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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA
AT KAMPALA

(CORAM: KATUREEBE; C.J; TUMWESIGYE; KISAAKYE;
                  MWONDHA; TIBATEMWA; J.J.S.C.)

CRIMINAL APPEAL NO.03 OF 2014
BETWEEN

SALONGO SENOGA SENTUMBWE:::::::::::::::: APPELLANT

AND

GANDA.............................................................................. RESPONDENT

[Appeal from the judgment of the Court of Appeal (Kasule, Opio-Aweri and Kakuru, JJA)
dated 19^th December, 2013 in Criminal Appeal No. 102 of 2009]

JUDGMENT OF COURT

     20 Ssalongo Senoga Sentumbwe, the appellant, was tried and
convicted in the High Court (Eldad Mwangusya, J, (as he then was)
for the offence of kidnapping with intent to murder contrary to
Section 243 ( 1) (a) of the Penal Code Act, and sentenced to 16 years
imprisonment. His appeal to the Court of Appeal against both

25  conviction and sentence was dismissed, hence this appeal.

1

5 Background

The appellant and one Rashidah Nakawooya (PW6) were jointly
indicted for the offence of kidnap with intent to murder contrary to
s. 243(1)(a) of the Penal Code Act. It was alleged by the prosecution
that on 7th August, 2006, at Bwaise, Kawempe Division, in Kampala

       10   District a male child aged 2% years called Musa Serwadda alias
Muzei, son of Nakimera Mariam (PW2) and Kasujja Muhammad
(PW3), was taken away from his grandmother at Kawempe Market
and disappeared. The child was later found with Rashidah
Nakawooya (PW6) near a shrine belonging to the appellant. A crowd

     15   which gathered following an alarm wanted to lynch Rashidah
Nakawooya but police came and rescued her.

Police arrested Rashidah Nakawooya and the appellant and later
they were taken to court and indicted for two offences: kidnapping
with intent to murder contrary to section 243(1)(a) of the Penal

     20      Code Act and child stealing contrary to Section l59(a) of the Penal
Code Act. The prosecution later abandoned the offence of child
stealing and pursued that of kidnapping with intent to murder
against the two accused persons.

On 7^th January 2009 Nakawooya pleaded guilty to the charge and

     25        on her own plea of guilty she was convicted and sentenced to a term
of imprisonment of 16 years. The appellant pleaded not guilty to the
charge. In the appellant's prosecution Nakawooya was produced by
the prosecution as its key witness against the appellant.

2

5     Grounds of Appeal

The appellant's appeal is based on the following two grounds:

1. The learned Justices of the Court of Appeal erred in law
and fact in failing to re-evaluate the evidence of the
appellant and as a result came to a wrong conclusion.

       10                  2. The learned Justices of the Court of Appeal erred in law
and fact in upholding an illegal, harsh and excessive
sentence.

At the hearing, Mr. Emmanuel Muwonge of Katende, Sempebwa &
Co. Advocates appeared for the appellant while Ms. Alice
Komuhangi Khaukha, Senior Principal State Attorney, appeared for
the respondent. Both counsel filed written submissions.

Counsel's submissions

On Ground one, learned counsel for the appellant argued that the
learned Justices of Appeal wrongly relied on the evidence of
 Rashidah Nakawooya (PW6) which was unreliable. He argued that
PW6's testimony was marred with bad faith that sought to implicate
the appellant in the commission of the offence.

Counsel further argued that the prosecution failed to establish the
appellant's intent to murder the victim in child sacrifice as is
required under section 235(2) of the Penal Code Act. He cited the
case of Mukombe Moses Bulo vs. Uganda, Criminal Appeal No. 12
of 1995, which lays down the principle that in a charge of kidnap
3

        5    with intent to murder it is necessary for the prosecution to establish
that at the time of kidnap there was a contemporaneous intent to
murder the victim. The inference of the appellant's intent was only
drawn from the fact that PW6 was found with the child near his
shrine, but this alone does not mean that the appellant intended to

10  participate in the commission of the offence.

Counsel argued further that the actions of the appellant at the
scene were not consistent with the actions of a person who was
complicit in the commission of the crime. That the appellant
informed the people who had gathered around his shrine to call the

      15        police to arrest the perpetrators of the offence which a person
  involved in committing a crime cannot do.

On ground two, the appellant argued that the sentence of 16 years
imprisonment confirmed by the learned Justices of Appeal was
manifestly harsh considering that the child was safely rescued

     20    without any harm having been done to him. That the court should
have taken into account other mitigating factors such as the fact
that the appellant was a family man, a first offender and had spent
two years on remand. Counsel submitted that the court's failure to
consider the mitigating factors contravened Article 23(8) of the

     2S        Constitution. He relied on the case of Livingstone Kakooza vs.·
  Uganda, SCCA No. 17 of 1993 to support his argument.

On her part, learned counsel for the respondent, on ground one,
argued that while the case of Mukombe Moses Bulo vs. Uganda

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         5      (supra) was relevant to the definition of the offence of kidnap with
intent to murder, contemporaneous intent can be inferred from the
evidence adduced.

Counsel further argued that evidence on record shows that PW6
had previously met with the appellant which meeting led to the

       10   kidnap of the child and subsequent delivery of the child to the
appellant, and that, therefore, the trial court and the Court of
Appeal were right to reject the appellant's defence that his conduct
of calling the police to come to the scene was inconsistent with that
of a person who had committed a crime.

     15 On the issue of reliability of PW6's evidence, counsel argued that
the Court of Appeal was right to rely on it because PW6 had been
convicted on her own plea of guilty and had nothing to gain from
implicating the appellant in the commission of the crime, and that
there was corroboration of PW6’s evidence from the fact that the

     20      appellant was present at his shrine at the time the child was found
with PW6. Counsel cited the case of R v. Baskerville, (1916) 2 KB
658, for the proposition that the evidence of an accomplice must be
confirmed by not only the circumstances of the crime but also the
identity of the prisoner.

     25      On ground two, counsel contended that the trial judge considered
all the mitigating factors including the fact that the appellant was a
first offender and that he was a bread winner for his family. It also
considered the period he had spent on remand. She argued that the

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         5     sentence of 16 years imposed by the trial court was neither
excessive nor illegal so the Court of Appeal could not interfere with
the discretion of the trial judge.

Counsel further argued that Uganda as a state party to the United
Nations Convention on the Rights of a Child is obliged to put in
10 place mechanisms to protect the rights of children. Successfully
trying perpetrators of such crime is one of these mechanisms, she
contended.

Consideration of Ground one of Appeal

In ground one of appeal the appellant complains that the Court of
15 Appeal failed to re-evaluate the evidence of the appellant and so
came to a wrong conclusion that he was guilty of committing the
offence.

As was held in the case of Kifamunte Henry vs. Uganda, SCCA No.
10 of 1997, this court as a second appellate court, has the duty to
decide whether the first appellate court on approaching its task
applied or failed to review the evidence of the case and to consider
the materials before the trial judge.

In its re-evaluation of evidence the Court of Appeal went through
the evidence as narrated by PW6 and stated:

     25             "Nakawooya had visited the appellant at his (appellant)
shrine to consult him about the problem she was having
with her step mother following the death of her mother.

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         5                The appellant demanded that Nakawooya takes to him a
child at his shrine, as part of the process of solving the
problem Nakawooya had taken to him.

Nakawooya then proceeded to look for a child to take to
the appellant as the latter had demanded. She landed

       10                  upon this male child aged 2712 years by the names of Musa
Sserwada alias Muzei. She picked the child who was found
playing with other children and took the child to the
appellant at his shrine.

The appellant on looking at the child found it to be

      15                 Muslim and circumcised and rejected the child. He
demanded of Nakawooya to produce her own child who
was not Muslim and was uncircumcised so that the
appellant could use that one who was uncircumcised to
find a solution to the problem PW6 had taken to him.

     20                  ••• having warned himself the learned trial judge found that
PW6 though an accomplice, was already a convict serving
a heavy sentence of 16 years imprisonment and as such
she had nothing to benefit from helping the prosecution.
She (PW6) had denied under cross examination the

     25                suggestion that she was testifying against the appellant
because she did not want to be imprisoned alone. She
insisted she only wished to tell the truth. The learned trial
judge found that this witness, PW6, had been credible and

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         5                     that her evidence was corroborated by the fact that the
child the subject of the kidnap had been found at the
shrine of the appellant.

... we find that the trial judge properly dealt with all the
evidence that was before him, warned himself of the

      10                   danger of acting on accomplice evidence of PW6, before he
came to the conclusion that PW6 was a credible witness."

We wish to observe, however, that while the learned Justices of
Appeal reproduced the evidence of PW6 as she narrated it to the
trial court, they did not give equal re-evaluation and consideration

      15        of the defence evidence. The defence produced four witnesses apart
from the appellant himself. About the defence evidence the learned
Justices of Appeal only stated:

"The trial judge also dealt in detail with the evidence of
the appellant and his witnesses. Appellant stated that on

     20                  07.08.06 he was attending to his patients in the shrine
when one of his patients Abbas Kasozi, (DW2), told him
(appellant) that there was outside a woman suspected to
have stolen a child. Appellant instructed that the woman
be arrested and she was arrested. Appellant sent one

     25                        Serubula Hamidu (DW3) to bring police from Kalerwe...

The trial judge eventually considered all the evidence that
was before him of both the prosecution witnesses and that
of the appellant and his witnesses. He rejected the version

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         5                     of DW2 that PW6 wanted to sell the child at shs. 100,000=
as unbelievable. The trial judge accepted as credible the
version of PW6 that she had taken the child to the shrine
on the instructions of the appellant.

As far as the defence evidence was concerned we observe that what

      10 the learned Justices of Appeal did was merely to restate what the
learned trial judge's evaluation and conclusion was and agree with
it, instead of themselves carrying out the task of re-evaluating the
evidence afresh.

In their judgment the learned Justices of Appeal properly reminded

      15        themselves of the duty of a first appellate court to re-evaluate
evidence and to draw their own conclusion and inferences bearing
in mind that they had not seen the witnesses testifying. They
stated:

"It is our duty as a first appellate court to subject the

     20                  evidence adduced at trial to a fresh re-appraisal and to
determine whether or not the trial judge reached the right
conclusions, and if not, then to draw our own conclusions
and inferences, bearing in mind, however, that we did not
have opportunity to see the witnesses testify and thus be

     25                able to determine whether their demeanour was truthful
or not. See: Rule 30 of the Judicature (Court of Appeal
Rules) Directions Sl 13-10. See also Bogere Moses vs.

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         5                  Uganda, Criminal Appeal No. 1 of 1997 (SC) and Kifamunte
 Henry vs. Uganda, Criminal Appeal No. 10 of 1997 (SC)."

Judging from above quotation it is clear that the learned Justices of
Appeal fully appreciated what their task was in dealing with the
appeal before them. For purposes of emphasis, however, we wish to

       10    restate what this court has laid down as the principle to be followed
by first appellate courts when handling appeals.

In the case of Bogere Moses vs. Uganda(supra) cited by the
learned Justices of Appeal this court stated:

What causes concern to us about the judgment, however,

      15                   is that it is not apparent that the Court of Appeal
subjected the evidence as a whole to scrutiny that it ought
to have done. And in particular it is not indicated
anywhere in the judgment that the material issues raised
in the appeal received the court's due consideration. While

     20             we would not attempt to prescribe any format in which a
judgment of the Court of Appeal should be written, we
think that where a material issue of objection is raised on
appeal, the appellant is entitled to receive an adjudication
on such issue from the appellate court even if the

     25                 adjudication be handed out in summary form... In our
recent decision in Kifamunte Henry vs. Uganda, we
reiterated that it was the duty of the first appellate court
to re-hear the case on appeal by considering all the

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         5                  materials which were before the trial court and make up
its own mind ... Needless to say that failure to evaluate the
material evidence as a whole constitutes an error in law.

In Dinkerrai Ramkrishan Pandya v. R[1957] E.A. 336 the Court
of Appeal for Eastern African relied on the case of The Glannibanta
10 (2) (1857), 1 P.D. 283 where the Court of Appeal of England stated:

Now we feel, as strong as did the Lords of Privy Council in
the case just referred to, the great weight that is due to
the decision of a judge of first instance whenever, in a
conflict of testimony, the demeanour and manner of the

      15                   witnesses who have been seen and heard by him are, as
they were in the cases referred to, material elements in
the consideration of the truthfulness of their statements.
But the parties to the cause are nevertheless entitled, as
well on question of fact as on question of law, to demand

     20                  the decision of the Court of Appeal, and that court cannot
excuse itself from the task of weighing conflicting
evidence and drawing its own conclusions, though it
should always bear in mind that it has neither seen nor
heard the witnesses, and should make due allowance in

     25                  this respect.

What stands out clearly from the above cited authorities is that the
Court of Appeal as a first appellate court has a duty to rehear the
appeal by subjecting all the evidence on record to a fresh scrutiny

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                                •.                  I                    I

         5      and to draw its own conclusion while making allowance for the fact
that it has not had an opportunity to see and hear the witnesses if
the question of which witness to believe turns on the witnesses'
demeanour.

Reading carefully the judgment of the Court of Appeal in this case

       10 we are of the respectful view that while the Court of Appeal
reminded itself of its legal duty it did not carry it out as the law
requires it to do. The evidence on record shows two conflicting
versions which the trial judge faced and had to resolve. One version
was as told by Rashidah Nakawooya (PW6). Her story was that she

     15 had a problem with her step mother and went to the appellant
whom she knew as a witch doctor to consult him about it, and that
the appellant asked her to bring a child to him to enable him solve
her problem. That when she brought him the child, the appellant
rejected the child because the child was circumcised and so told her

     20      to bring him her (PW6's) own child instead. That it was when she
was with the child near the appellant's shrine that the people
including the appellant started beating her. That she was then
arrested together with the appellant by the police and was later
indicted for the offence in court.

     25        The defence rejected PW6's version. In his testimony the appellant
stated that he had never seen PW6 until the incident at his shrine
that led to his arrest. The thread that runs through the defence
evidence seems to suggest that PW6 had stolen the child and that
she had taken him believing she could sell him to the appellant who

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          5      was known in the area as a witch doctor. Kasozi Abasi (DW2) stated
in his testimony that when he saw PW6 with the child near the
shrine and asked her what she wanted, PW6 told him that she had
heard that witch doctors cut children and that that was why she
had brought him (the child) knowing that she would get money to

        10   release her husband from police custody. That she told him that her
husband had been arrested and was at CPS and that they had
demanded shs. 100,000/= for his release. "The woman never
entered the shrine. I found her standing outside the shrine," DW2
stated in his testimony. That when DW2 told the appellant after the

       15        appellant came out of his shrine what she had told him, the
appellant said that the woman should be arrested and that the
appellant immediately called for the police on his mobile phone and
failing to get the police on phone sent a boda boda rider (PW3) to
call them.

       20        In his judgment the trial judge dismissed the version of stealing the
child by PW6 in order to get money as unbelievable. It is, however,
important to note that the story about PW6's stealing the child in
order to sell him was not only alluded to by the defence witnesses
but by the prosecution witnesses as well.

      25        PW1, Omugeyi Amisi Jingo, a grandfather to the child and a well
known person in the area stated thus in his testimony. "As I am
prominent in the area by the time I went back to the market there
was information that a child had been seen in a shrine with a
woman who was trying to sell the child. I found that my son

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         5      Muhamud Kasujja had already left for the shrine. I rushed to the
shrine where my grand child was allegedly being sold."

Another prosecution witness, PW5 No. 6131 SPC Seruwo Ben who
answered the call to prevent the outbreak of violence and who
arrested PW6 and the appellant stated in his testimony: "I asked

      10 her (PW6) who of the two children was hers. She told me the one
aged 5 to 6 months was hers. The second one was aged about 11/2
years or 2 years. She told me she had stolen the child from his
parents at Mbogo's place. I rang my boss again. I explained what I
had gathered from the woman. My boss instructed me to take them

     15 to our station at Kireka. At that time it was known as V.C.C. U. I
asked the woman where she was taking the child; she told me a
man called Salonga Sentumbwe (the appellant) is one who sent her
for the child. Salonga Sentumbwe was in the car. She told me
Salongo Sentumbwe was going to give her money. Nakawooya told

     20      me that they had agreed on Shs. 1,000,000/= but he had paid her
only 100,000/=. I talked to Salongo at the time. I asked Salongo if
he had sent the woman for a child and he denied having sent the
woman for a child."

The question which comes to mind, therefore, is which of the two

     25        versions one is to believe. In her testimony PW6 never mentioned
that she had picked the child to sell him for money. Yet she told
witnesses both for the prosecution and the defence that she had
stolen the child to sell it for money. In our view, this casts doubt on
her credibility and reliability.

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        5     PW6's testimony to court is not clear either about how many times
she visited the shrine. This is what she stated: "On a date I do not
remember I went to Salongo's place. I had gone to consult on a
personal problem. The problem was that my mother had died and I
went to him because I got problems with my step mother. When I

       10 had started narrating my problem he told me that I should bring
him a child. He did not specify the age of the child. He took me to
his shrine. I got the child as he was walking on the road. He was
playing with other children. I carried the child up to the accused's

shrine."

     15 During her cross examination the story of how she met with the
appellant seems to change. She stated: "This was my first time I
had gone to the shrine. It was my initiative to go and consult at the
shrine. I had made an appointment with him before I took the child.
I used to see him and when I got my problems I went to him and we

     20        negotiated. I consulted him three times before I took the child which
was on the fourth occasion." The question that comes to mind is: at
which meeting did the appellant ask PW6 to bring him a child, was
it at the first meeting, second meeting or third meeting? Her
statement before she was cross examined indicates that as soon as

      25        she started narrating her problem to the appellant the appellant
asked her to bring a child.

The appellant stated in his testimony that he had never seen PW6
until the incident which led to his arrest and prosecution. Kasozi
Abasi (DW2) stated in his testimony that at the time the incident

15

         5      happened PW6 had not entered the appellant's shrine because
Kasozi himself had been there for a long time waiting to go into the
shrine and see the appellant.

Babirye Naabumpenje (DW4) stated in her testimony: "The lady who
had two children is called Nakawooya. I heard people passing

       10 saying they knew her and she is called Nakawooya. When she found
me she asked me whether that was a shrine. I answered her that it
was a shrine. She told me to call the doctor from the shrine. I told
her to enter and see him. She answered me and said that they did
not know each other and asked me to call him for her. I told her to

     15 enter inside and the people inside would show him to her. She
walked up to the door and peeped. She did not enter. She came
back where I was. She told me she was begging me to call him for
her because she did not know him and he also did not know her.
She told me that when she peeped there was a lot of people and she

     20        fears people. I asked her how she was brought up as she fears
people."

This defence evidence was not re-evaluated by the Court of Appeal.
Furthermore, the appellant and Rashidah Nakawooya (PW6) were
jointly indicted for the offence of kidnap with intent to murder.

     25       Therefore, the evidence of PW6 against the appellant was evidence
of an accomplice. Section 132 of the Evidence Act provides:

An accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely

16

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          5                     because it proceeds upon the uncorroborated testimony of
an accomplice.

However, as a matter of practice, accomplice evidence ought to be
corroborated. In Davies vs. Director of Public Prosecutions,
[1954] 2 W.L.R. 343 the House of Lords considered the scope and

       10 legal effects of the rule as to warning the jury with regard to the
evidence of an accomplice as laid down in R v. Baskerville, (supra).
The court held:

There is no doubt that the uncorroborated evidence of an
accomplice is admissible. But it has long been a rule of

       15                  practice at common law for a judge to warn the jury of the
danger of convicting a prisoner on uncorroborated
testimony of an accomplice or accomplices.

The court stated further in that case:

"Evidence in corroboration must be independent

      20              testimony which affects the accused by connecting or
tending to connect him with the crime. In other words it
must be evidence which implicates him, that is which
confirms in some material particular not only the
evidence that the crime has been committed but also that

      25                        the defendant committed it."

Nakawooya (PW6) standing outside the appellant's shrine cannot be
evidence that the appellant had asked her to bring the child to the

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t_

         5      shrine. DW2 testified that PW6 never entered the shrine and so did
DW 4 who testified that PW6 tried unsuccessfully to persuade her to
take her (PW6) into the shrine to see the appellant. There is also
evidence from both the prosecution and defence that PW6 had
brought the child intending to sell him to the appellant. With due

       10   respect to the learned Justices of Appeal, we are, therefore, of the
view that they erred to hold that the evidence of PW6 is
corroborated by the fact that she was found with the child near the
appellant's shrine.

We think that the common law rule requiring a court to warn itself

      15        of the danger of convicting an accused on the basis of
uncorroborated evidence of an accomplice applies only when the
evidence of the accomplice is found trustworthy. Where, however, it
is found to have discrepancies and therefore discreditable as in this
case the rule on corroboration of an accomplice's testimony does

20   not arise.

Both the prosecution and defence witnesses refer to the appellant
as a witch doctor. However, the standard of proof in criminal cases
which is proof beyond reasonable doubt does not change even when
an accused person is a witch doctor. We note that the learned trial

     25       judge underlined the words "witch doctor" in his judgment and we
think this was prejudicial to the appellant. The fear of witch doctors
in this country notwithstanding, it is also common knowledge that
shrines exist in Uganda and people go there to consult witch
doctors on their personal problems. DW2 and DW4 had gone to

18