THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO.01 OF 2015.

[CORAM: TUMWESIGYE, KISAAKYE, OPIO-AWERI, MWONDHA,
TIBATEMWA-EKIRIKUBINZA, JJSC.]

BETWEEN

JAMADA NZABAIKUKIZE

.....•.....•............•..........
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

AND

APPELLANT

UGANDA

..........................................................
. . . .. . . . . . . . . . . . .. . . ... . .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . .

RESPONDENT

[Appeal from the decision of the Court of Appeal at Kampala (Kasule,
Mwangusya and Egonda Ntende, JJA)) Criminal Appeal No. 0400 of
2014 dated 18^th December) 2014.]

JUDGMENT OF THE COURT

This is a second appeal from the decision of the High Court delivered
by Owiny-Dollo J on 25^th November 2009 Vide Criminal Session
Case No. 0077 of 2007, Fort Portal Circuit held at Kasese.

The background facts

The case of the prosecution was that on 21 st January 2007 at about
7.30 p.m., the deceased (Alivera Nkwano Nalongo) was at home with
her step daughter (PW 2) in Ruhita village, Kasese District. On the
said date, the appellant, brother in law to the deceased's co-wife

1

and uncle to PW2 - together with four others, who were acquitted,
went to the home of the deceased. The deceased and PW2 were
seated in the compound of their home when the appellant and
another man called at the deceased's house. The appellant was
offered a chair to sit while PW2 went into the house to pick another
chair for the other guest. As PW 2 was coming out of the house with
the chair, she saw the appellant grabbing the deceased and

stabbing her. She ran back inside the house and sounded an
alarm. Some people responded to the alarm but found the deceased
dead and the assailants had fled. The medical Doctor's report
showed that the deceased had died due to excessive bleeding from
wounds sustained from a sharp object like a panga or knife.

The appellant however denied having been at scene of crime on the
fateful day. He said that on the day the crime was committed, he
was at his home in Mubende and that in fact he had never been to
Kasese in his life.

Despite the alibi raised, the trial Judge found the appellant guilty of
murder contrary to Sections 188 and 189 of the Penal Code Act and
sentenced him to life imprisonment.

The appellant appealed against his conviction and sentence to the
Court of Appeal on two grounds, one, that the learned trial Judge
erred in law and fact when he relied on the evidence of a single
identifying witness in absence of corroborating evidence; and two
that the sentence given by the learned trial Judge was illegal,
manifestly excessive, harsh and unfair in the circumstances.

The Court of Appeal held that the conditions prevailing at the time
of the attack favoured correct identification. That there was light
which enabled the witness (PW 2) to recognize the appellant who
was not a stranger to her. The Court therefore dismissed the appeal
against the conviction.

2

-,

On ground 2, the Court of Appeal found that in sentencing the
accused, the High Court had not considered the period the
appellant spent on remand. Furthermore that the trial court had
not complied with Section 98 of the Trial on Indictment Act which
obliges the court to give an opportunity to an accused to say
something before the trial judge passed sentence. It was also the
finding of the court that the accused was a first offender. The
learned Justices of Appeal held that on the basis of the above
factors, the court would interfere with the discretion of the trial
judge. The appellant was sentenced to 20 years imprisonment
commencing from the date of his conviction.

Dissatisfied with the decision of the Court of Appeal, the appellant
appealed to this Court on the following grounds:

1.  

The learned Justices of Appeal erred in law when they
failed to properly re-evaluate the evidence adduced at trial
to come to their own conclusion hence occasioning a
miscarriage of justice.

2.   

The learned Justices of Appeal erred in law when they
wrongly exercised their discretion and imposed a harsh
and excessive sentence of 20 years imprisonment.

Representation

At the hearing of the appeal, the appellant was represented by Mr.
Emmanuel Muwonge, on State Brief whereas the respondent was
represented by Mr. Okello Richard, Principal State Attorney in the
chambers of the Director of Public Prosecutions.

Appellant's submissions

Ground 1

The appellant submitted that although the Justices of Appeal
rightly stated the law on the duty of a first appellate court to

3

reevaluate the evidence and come to its own conclusion, it did not
actually go ahead to carry out that duty. He specifically faulted the
learned Justices for failure to scrutinize the evidence of PW 2, a
single identifying witness. According to counsel, the conditions
favourable for correct identification were not present and therefore
PW 2 did not correctly identify the appellant at the scene of crime.
Further that, PW 2 was engulfed with fear which adversely affected
her ability to identify the appellant.

That although the learned Justices of the Court of Appeal rightly
stated the law on handling the evidence of a single identifying
witness as expounded in Moses Bogere vs. Uganda SCCA No. 1 of
1997 and Abdullah Nabulele & 2 Others vs. Uganda Criminal
Appeal No.9 of 1978, they misapplied the principles and thereby
came to a wrong conclusion that there was correct identification.

Ground 2

On this ground, counsel for the appellant submitted that although
the learned Justices of Appeal considered the period the appellant
had spent on remand as well as the mitigating factors, a sentence of
20 years imprisonment was harsh. He thus prayed that the
sentence be substituted with a lesser sentence.

Respondent's submissions

Ground 1

In regard to ground 1, the respondent submitted that the learned
Justices of Appeal rightly stated the law and applied it to the facts
of the present case.

Ground 2

The respondent submitted that ground 2 of the appellant's
memorandum and the arguments there under were not sustainable
in law. Counsel for the respondent relied on Section 5 (3) of the
Judicature Act which prohibits appeals to the Supreme Court on

4

the severity of a sentence. Counsel thus argued that ground 2
ought to be dismissed.

Analysis of Court

Ground 1

The appellant specifically faulted the learned Justices of Appeal for
upholding his conviction which was primarily based on the evidence
of a single identifying witness.

Counsel for the appellant contended that the crime having taken
place at 7.30 p.m. when it was dark, the conditions that warranted
correct identification were absent. That as such, the appellant was
not placed at the scene of crime. Further, that the identifying
witness was engulfed with fear which adversely vitiated her ability
to correctly identify the assailant at the scene of crime.

The law on identification by a single witness has been laid out in
several cases. The leading authority is that of Abdullah Bin Wendo
and another vs. R (1953) 20 EACA 583. The law was further
developed in the authorities of Abdulla Nabulere vs. Uganda
Criminal Appeal No.9 of 1978 and Bogere Moses vs. Uganda
(supra). The principles deduced from these authorities are that-

         i)       Court must consider the evidence as a whole.

         ii)     The court ought to satisfy itself from the evidence whether
the conditions under which the identification is claimed to
have been made were favourable or difficult.

         iii)    The court must caution itself before convicting the accused
on the evidence of a single identifying witness.

         iv)     In considering the favourable and unfavourable conditions,
the court should particularly examine the length of time the
witness observed the assailant, the distance between the
witness and the assailant, familiarity of the witness with the
assailants, the quality of light, and material discrepancies
in the description of the accused by the witness.

5

".

In re-evaluating the evidence of the single identifying witness, the
Court of Appeal stated as follows:

"In. the case before us, according to PW 2) the time of the attack was
7.30 p. m. and it was getting dark. She together with the deceased
were still outside. That is where they received both the appellant and
Damaseni. This is an indication that it was not yet dark. The
appellant was offered a chair as a visitor whom PW 2 knew as her
uncle. This could not have been done in darkness. The relationship
between the witness and the appellant is another consideration in
determining the reliability of the identifying witness and in the case
of Nabulere vs. Uganda, the court makes a distinction between a
witness who recognizes an assailant and one who merely identifies
him or her ... In this case, PW 2 recognized the appellant whom she
offered chair so when she saw him stabbing the deceased, she
already knew him. She was bringing a chair to a second visitor
whom she also knew. When she saw the appellant stabbing the
deceased, she was only a meter away. »

After re-evaluating the evidence, the Court of Appeal concluded as
follows:

((We have carefully re-evaluated the factors that could have made it
difficult for the identifying witness to identify the appellant together
with the factors that favoured identification free from error. In our
view, the conditions prevailing at the time of the attack favoured
correct identification. In summary, there was still light which enabled
the witness to recognize the appellant who was not a stranger to her.
She recognized him when she offered him a chair and again when
she saw him stabbing the deceased. It was not a fleeting glance. n

We have analyzed in detail, the findings of the Court of Appeal. We
are satisfied that in re-evaluating the evidence of PW2, the Court of
Appeal was guided by the principles established by case law already

6

outlined in this judgment, in regard to identification by a single
witness. The learned Justices weighed both the factors favouring
correct identification and those that made the identification difficult
before reaching the conclusion that the appellant had been positively
identified.

In dealing with the defence of alibi raised by the appellant, the Court
of Appeal was guided by the Supreme Court case of Moses Bogere
vs. Uganda (supra) where the learned Supreme Court Justices
directed as follows:

What then amounts to putting an accused person at
the scene of crime? We think that the expression
must mean proof to the required standard that the
accused was at the scene of crime at the material
time. To hold that such proof has been achieved, the
 Court must not base itself on the isolated evaluation
of the prosecution evidence alone, but must base
itself upon the valuation of the evidence as a whole.
Where the prosecution adduces evidence showing
that the accused person was at the scene of crime
and the defence not only denies it but also adduces
evidence showing that he was elsewhere at the
material time, it is incumbent on the court to
evaluate both versions judicially and give reasons
why one and not the other version is accepted. It is a
misdirection to accept the one version and hold that
because of that acceptance per se, the other version
is unsustainable. (Our emphasis)

After restating the above principle, the Court of Appeal stated as
follows:

"In the instant case we have examined the circumstances under
which the appellant was allegedly identified at the scene as well as
bearing in mind his own version that he was away in Mubende and

7

·
..

not Kasese on the evening the deceased was killed. The appellant
also denied knowledge of the witness who testified that she knew
him and saw him at Kasese. The conditions favouring correct
identification and those against have been carefully considered as
required by law and we recognize the danger of acting on the
evidence of a single identifying witness as directed in the authorities
cited in this judgment. We are satisfied that the appellant's
identification at the scene was positive and free from error. Proof to
the required standard that the appellant was at the scene at the
material time has been achieved and his conviction is upheld. "

An alibi can be discredited either by prosecution evidence which
squarely places an accused at the scene of the crime or by
prosecution evidence which directly negates or counteracts the
accused's testimony that he was in a particular place other than at
the scene of the crime.

It is on record that the appellant denied ever having been to Kasese,
at the scene of crime and that on the material day, he was in
Mubende. However the evidence of PW2 who identified the appellant
at the scene of crime was cogent.

Having re-evaluated the evidence of PW2 alongside the evidence
relating to the alibi put forward by the appellant, the Court of Appeal
came to the conclusion that the appellant's alibi had been
discredited. We find no reason to depart from that finding. We
therefore come to the conclusion that the appellant was at the scene
of the crime on the day the assault occurred.

Ground 1 therefore fails.

Ground 2

Counsel for the appellant argued that a prison term of 20 years
imprisonment was severe. He prayed that it be reduced.

8

3.

"

First and foremost we have to point out that the ground of appeal
on severity of sentence is barred by law.

Section 5 (3) of the Judicature Act prohibits grounds of appeal
based on severity of a sentence given by a trial court. The Section
provides:

In the case of an appeal against a sentence ..., the
accused person may appeal to the Supreme Court
against the sentence ... on a matter of law, not
including the severity of the sentence.

Basing on the above provision of law, this Court has on proper
occasions dismissed grounds of appeal based on the harshness or
severity of a sentence. [See Sewanyana Livingstone vs. Uganda
SCCA No. 19 of 2006, Bonyo Abdul vs. Uganda, SCCA No. 07 of
2011].

In the premise, ground 2 of the memorandum of appeal is
incompetent and the submissions made there under unsustainable
in law.

Having found that all the grounds of this appeal lack merit, it is
hereby dismissed.

The appellant is to continue serving his sentence as meted out by
the Court of Appeal.

Dated at Kampala this 20th .. day of .. September ..... 2017.

JOTHAM TUMWESIGYE

JUSTICE OF THE SUPREME COURT.

9

..:

......

DR. ESTHER KISAA YE

JUSTICE OF THE            PREME COURT.

RUBBY OPIO-AWERI

JUSTICE OF THE SUPREME COURT .

..................................................... .

FAITH MWONDHA

JUSTICE OF THE SUPREME COURT.

.......................................

PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA
JUSTICE OF THE SUPREME COURT.

10

'_

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: TUMWESIGYE; KISAAKYE; OPIO-AWERI; MWONDHA; & TIBATEMWA-
EKIRIKUBINZA, JJ.S.C.]

5

10

CRIMINAL APPEAL NO 01 OF 2015

BETWEEN

JAMADA NZABAIKUKIZE ::::::::::::::::::::::::::] APPELLANT

AND

GANDA•.•..••..••.•.••................••..•.••.•..•....•. ] RESPONDENT
..................................................

[Appeal from the decision of the Court of Appeal at Kampala (Kasule,
Mwangusya & Engonda Ntende, JJA) dated 18t^h December, 2014 in Criminal
Appeal No. 0400 of 2014]

JUDGMENT OF DR. KISAAKYE, JSC

    15   This is a second appeal from the Judgment of the Court of Appeal
rendered in Criminal Appeal No. 0400 of 2014.

The background to this appeal and the parties submissions have been
well set out in the majority Judgment of the Court, I will therefore not
repeat them here in detail. Suffice to say that Jamada Nzabaikukize,

    20 (hereinafter referred to as the appellant) was convicted of murder of one
Alivera Nkwano Nalongo, who was a co-wife to the appellant's sister. On
25^th November 2009, Owinyi-Dollo, J. (as he then was) sentenced him to
life imprisonment.

Being dissatisfied with his conviction and sentence, he appealed to the
25 Court of Appeal which upheld his conviction. The court however

1

e.

reduced his sentence from life imprisonment to 20 years imprisonment
commencing from the date of his conviction.

Dissatisfied with the decision of the Court of Appeal, the appellant
lodged a second appeal in this Court on the following two grounds of
5 appeal:

1.  

The learned Justices of the Court of Appeal erred in law when
they failed to properly re-evaluate the evidence adduced at trial
to come to their own conclusion hence occasioning a
miscarriage of justice.

10 2. The learned Justices of the Court of Appeal erred in law when
they wrongly exercised their discretion and imposed a harsh
and excessive sentence of 20 years.

I have had the benefit of reading in draft the majority Judgment of the
Court confirming both the conviction and sentence of the appellant. I

15        agree with the majority that this appeal against conviction and sentence
should be dismissed. However, I do not agree with the reasons given for
the majority's dismissal of ground 2 of appeal, which was about
sentence. For that reason, I am unable to sign the majority Judgment
and I have also found it necessary to write this separate Judgment on

20 that issue alone.

The majority has relied on section 5(3) of the Judicature Act to hold that
this Court is precluded from hearing appeals against the severity of
sentence.

Section 5(3) of the Judicature Act provides as follows:

25              "In the case of an appeal against sentence and an order other

than one fixed by law, the accused person may appeal to the

2

_.

Supreme Court against the sentence or order, on a matter of
law, not including the severity of sentence."

I note that this section bars any intending appellant and by implication
this Court from hearing an appeal against severity of sentence.

  5       I further note that this Court has previously held that in spite of the
provisions of section 5(3), it may consider an appeal against a sentence.
In Kiwalabye Bernard vs. Uganda, Criminal Appeal No. 143 of
2001, this Court held thus:

"The appellate court is not to interfere with the sentence

10                  imposed by a trial Court which has exercised its discretion on
sentence unless the exercise of the discretion is such that it
results in the sentence imposed to be manifestly excessive or so
low as to amount to a miscarriage of justice or where a trial
court ignores to consider an important matter or circumstances

15                  which ought to be considered when passing the sentence or
where the sentence imposed is wrong in principle. "

In my dissenting Judgment in Busiku Thomas v. Uganda, Criminal
Appeal No. 33 of 2011 (SC), I expressed my reservations on the
constitutionality of section 5(3) of the Judicature Act. Recently, in

        20           Mpagi Godfrey v. Uganda, Criminal Appeal No. 63 of 201 S(SC), I re-
echoed the need for Parliament to amend section 5(3) of the Judicature
Act to remove the restriction imposed on this Court not to hear appeals
against severity or excessiveness of sentence.

In my view, section 5(3) of the Judicature Act prohibits the Supreme
25 Court from doing what the Constitution has already permitted it to do
under Article 132(2) of the Constitution. This Article provides for
appeals to this Court as follows:

"(2) An appeal shall lie to the Supreme Court from such
decisions of the Court of Appeal as may be prescribed by

                           30               law."

3

· .

The provision is clear that an appeal shall lie to the Supreme Court from
{such decisions' of the Court of Appeal. The constitutional provision
does not say from 'such part of the decision' of the Court of Appeal. In
my view, the Constitution left the choice whether to appeal against the

5 whole of the decision or part of it with the intending appellant.

Furthermore, Article 126 of the Constitution places the exercise of
judicial power in Courts which exercise it on behalf of the people of
Uganda. However, the same Constitution was cognisant of the fact that
judicial officers in the course of exercising this judicial power, may err in

        10              law or fact. To address this eventuality, the Constitution set up an
appeal process which ends at the Supreme Court. It also suffices to note
that at each appellate level, the number of justices rehearing the matter

Increases.

The Constitution further requires all organs of the State and persons to
15 apply it. Courts of law are not exempt.

The framers of the Constitution, having provided for such an elaborate
appellate process, it was therefore wrong for Parliament through section
5(3) to restrict the role of the Supreme Court in criminal appeals to only
looking into conviction and illegal sentences only. In my view, it is

        20               inconceivable that in respect of criminal appeals, the Constitution only
envisaged that errors of law or fact could only occur in conviction and
imposition of an illegal sentence and not on the severity of sentence.
Such an interpretation causes an injustice to those appellants who wish
to appeal against sentences which they deem harsh or excessive.

        25               Having noted the error of Parliament in enacting section 5(3) of the
Judicature Act in terms as stated above, it is inexcusable for this Court
to continue endorsing a parliamentary error by continuing to dismiss
appeals against severity of sentence.

4

! •

Article 2 on the other hand provides for the supremacy of the
Constitution as follows:

"(1) This Constitution is the supreme law of Uganda and
shall have binding force on all authorities and persons

  5                                        throughout Uganda.

(2) If any other law or any custom is inconsistent with any
of the provisions of this Constitution, the Constitution
shall prevail, and that other law or custom shall, to the
extent of the inconsistency, be void."

       10               Thus from the above reasons and analysis, it is my view that
notwithstanding the provisions of section 5(3) of the Judicature Act, a
convict who contends that a sentence imposed on him or her is harsh
and excessive should have recourse in this Court to appeal against such
a sentence.

15        Turning to the facts of this case, I note that the Court of Appeal carefully
considered both the aggravating and mitigating factors presented by the
parties. I also note that the appellant killed the deceased in a brutal
manner. I therefore find that the sentence of 20 years imprisonment
imposed on the appellant by the Court of Appeal was neither harsh nor

20        manifestly excessive in the circumstances. In fact, when one takes into
account the circumstances under which the appellant killed the
deceased, it can even be argued that the sentence of 20 years was on the
lenient side. For this reason, I have found no merit in ground 2 of the
appeal. It therefore fails.

       25               Before I take leave of this matter, I wish to retaliate my concerns about
the need for consistency in our sentencing in criminal matters.

In our recent decision of Mpagi Godfrey (supra), this Court confirmed a
sentence of 34 years for murder through beating of a victim. In this
particular case, this Court has confirmed in the majority Judgment a

5

"

- [

sentence of 20 years for the appellant who travelled miles to his victim's
home and stabbed her several times in cold blood. The disparity of 14
years can neither be explained to the appellant, the victim's family, other
Court users or even the general public.

  5      Apart from the reasons already given why section 5(3) of the Judicature
Act should not be followed, it is obvious that the disparities cited above
emanate from the application of this section, which is clearly
inconsistent with several provisions of our Constitution. Such
disparities run contrary to the dictates of our Constitution which

        10              requires equal treatment of all persons before and under the law. This
includes persons accused and convicted of criminal offences.

This Court is a custodian of justice, and should not endorse such
provisions which result in not only glaring unconstitutionality but also
injustice. As I recently stated in my Judgment in Mpagi Godfrey

15        (supra), Parliament should immediately take action to amend section
5(3) of the Judicature Act to bring it in consonance with the
Constitution, which is the supreme law of the land.

Dated at Kampala this  20th day of September .. 2017