Wakilii

Uganda v Tumwebaze & Ors (Criminal Session Case No.0086 of 2004)

High Court · [2008] UGHCCRD 6 · 2008 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial before the High Court on a joint indictment for murder
Decision
Both 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 all four ingredients of murder beyond reasonable doubt: Kiiza Deo died from a fatal panga assault, the death was unlawfully caused with malice aforethought, and both accused participated in the fatal attack. The dying declaration of the deceased naming the two accused as his assailants was admissible and carried the same weight as sworn testimony because it was made in extremity at the point of death. PW2's identification evidence was credible despite his false testimony against a third accused, as the false part was severable. Both accused acted in concert pursuant to a common intention to cause grievous harm or death. Conviction for murder entered against both accused.

Outcome

Both accused convicted of murder and sentenced to death

Facts

On 27 June 2003 at Kajuma village, Kyenjojo District, the deceased Kiiza Deo was walking with PW2 (brother to A1 and village mate to A2) around 8pm. A1 and A2, each armed with a panga, stood by the pathway and attacked the deceased. A1 cut the deceased on the head and urged A2 to cut PW2 as well so there would be no evidence. PW2 fled. The deceased and PW2 fled to PW3, a teacher, who lived 300 metres away. The deceased, grievously injured with cut wounds to the fingers, face, and the back of his head (which had been cut off), named A1 and A2 as his assailants to PW3 before dying less than an hour after the assault. Post mortem examination established death was caused by excessive haemorrhage and cerebral damage from a deep cut to the skull inflicted by a sharp instrument. Both accused failed to respond to the emergency alarm, absented themselves from the deceased's burial, and vanished from the village after the killing.

Issues

  1. Whether the prosecution proved that Kiiza Deo died.
  2. Whether Kiiza Deo's death was unlawfully caused.
  3. Whether the death was caused with malice aforethought.
  4. Whether the two accused participated in causing the death of Kiiza Deo.
  5. Whether the dying declaration of Kiiza Deo naming the accused as his assailants was admissible and reliable.
  6. Whether the evidence of identification by PW2 was credible and free from the possibility of mistaken identity.
  7. Whether both accused shared a common intention to cause grievous harm or death under s.20 of the Penal Code Act.

Orders

  • Each of the accused convicted of the offence of murder.
  • Each of the convicts sentenced to death in the manner provided for by law.
  • Right of appeal explained to the convicts.

Rules and key headnotes

Murder — Ingredients — Burden of proof beyond reasonable doubt
The prosecution must prove all four ingredients of murder beyond reasonable doubt: (i) death of a human being; (ii) the death having been unlawfully caused; (iii) the causation done with malice aforethought; and (iv) the participation of the accused in causing the death. In proportion as the crime is enormous, so ought the proof to be clear.
Dying declaration — Admissibility and weight — Evidence Act s.30
A dying declaration made in extremity when the party is at the point of death and when every hope of this world has gone, and every motive to falsehood is silenced, has the same force as evidence given on oath. Where the deceased made the statement in a condition of settled hopelessness and expectation of imminent death, corroboration of the dying declaration is not required under Uganda law, although the common law rule in England is the same.
Malice aforethought — Inference from weapon, target, and force
Malice aforethought is established where the weapon used was lethal (such as a panga, classified as a deadly weapon under s.273(3) of the Penal Code Act), vulnerable parts of the victim were targeted, the injuries were intended to cause grave damage, and the conduct of the accused before, during, and after the attack points to guilt. Where a panga is used to inflict fatal injuries to the head with such force that the skull is sliced off, the assailant intended not only grievous harm but did so in the knowledge that such harm would probably, if not actually, occasion death.
Identification — Single witness — Need for caution and corroboration
Although a conviction may be based on the evidence of a single identification witness, the court must exercise special caution and warn itself of the need for care, as a mistaken witness can be convincing and even multiple witnesses can all be mistaken. The court must examine the circumstances in which the identification was made, particularly the length of time, distance, light, and familiarity of the witness with the accused. Where the quality of identification evidence is good (long period of observation, satisfactory conditions, prior knowledge of the accused), a court can safely convict even without other corroborative evidence, provided it adequately warns itself. The true test is whether the evidence can be accepted as free from the possibility of error.
Witness credibility — False testimony on one point — Severability
Where a witness has lied in a material particular, the court may nonetheless accept the portion of the evidence it finds substantially truthful, provided the false part is severable and the truthful part is supported by other evidence or by the sequence of events. It is open to a trial judge to find that a witness has been substantially truthful even though he lied in some particular respect. However, the court must exercise the greatest caution, and a deliberate untruth on a material point may detract from the favourable view of the witness's credibility.
Common intention — Joint liability under s.20 Penal Code 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 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 under s.20 of the Penal Code Act. The existence of a common intention must be proved, and it is only when the court can hold with judicial certitude that a particular accused preconceived or premeditated the result or acted in concert with others to bring about that result that the section applies. Where both accused were armed with pangas, stood together, one struck the deceased and urged the other to strike a witness, and neither dissociated himself from the enterprise, the inference is irresistible that both pursued a common intention to cause grievous harm or death.
Circumstantial evidence — Conduct after the offence — Flight, non-appearance, fabricated alibi
Where accused persons fail to respond to a traditional emergency alarm, absent themselves from the victim's burial, vanish from the village after the killing, and raise fabricated alibis at trial, such conduct is circumstantial evidence pointing to culpability. While circumstantial evidence standing alone must be inconsistent with any hypothesis other than guilt, circumstantial evidence that is not wholly inconsistent with innocence may nonetheless be of great value as corroboration of other evidence.

Legislation cited (7)

Cases cited (53)

  • Andrea Obonyo & Others v R [1962] EA 542
  • Bater v Bater [1950] 2 All ER 458
  • Hornal v Neuberger Products Ltd [1956] 3 All ER 970
  • Henry H Ilanga v M Manyoka [1961] EA 705
  • Kimweri v Republic [1968] EA 452
  • R v Gusambizi s/o Wesonga (1948) 15 EACA 65
  • Uganda v Bosco Okello alias Anyanya (Criminal Session Case No. 143 of 1991)
  • Uganda v Francis Gayira & Anor (Criminal Session Case No. 470 of 1995)
  • Festo Shirabu s/o Musungu v R (1922) 22 EACA 454
  • Dafasi Magayi and Others v Uganda [1965] EA 667
  • R v Sharmal Singh s/o Pritam Singh [1962] EA 13
  • DPP v Smith [1961] AC 290
  • R v Tubere s/o Ochen (1945) 12 EACA 63
  • Uganda v Fabian Senzah [1975] HCB 136
  • Lutwama & Others v Uganda (Supreme Court Criminal Appeal No. 38 of 1989)
  • Uganda v John Ochieng [1992-1993] HCB 80
  • Uganda v Turwomwe [1978] HCB 16
  • Siduwa Were v Uganda [1964] EA 596
  • Sharmpal Singh v R [1960] EA 799
  • Kabateleine s/o Nchwamba (1946) 13 EACA 164
  • Pakala Narayana Swami v Emperor (1939) AIR 47
  • Pius Jasunga s/o Akumu v Reginam (1954) 21 EACA 331
  • R v Muyovya bin Msuma (1939) 6 EACA 128
  • R v Premananda (1925) 52 Cal 987
  • Ramazani bin Mirandu (1934) 1 EACA 107
  • R v Okulu s/o Eloku (1938) 5 EACA 39
  • R v Eligu Odel (1943) 10 EACA 90
  • R v Said Abdulla (1945) 12 EACA 67
  • R v Mgundulwa s/o Jalo and others (1946) 13 EACA 169
  • Okethi Okale and Others v Republic [1965] EA 555
  • Tuwamoi v Uganda [1967] EA 84
  • Tindigwihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
  • Constantino Okwel v Uganda (Criminal Appeal No. 12 of 1990)
  • Uganda v George Wilson Simbwa (Supreme Court Criminal Appeal No. 37 of 1995)
  • R v Woodcock (1789) 1 Leach 500
  • R v Penny (1909) 2 KB 697
  • Badru Mwindu v Uganda (Court of Appeal Criminal Appeal No. 1 of 1997)
  • Roria v Republic [1967] EA 583
  • Bogere Moses & Anor v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Nabulere v Uganda (Criminal Appeal No. 9 of 1978)
  • George William Kalyesubula v Uganda (Supreme Court Criminal Appeal No. 16 of 1997)
  • Abdulla bin Wendo & Another v R (1953) 20 EACA 166
  • Moses Kasana v Uganda (Court of Appeal Criminal Appeal No. 12 of 1981)
  • Yowana Sserunkuma v Uganda (Supreme Court Criminal Appeal No. 8 of 1989)
  • Khatijabai Jiwa Hasham v Zenab d/o Chandu Nansi [1957] EA 38
  • Alfred Tajar v. Uganda, E.A.C.A. Crim. Appeal. No. 167 of 1969 (unreported)
  • Gabula Bright Africa v Uganda (Supreme Court Criminal Appeal No. 19 of 1993)
  • Mattaka and Others v Republic [1971] EA 495
  • Abdi Alli v R (1956) 23 EACA 573
  • Lekishon ole Sang'are alias Lakamondo ole Sang'are & Others v Reginam (1956) 23 EACA 626
  • Ezera Kyabanamaizi v R [1962] EA 309
  • R v John s/o Njiwa Samwedi [1962] EA 552
  • Barland Singh v Reginam (1954) 21 EACA 209

Full judgment

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Uganda v Tumwebaze & Ors (Criminal Session Case No.0086 of 2004) [2008] UGHCCRD 6 (15 October 2008)
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.