Wakilii

Uganda v Rwambarali (Criminal Session Case 31 of 1987)

High Court · [1991] UGHC 31 · 1991 Acquittal Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial on indictment — kidnapping with intent to procure ransom
Decision
Both accused acquitted and discharged

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held, that the prosecution failed to prove beyond reasonable doubt that the accused persons participated in kidnapping or detaining Augustine Kamulindwa with intent to procure a ransom. The court found no evidence establishing common intention between the accused and the arresting officers Felix Ongom and Edward Kisembo. The complainant was lawfully arrested and detained on suspicion of treasonable offences during a period of insecurity. Grave inconsistencies in prosecution evidence regarding the alleged payment of a ransom created reasonable doubt, which the court resolved in favour of the accused. Both accused acquitted.

Outcome

Both accused acquitted and discharged

Facts

In May 1985, Augustine Kamulindwa (P.W.2), a senior administrative officer at Kahuna Tea Estate, was forcibly arrested by Felix Ongom, who was alleged to be a NASA (National Security Agency) operative, and taken to Fort Portal Police Station. Kamulindwa was detained in police cells without being told the reasons for his arrest. On 10 May 1985, he was interrogated by a committee that included Edward Kisembo, Apollo Muhindo, and others. He was accused of insulting President Milton Obote, collecting money for bandits, and supporting the Democratic Party. After interrogation, Kamulindwa was remanded in police cells and later transferred to Katojo Government Prison. On 8 June 1985, Kamulindwa's wife, Ephrazia (P.W.3), and daughter, Beatrice Kabwa (P.W.4), met with Moses Bigairwa (A2), the ADC in charge of security and head of NASA. P.W.3 testified that A2 demanded a ransom for her husband's release, initially requesting 3 million shillings but eventually settling on 1.5 million shillings. On 11 June 1985, P.W.3, P.W.4, and Edward Mboijana (P.W.7) delivered 1.5 million shillings to A2 at his home in the presence of Felix Rwambarali (A1) and Edward Kisembo. A2 took the money and promised to release Kamulindwa, but the latter remained in custody. Kamulindwa was eventually charged with terrorism on 17 July 1985 and released on 24 July 1985 when the NRM took power in the area. The prosecution alleged that A1 and A2, together with Ongom and Kisembo, kidnapped and detained Kamulindwa with intent to procure a ransom.

Issues

  1. Whether the accused persons participated in kidnapping Augustine Kamulindwa with intent to procure a ransom or to detain him with intent to procure a ransom.
  2. Whether the accused persons had a common intention with Felix Ongom and Edward Kisembo in the forceful taking away or detention of the complainant.
  3. Whether the arrest and detention of the complainant was unlawful.
  4. Whether the motive for the detention was to procure a ransom of 1.5 million shillings.
  5. Whether the prosecution had established a case to answer at the close of the prosecution case.
  6. Whether the court could properly convict the accused of the minor cognate offence of demanding money with menaces under section 86 of the Trial on Indictment Decree.

Orders

  • Both accused acquitted on both counts of kidnapping with intent to procure a ransom.
  • Cash bail deposited by the accused persons to be refunded to them.
  • Any documents taken from the accused persons for the purpose of releasing them on bail to be returned.

Rules and key headnotes

Kidnapping — Elements of Offence — Common Intention under Penal Code s.22
To establish the offence of kidnapping with intent to procure a ransom contrary to Penal Code s.235(1)(c), the prosecution must prove beyond reasonable doubt that the accused participated in forcefully taking away or detaining the victim against his will and that the act was unlawful with the motive of securing a ransom. Where two or more persons form a common intention to prosecute an unlawful purpose and an offence is committed as a probable consequence, each is deemed to have committed the offence under Penal Code s.22. Common intention may be inferred from the presence, actions, and omissions of the accused, and may develop during the course of events. The prosecution must establish that the accused shared a common intention to pursue a specific unlawful purpose that led to the commission of the offence.
Submission of No Case to Answer — Test and Principles
A submission of no case to answer may be properly upheld where (a) the prosecution has failed to adduce satisfactory evidence to establish one or more essential ingredients of the offence, or (b) the prosecution evidence has been so discredited through cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. A prima facie case does not mean a case proved beyond reasonable doubt. At the close of the prosecution case, the court is not required to decide finally whether the evidence is worthy of credit or weighty enough to prove the case conclusively; that can only properly be done when the defence case has been heard.
Lawful Arrest and Detention — Cognisable Offences — Treasonable Conduct
Where a person is arrested by police on reasonable suspicion of having committed cognisable offences such as insulting the President (Penal Code s.25, 26) or engaging in treasonable conduct, and is taken to a police station, screened by a properly constituted security committee during a period of insecurity, and later charged in court with terrorism (Penal Code s.28(3)(b)), the arrest and detention is lawful notwithstanding delays in bringing the suspect to court. If the purpose of arrest was to secure a ransom, the victim would not have been taken to a police station but to a location where ransom could be extracted. The fact that the accused did not thereafter release the detainee despite an alleged ransom payment negates the inference that the detention was for the purpose of procuring ransom.
Contradictions and Inconsistencies in Witness Testimony — Effect on Credibility
Grave inconsistencies in witness testimony, if not satisfactorily explained, will usually result in the evidence being rejected. Minor inconsistencies, however, will not ordinarily have that effect unless they point to deliberate untruthfulness. Where prosecution witnesses contradict each other on material facts such as the amount of money collected and paid, the source of funds, the number of negotiation meetings, and the parties present at critical events, these inconsistencies are grave and no reasonable tribunal directing itself on the evidence and the law could convict on such testimony. Great doubts arising from contradictions must be resolved in favour of the accused.
Minor Cognate Offences — Conviction under Trial on Indictment Decree s.86
Under Trial on Indictment Decree s.86, where a person is charged with an offence and facts are proved which reduce it to a minor cognate offence, he may be convicted of the minor offence although not charged with it. For this provision to apply: (a) the two offences must have a common origin; (b) the alternative offence must carry a lesser punishment; and (c) the accused must have been given a fair opportunity to defend against the alternative charge and must not be taken by surprise. Kidnapping with intent to procure ransom (Penal Code s.235(1)(c)) and demanding money with menaces (Penal Code s.279) do not have a common origin. Even if they did, the accused must be given an opportunity to address the alternative charge. The court cannot convict on a minor cognate offence where the accused has had no notice and no opportunity to defend against it.

Legislation cited (9)

Cases cited (22)

  • Ramnlal Bhatte 1957 Ba 332
  • Uganda vs Alfred Alen 1974 HCB 179
  • Wabilo alias Musa v R. 1960 BA 84
  • Uganda vs Lryazi Kasaija KCCS No. 99 of 1990, unreported
  • Regina vs Reid 1972 3 WLR Page 395
  • Grace Kimeze and another vs Uganda 1983 HCB P. 9
  • Haji Mohammed Sanyomo Birkade vs Uganda Court of Appeal, No. 12 of 1982 reported 1986 HCB Page 6
  • Uganda vs Azhari Abdu Bebbi 1984
  • Faddy Kalenzi vs Uganda Supreme Court of Uganda Criminal Appeal No. 4/88
  • Geoggrey Tinkcmalirwe and another vs Uganda S.C. U Cr. App. No. 3 of 1988
  • R v Okute 1941 EACA at P. 80
  • R vs Tabula Yenka
  • Ismail Kisegerwa and another vs Uganda Criminal Appeal No. 6 of 1973. Court of Appeal for Uganda Reported 1979 HCB Page 82
  • Uganda vs Sebyala and other 1989 EA P. 204
  • Difasi Magayi & others vs Uganda 1985 EA P. 667
  • Rwakasisi & An or vs Uganda Supreme Court of Uganda Cr, App. No. 8/88
  • Woolmington vs DPP
  • Ivan Kiiza and another High Court Cr. Session No. 28 of 1985, unreported
  • Tajar vs [2 EACA Cr. Appeal No. 167/169]
  • Leornard Aniseth v R 1963 EA P. 206
  • Mpanda vs Republic 1964 EA at P. 294
  • Raymond v R. 1981 SA F. 320 at Page 323

Full judgment

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Uganda v Rwambarali (Criminal Session Case 31 of 1987) [1991] UGHC 31 (20 November 1991)
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.