accused was convicted of murder after the court accepted the evidence of PW5, a child witness who testified on oath, that he saw the accused holding the deceased by her legs while the herdsman cut her neck with a panga. The accused's alibi was rejected as belated and false. The accused was sentenced to death.

Outcome

Accused convicted of murder and sentenced to death

Facts

On 8 November 2006, Nalubale Teopista was murdered at Namasujju village, Nakaseke District. PW5, a child of tender age, testified that he was guarding the accused's rice garden when he heard a woman wailing. From a distance of about 50 meters, he saw a herdsman cutting the deceased on the neck with a panga while the accused held her by the legs. The deceased had deep cut wounds on her neck and palms. Her body was dumped in a thick bush about 15 meters from the scene. A post mortem examination confirmed the cause of death as severe hemorrhage due to cut wounds. PW5 was the son of the accused and disappeared from home for over a year before revealing what he had witnessed. The accused denied participation and claimed he had returned home after delivering lunch to PW5 that day.

Issues

  1. Whether Nalubale Teopista is dead.
  2. Whether the death of the deceased was unlawfully caused.
  3. Whether the death of the deceased was caused with malice aforethought.
  4. Whether the accused participated in the killing of the deceased.

Orders

  • Accused convicted of murder contrary to sections 188 and 189 of the Penal Code Act.
  • Accused sentenced to death.

Rules and key headnotes

Murder — Elements of the offence — Burden of proof
In a charge of murder, the burden of proof of all ingredients of the offence rests on the prosecution throughout the trial and must be discharged beyond reasonable doubt. At the conclusion of the trial, any doubt that remains must be resolved in favour of the accused.
Defence — Alibi — Burden of proof
Where an accused person puts forward an alibi in answer to a criminal charge, he does not assume the burden of proving the defence. The burden of disproving the alibi or negativing it lies and remains on the prosecution throughout the trial.
Child witnesses — Evidence of children of tender age — Test for competence
A child of tender age is one under the age of 14 years, but not every child under that age is of tender age. The age of 14 years may be taken as a guideline, but the whole matter is left to the good sense of the court. The court must determine whether the child understands the nature of an oath and possesses sufficient intelligence to justify reception of the evidence.
Corroboration — Evidence of children — Requirements under section 40(3) of the Trial on Indictment Act
Where a child of tender age gives evidence not upon oath under section 40(3) of the Trial on Indictment Act, and that evidence is given on behalf of the prosecution, the accused shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating him or her. Corroboration in part corroborates the whole; if a material part of the child's evidence is corroborated, not only may that part be relied upon, but also the part which is not corroborated.
Murder — Malice aforethought — Inference from circumstances
Malice aforethought may be inferred from the nature of the weapon used, the manner of use of the weapon, the part of the body affected, the nature and extent of the injuries suffered, and the conduct of the assailants before and after the attack. Where the deceased's neck was almost severed by deep cuts with a panga, it is evident that the assailants intended the deceased to die or knew or ought to have known that death was an inevitable consequence.
Alibi — Requirement of early disclosure — Effect of belated disclosure
Where a person's defence is an alibi, he should bring it forward as soon as he can. If he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the interval. The belated disclosure of an alibi must go to the credibility of the defence. An alibi which is not put to the prosecution witness during cross-examination is of least value, if any, and may be rejected as false.
Common intention — Doctrine under section 20 of the Penal Code Act — Liability of participants
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 a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence. It is not necessary that the accused must have agreed or entered into a pact to commit the offence. Common intention may be inferred from their conduct, presence at the scene of crime, and their actions. If violence is used to execute the common intention and death results, all the participants are guilty of murder.

Legislation cited (7)

Cases cited (11)

  • Sekitoleko v Uganda [1967] EA 531
  • Uganda v Sebyala [1967] EA 204
  • Tomasi Omukono v Uganda [1978] HCB 171
  • Susan Kigula Sserembe and Another v Uganda (Criminal Appeal No. 7 of 2004)
  • R v Tarbhai Mohamedbhai [1943] 10 EACA 50
  • Ntale v Uganda [1968] EA 359
  • Festo Androa Asenua and Another v Uganda (Criminal Appeal No. 1 of 1998)
  • R v Sukha Singh S/o Wazir Singh and Others (1939) 6 EACA 145
  • Andrea Obonyo v Uganda [1962] EA 542
  • James Semwogerere v Uganda [1979] HCB 71
  • Susan Kigula Sserembe and Others v Uganda (Constitutional Appeal No. 3 of 2006)

Full judgment

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

Uganda v Nkonge (Criminal Session Case 429 of 2007) [2009] UGHC 248 (12 June 2009)
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.