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 18th December) 2014.] 
JUDGMENT OF THE COURT 
This is a second appeal from the decision of the High Court delivered 
by Owiny-Dollo J on 25th 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 
U
GANDA•.•..••..••.•.••................••..•.••.•..•....•. ] RESPONDENT 
.................................................. 

[Appeal from the decision of the Court of Appeal at Kampala (Kasule, 
Mwangusya & Engonda Ntende, JJA) dated 18th 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 
25th 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 

20 

 	. 
JUSTICE DR. ESTHER KISAAKYE 
JUSTICE OF THE SUPREME COURT 
6