Wakilii

Uganda v Sekyewa & 4 Ors (Criminal Session Case No. 064 of 2008)

High Court · [2012] UGHC 296 · 2012 Mixed — Partial Convictions and Acquittals AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial on joint indictment for murder and aggravated robbery
Decision
A2 convicted of murder and aggravated robbery; A1 convicted of receiving stolen property; A3, A4 and A5 acquitted and discharged

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Holding

Five accused were tried for murder and aggravated robbery arising from the killing of a boda boda rider and theft of his motorcycle. The court convicted A2 (Mwanje Bashir) of both murder and aggravated robbery on the basis of his corroborated confession and possession of the stolen motorcycle. A1 (Sekyewa Ahamed) was acquitted of both counts but convicted of the lesser offence of receiving stolen property after evidence showed he received and sold the motorcycle knowing it was stolen. A3, A4 and A5 were acquitted of all charges as the only evidence against them was the uncorroborated confession of A2, which constituted evidence of the weakest kind and could not form the basis of conviction.

Outcome

A2 convicted of murder and aggravated robbery; A1 convicted of receiving stolen property; A3, A4 and A5 acquitted and discharged

Facts

On 20 May 2008, Kazoora Geoffrey, a boda boda rider operating a Suzuki motorcycle owned by PW4 Luutu Geoffrey, disappeared with the motorcycle at Kakwanzi, Masaka District. Police investigation revealed that a black Suzuki motorcycle matching the description had been sighted at Bukomansimbi at the garage of Ssemanda Patrick, having been brought by A1 and A2 seeking a buyer. A1, A4 and A5 were arrested first; A2 and A3 were arrested subsequently. A2 recorded a charge and caution statement implicating himself and all co-accused at various degrees in the killing and robbery. The deceased's body was later recovered from the bush where it had been dumped, bearing two deep cut wounds and signs of strangulation. The head was almost severed and a corrosive substance had been poured on the body. Post-mortem examination confirmed death resulted from cut wounds and strangulation. Evidence showed A1 and A2 had taken the motorcycle to A3's shop at Nyendo seeking to pledge or sell it. A3 connected them to potential buyers. A1 eventually sold the motorcycle to one Yiga in Gomba District and shared the proceeds with A2. A4 pleaded alibi, claiming he was residing in Lugazi during the material time. A5 denied involvement.

Issues

  1. Whether the prosecution proved the essential ingredients of murder beyond reasonable doubt.
  2. Whether the prosecution proved the essential ingredients of aggravated robbery beyond reasonable doubt.
  3. Whether each accused person participated in the commission of the offences charged.
  4. Whether the charge and caution statement of A2 (a retracted confession) could be relied upon to ground a conviction.
  5. Whether the confession of a co-accused can form the sole basis for convicting other co-accused persons.
  6. Whether the indictment was defective for using outdated statutory language regarding the deadly weapon element of aggravated robbery.
  7. Whether A4's alibi defence was destroyed by the prosecution evidence.

Orders

  • A2 (Mwanje Bashir) convicted of murder contrary to sections 188 and 189 of the Penal Code Act.
  • A2 (Mwanje Bashir) convicted of robbery contrary to sections 285 and 286(2) of the Penal Code Act.
  • A1 (Hajji Sekyewa Ahamed) acquitted of murder.
  • A1 (Hajji Sekyewa Ahamed) acquitted of robbery.
  • A1 (Hajji Sekyewa Ahamed) convicted of receiving stolen property contrary to section 314 of the Penal Code Act.
  • A3 (Kalungi Othuman) acquitted of murder.
  • A3 (Kalungi Othuman) acquitted of robbery.
  • A4 (Senfuka Sulait) acquitted of murder.
  • A4 (Senfuka Sulait) acquitted of robbery.
  • A5 (Muhamudu Lubowa) acquitted of murder.
  • A5 (Muhamudu Lubowa) acquitted of robbery.
  • A3, A4 and A5 to be released from custody if no other charges pending.

Rules and key headnotes

Evidence — Confessions — Retracted Confessions — Admissibility and Weight
A retracted confession calls for great caution before it is accepted and before founding a conviction upon it. The court must be fully satisfied in all the circumstances that the confession is true. Usually the court will act upon a retracted or repudiated confession when it is corroborated in some material particulars by independent evidence accepted by the court, but corroboration is not necessary in law and the court may act on a confession alone if fully satisfied it is true after considering all material points and surrounding circumstances.
Evidence — Confessions — Co-accused Confessions — Evidential Value Against Other Accused
A confession by a co-accused can be taken into account against a fellow co-accused but it constitutes evidence of the weakest kind. It can only be used as lending assurance to other evidence and cannot form the basis of the case against a co-accused person. This is because to a co-accused, the confession is hearsay evidence which the co-accused cannot test or explain by way of cross-examination.
Evidence — Circumstantial Evidence — Standard Required for Conviction
In order to constitute a good basis for conviction, circumstantial evidence must be such as creates moral certainty of the guilt of an accused person. The evidence must not be capable of explanation upon any other hypothesis other than the guilt of the accused person.
Criminal Procedure — Indictments — Defective Particulars — Effect of Outdated Statutory Language
Where an indictment uses outdated statutory language following a legislative amendment but the departure does not cause the accused persons prejudice in understanding the charge or preparing their defence, and where the outdated language encompasses the amended requirement, the defect is not materially fundamental. A person who uses a deadly weapon must necessarily be in possession of that deadly weapon.
Evidence — Exhibits — Failure to Recover or Produce — Effect on Prosecution Case
Failure to recover or produce an exhibit in court is not fatal to the prosecution's case if witnesses who clearly saw it describe it adequately in court.
Criminal Law — Robbery — Aggravated Robbery — Deadly Weapon Element — Penal Code Amendment 2007
The Penal Code Amendment Act 2007, which came into force on 17 August 2007, amended section 286(2) by replacing the phrase 'uses or threatens to use a deadly weapon' with 'an offender is in possession of a deadly weapon'. The amendment aimed to expand the scope of the deadly weapon element at the scene of crime. It is no longer restricted to use or threat to use the weapon during, before or after the robbery; its mere possession at the scene of crime is sufficient.
Criminal Procedure — Alibi — Burden on Prosecution to Destroy Alibi
Where an accused person puts up an alibi defence, the prosecution must destroy that alibi and place the accused at the scene of crime. If the prosecution evidence does not destroy the alibi, the accused is entitled to an acquittal.

Legislation cited (6)

Cases cited (13)

  • Mawanda Edward v Uganda (Supreme Court Criminal Appeal No. 4 of 1999)
  • Gusambizi s/o Wesonga v R (1948) 15 EACA 65
  • Tuwamoi v Uganda [1967] EA 84
  • Erisa Isabirye vs. Uganda E.A.CA of 1969
  • Ondendo s/o Anzungu & Ors v R [1968] EA 239
  • Sulemani Waibi & 2 Ors v Uganda (Criminal Appeal No. 095 of 1973)
  • Ezera Kyabanamaizi v R [1962] EA 309
  • John Sserumaga & 3 Ors v Uganda (Supreme Court Criminal Appeal No. 31 of 1996)
  • Bogere Moses & Anor v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Kagunda Fred v Uganda (Supreme Court Criminal Appeal No. 14 of 1998)
  • R v Bukari s/o Abdallan (1949) 16 EACA 84
  • Simon Musoke v R [1958] EA 715
  • Uganda Vs. Katushabe 1988-1990 HCB 59

Full judgment

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Uganda v Sekyewa & 4 Ors (Criminal Session Case No. 064 of 2008) [2012] UGHC 296 (23 August 2012)
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.