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	5 	THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA
			 AT KAMPALA 
CRIMINAL APPEAL NO. 63 OF 2015 
(Coram: Katureebe, C.J., Tumwesigye, Kisaakye, Mwangusya, Opio Aweri; 
10 JJ.S.C.) 
Between 
MPAGI GODFREY  	APPELLAN
And 
UGANDA ………………………………………………………………………..RESPONDENT	
15 
(Appeal against the judgment of the Court of Appeal, Criminal Appeal No. 91 
of 2012 before Hon. Justices Kasule, Mwondha, and Kakuru JJA dated 7th 
October 2015) 
Judgment of the Court 
	20 	Mpagi Godfrey, the appellant, was tried by the High Court and convicted of 
the offence of murder contrary to sections 188 and 189 of the Penal Code 
Act and sentenced to thirty four years imprisonment. His appeal to the 
Court of Appeal against both conviction and sentence was dismissed, hence 
this appeal. 
	25 	The facts of the case as found by the trial Court and the Court of Appeal are 
as follows:- 
The deceased, Andrew Muhumuza, was living with his mother, Marjorie 
Kumunda (PW1), at Nsambya Railway Quarters. On the night of 17th May 
2010 the deceased left home to go and meet someone who owed him money 
30 which he had promised to pay. He did not return home. 
On 18th May 2010 at about 1:00 a.m. Kumunda PW1, was called by her 
niece who informed her that the deceased had been involved in an accident. 
She traced the deceased in Kibuli where she found him lying by the 
roadside. She took him to Mulago Hospital where he died on arrival. A 
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	35 	post-mortem examination performed on the body of the deceased revealed 
that externally the body had bruises and lacerations on lower limbs, 
laceration/bruises right occiput and sharp entry deep wound (about 1 - 2 
cm)both legs anterior tibial aspect. Internally, there was fracture on left 
tibial fibula, and right subdural haemotoma. He died from the above 
40 injuries. 
According to Mary Kiwanuka (PW2), on 18.05.2010 she was sleeping when 
she was attracted by noise from outside her house. She went out to check 
what was happening and on reaching outside she found the deceased being 
assaulted by the appellant and others. The deceased was appealing to the 
	45 	appellant to take him to the Police if he had committed any crime. The 
witness also told the appellant not to take the law in his own hands to no 
avail. It was as a result of the injuries sustained in the assault that the 
deceased died. 
In his defence the appellant denied having participated in the assault of the 
	50 	deceased. He stated that he had left for Fort Portal on 18.05.2010 at 8:00 
p.m. to deliver Newspapers for New Vision so he could not have participated 
in the assault of the deceased. He called his wife Ahumuza Catherine (DW2) 
who supported his story that he was not at home as alleged by the 
prosecution but had gone to Fort Portal. 
	55 	The High Court, after evaluating the evidence including the appellant's alibi 
found the appellant guilty of murder and sentenced him to thirty four years 
imprisonment. On appeal to the Court of Appeal the Court upheld both the 
conviction and sentence passed by the trial Court. The Appellant contests 
the concurrent findings of the two Courts below. 
60 In his memorandum of appeal the appellant raised the following grounds:- 
1. That the learned Justices of appeal erred in law when they 
misapplied the law on alibi thereby disregarding the appellant's 
defence which led them to uphold his conviction erroneously. 
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2. That the learned Justices of Appeal erred in Law when they upheld 
	65 	the appellant's conviction which was erroneously arrived at by the 
trial Court when it conducted his trial on the 28th March 2012 in the 
absence of assessors thereby infringing his right to a fair hearing and 
occasioning a miscarriage of justice. 
3. The Learned Justices of Appeal erred In law when they upheld the 
	70 	appellant's conviction which was erroneously arrived at by the trial 
Court when it ordered prosecution and defence to file written final 
submissions which procedure is a violation of the applicant's rights to 
attend his trial and fair hearing thereby occasioning a miscarriage of 
justice. 
	75 	The appellant prayed Court to quash the conviction and set aside the 
sentence. 
The appellant was represented by Mr. Sebugwawo Andrew, Counsel on State 
Brief, while the respondent was represented by Mr. Brian Kalinaki, Principal 
State Attorney, Directorate of Public Prosecutions. 
	80 	On ground one, Mr. Sebugwawo submitted that according to the indictment 
the murder took place on 18th May 2010. This was supported by PW2 whom 
he describes as a single indentifying witness who stated that the incident 
took place between 11:00 p.m. and 12:00 midnight. He referred Court to 
the defence of the appellant to the effect that on 18:05 2010 he had travelled 
	85 	to Fort Portal at 8:00 p.m. and did not return to Kampala till the 
21.05.2010 at 6:30 p.m. The appellant's alibi was supported by his wife 
who testified to his journey to Fort Portal on 18.05.2010 at 8:00 p.m. but 
according to her, did not return home until after six months. 
On the other hand Counsel for the Respondent submitted that the Court of 
90 	Appeal after a re-evaluation of the evidence regarding the appellant's defence 
of alibi, rightly rejected it. The High Court finding had been that Kiwanuka 
Mary (P.W.2) had properly identified the appellant as one of the assailants. 
She had known him for about four years and there was light from the 
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nearby buildings that enabled her identify him. She approached him and 
95 told him not to take the law in his own hands but the appellant persisted in 
assaulting the deceased. 
The Court of Appea1's own finding on the defence of alibi was a follows:- 
"The prosecution evidence is that the deceased was killed around 1 :00 
a.m. on 18th May 2010 by the appellant. The appellant in his own 
100 words did not leave Kampala until 8:00 p.m. that day 18th May 2010. 
So he must have left 19 hours after the incident, since it took place at 
1:00 a.m. on the morning of 18th May 2010 and he left Kampala at 8:00 
p.m. on the evening of that day. His alibi therefore collapses." 
We agree with the above finding of the Court on Appeal that the deceased 
	105 	was killed on the morning of 18/05/2010. The deceased's mother stated 
that she picked the deceased from the road where he had been dumped and 
took him to Mulago Hospital where he died on arrival. The post mortem 
report which was adduced in evidence by the prosecution indicates that the 
body arrived at the City Mortuary on 18.05.2010 at 9:50 a.m. where it was 
110 examined on the same day at 10:00 a.m. 
This evidence shows clearly that by the time the appellant left for Fort Portal 
at 8:00 p.m. the deceased had already been killed. This still leaves the 
question of the participation of the appellant in the killing of the deceased to 
be determined. 
	115 	The Court of Appeal in the analysis of the evidence relating to the presence 
of the appellant at the scene and his participation in the assault of the 
deceased, cited with approval, the following passage from the judgment of 
the trial judge- 
"In the present case, given that PW2 was a single indentifying witness 
120 this Court is cognisant of the need for and duly warns itself of the need 
for special caution before relying on her evidence for a conviction. Be 
that as it may, I find that the conditions of identification were 
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favourable for correct identification. Further this Court found the 
evidence of PW2 to be cogent and credible, and indeed observed the 
	125 	said witness to have had a truthful demeanour. In contrast, the 
defence evidence presented numerous inconsistencies and 
contradictions. I shall cite but a few. First the accused gave sworn 
evidence in which he testified to having returned from Fort Portal on 
21st May 2010 at 6:30 p.m. and was thereupon informed by a one Peter 
130 of the events that had allegedly unfolded at his home in his absence. 
However, DW2 an unemployed housewife who would quite reasonably 
have been expected to be at home at that time of the day, testified 
that the accused left his home on 18th May 2010 and only returned to 
Kampala six months later." 
	135 	We wish to reiterate the guidelines given by the Supreme Court of Uganda in 
the case of Moses Bogere and (Supreme Court Criminal Appeal No. 1 of 
1997) when considering evidence of identification by a single witness or a 
multiple of witnesses: 
"This Court has in many decided cases given guidelines on the 
	140 	approach to be taken in dealing with evidence of identification by 
eyewitnesses in criminal cases. The starting point is that a court 
ought to satisfy itself from the evidence whether the conditions under 
which identification is claimed to have been made were or were not 
difficult, and to warn itself of the possibility of mistaken identity. The 
	145 	Court should then proceed to evaluate the evidence cautiously so that 
it does not convict or uphold a conviction, unless it is satisfied that 
mistaken identity is ruled out. In so doing the Court must consider 
the evidence as a whole namely the evidence if any, of factors 
favouring correct identification together with those rendering it 
	150 	difficult. It is trite law that no piece of evidence should be weighed 
except in relation to the rest of the evidence. See Suleman Katushabe 
Vs Uganda SC Cr Appeal No 7 of 1991 (unreported)" 
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The conditions which Court may consider when determining as to whether 
or not the prevailing conditions favoured an identification free of error were 
155 discussed in the case of Abdulla Nabudere and another Vs Uganda (Court 
of Appeal Criminal Appeal No.9 of 1978) reported in (1979) HCB 77 and 
are as follows: 
"Where the case against the accused depends wholly or substantially on 
the correctness of one or more identifications of the accused which the 
	160 	defence disputes, the judge should warn himself and the assessors of 
the special need for caution before convicting the accused in reliance 
on the correctness of the identification or identifications. The reason 
for the special caution is that there is a possibility that a mistaken 
witness can be a convincing one, and a number of such witnesses can 
	165 all be mistaken. The Judge should then examine closely the 
circumstances in which the identification came to be made particularly 
the length of time, the distance, the light, the familiarity of the 
witness with accused. All these factors go to the quality of the 
identification evidence. If the quality is good the danger of mistaken 
170 identity is reduced but the poorer the quality the greater the danger. 
When the quality is good, as for example, when the identification is 
made after a long time of observation or in satisfactory conditions by a 
person who knew the accused before a Court can safely convict even 
though there is no other evidence to support the identification 
175 provided the Court warns itself of the special need for caution." 
The trial Judge believed the evidence of Mary Kiwanuka (PW2) the sole 
witness produced by the prosecution to relate as to what happened when 
the deceased was killed. The Court of Appeal re-evaluated the same 
evidence to come to the same finding that the conditions under which PW2 
	180 	claimed to have identified the appellant favoured a correct identification 
being made. The basis for the concurrent finding was that the witness was 
aided by light from the nearby house to observe the appellant whom she had 
known for over four years. She observed him at a distance of only five 
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metres and approached him to advise him not to take the law in his own 
	185 	hands but to take the deceased to Police if he was a thief. The incident 
lasted about thirty minutes further ruling out the possibility of mistaken 
identity especially when the witness and the appellant knew each other very 
well. While acknowledging that he was well known to PW2 the appellant 
hastened to add that there was a grudge between them to the extent that 
	190 	she never used to greet him whenever they met in the village. According to 
him the grudge had arisen because PW2 has thought that the appellant had 
been bribed not to press for an access road for another neighbour. The 
appellant's wife who testified as DW2 stated that by the time she married 
the appellant in the year 2008 the relationship between PW2 and the 
195 appellant's family was not good. 
The trial judge considered the allegation of this grudge. She did not believe 
that the evidence of PW2 regarding the appellant's participation in the 
assault of the deceased was actuated by any grudge. She was of the view 
that there was such limited interaction between PW2 and the appellant and 
	200 	his family that the evidence of PW2 could not have been motivated by the 
bad relationship alleged by the appellant and his wife. She believed that 
PW2 had witnessed the assault in which the appellant participated. 
The Court of Appeal did not re-evaluate this piece of evidence. In the case of 
Kifamunte Henry Vs Uganda (Supreme Court Criminal Appeal No 10 of 
205 	1997) it was reiterated that it was the duty of the first appellate Court to re- 
hear the case on appeal by re considering all the materials which were 
before the trial Court and make up its own mind. One of the materials 
before the trial Court was the allegation of the grudge and the failure by the 
Court to consider it warrants intervention of this Court playing IS role as a 
210 second appellate Court. 
The allegation of the grudge was brought up by the appellant during his 
defence. He is the only one who made an attempt to explain the existence 
and the genesis of the grudge. The only other witness that would have 
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testified to the existence of the grudge was PW2 but throughout her cross 
215 examination the matter of the grudge was not put to her. 
In the case of James Sawoabiri and Fred Musisi Vs Uganda (Supreme 
Court Criminal Appeal No 5 of 1990 (unreported) it was held that an 
omission or neglect to challenge the evidence in Chief on a material or 
essential point by cross examination would lead to the inference that the 
220 	evidence is accepted subject to its being assailed as being inherently 
incredible or palpably untrue. The issue of the grudge was such an 
essential element in the defence of the appellant that the witness should 
have been confronted with it. The only inference to be drawn from the 
failure by the defence to put such a material point to the witness is that the 
225 grudge did not exist and was only brought up as an afterthought. 
The other aspect of the case considered by the trial Court that was not re- 
evaluated by the Court of Appeal was that although PW2 testified that the 
appellant was with others during the assault of the deceased, only the 
appellant faced the trial resulting in his conviction. The trial judge relied on 
230 	the case of Ismail Kisegerwa & Another Vs Uganda (Court of Appeal 
Criminal Appeal No 6 of 1978 where the doctrine of common intention was 
described as follows:- 
"In order to make a doctrine of Common Intention applicable it 
must be shown that the accused had shared with the actual 
235 	perpetrator of the crime a common intention to pursue a specific 
unlawful purpose which led to the commission of the offence. If it 
can be shown that the accused persons shared with one another a 
common intention to pursue a specific unlawful purpose, and in 
the prosecution that unlawful purpose an offence was committed, 
240 	the doctrine of common intention would apply irrespective of 
whether the offence committed was murder or manslaughter. It is 
now settled that an unlawful common intention does not imply a 
pre arranged plan. Common Intention may be inferred from the 
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presence of the accused persons, their actions and the omission of 
	245 	any of them to disassociate himself from the assault." 
In the instant case the appellant was found to have actively participated in 
the assault of the deceased. PW2 who was found to be a credible witness 
tried to stop him from assaulting the deceased to no avail. Although he was 
not alone in the killing of the deceased, once his participation in the assault 
	250 	was established, he took full responsibility for his role as a participant in the 
assault of the deceased for which he was rightly convicted. 
In addition to the direct evidence of identification by PW2, there are other 
factors to consider in disproving the appellant's alibi. These are that the 
appellant lied about his whereabouts on the morning the deceased was 
	255 	killed in addition to lying to Court that from Fort Portal he had returned to 
Kampala on 21.05.2010 and yet his wife testified that when he left for Fort 
Portal on 18.05.2010 he did not return home for the next six months. The 
inference to be drawn from the lie about his return to Kampala is that he 
was in hiding. In the case of Moses Bogere and Anor Vs Uganda (Supra) 
	260 	the Supreme Court cited the case of Moses Kasana Vs Uganda Cr. App. No 
12 of 1981 (1992-93) HCB 47 where the Supreme Court observed as 
follows:- 
"where the conditions favouring correct identification are difficult 
there is need to look for other evidence, whether direct or 
	265 	circumstantial, which goes to support the correctness of identification 
and to make the trial Court sure that there is no mistaken 
identification. Other evidence may consist of a prior threat to the 
deceased, naming the assailant to those who answered the alarm, and 
of a fabricated alibi."(Underlining provided). 
270 
We, like the two Courts below, believe that the quality of the evidence of 
identification was good and the Court, after cautioning itself on the danger 
of basing a conviction on a single identifying witness could safely rely on it. 
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In addition the evidence was corroborated by the false alibi of the appellant. 
275 Ground I of the appeal, therefore, fails. 
On Ground two Counsel for the appellant submitted that the Court record 
does not indicate that any of the two assessors attended the trial on 28th 
March 2012 which renders the entire proceedings a nullity. He submitted 
further that it occasioned a miscarriage of justice. 
	280 	In reply Counsel for the Respondent submitted that the issue of absence of 
the assessors was not raised in the Court of Appeal and should therefore not 
be raised in this Court. He submitted further that on the date the assessors 
were allegedly absent Counsel for the appellant was in Court and never 
raised the issue with the trial Judge and that it did not occasion a 
	285 	miscarriage of justice. In this regard he cited section 139 of the Trial on 
Indictments Act which provides a follows:- 
"S. 139 Reversibility or alteration of finding, sentence or order by 
reason of error etc 
(1) Subject to the provision of any written law, no finding, sentence or 
	290 	order passed by the High Court shall be reversed or altered on 
appeal on account of any error, omission, irregularity or 
misdirection in the summons, warrant, indictment, order, judgment 
or other proceedings before or during the trial unless the error, 
omission, irregularity or misdirection has in fact occasioned a 
	295 	miscarriage of justice. 
(2) In determining whether any error, omission, irregularity or 
misdirection has occasioned a failure of justice, the Court shall 
have regard to the question whether the objection could and should 
have been raised at an earlier stage in the proceedings. " 
300 	From the outset we wish to point out that absence of assessors from a trial 
is not a mere irregularity. Under section 3 of the Trial on Indictments Act 
all trials before the High Court shall be with the aid of assessors and Section 
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69 of the same Act provides that in absence of an assessor the trial proceeds 
with the aid of other assessors. If more than one of the assessors are 
305 prevented from attending or absent themselves, the proceedings shall be 
stayed, and a new trial shall be held with the aid of different assessors. See: 
Abdu Komakech v. Uganda [1992 - 93] HCB 21. 
We have to establish the fact of the attendance or non attendance of the 
assessors. 
	310 	We have perused the record of proceedings and it shows that on 28.03.2012 
when the assessors were allegedly absent the prosecution closed its case 
and the appellant was required to give his defence which he did. As already 
discussed in this judgment his defence was an alibi which was supported by 
his wife who testified as DW2 on the same day. 
	315 	The summing up for the assessors was conducted on 30.03.2012 and they 
rendered their joint opinion on 03.04.2012. In their joint opinion the 
assessors advised Court to acquit the appellant on the ground that the 
evidence of PW2 on the participation of the appellant in the commission of 
the offence lost credibility by the defence of the appellant and DW2. The 
	320 	assessors could not have relied on the evidence of the appellant and his wife 
if they had not been in Court and heard their testimony on the alibi. This 
may explain why although the appellant was represented by different 
Counsel at the High Court and Court of Appeal none of them raised the 
issue of the absence of the assessors. Accordingly, it is our view that the 
	325 	above issue was raised in this Court as an afterthought and our finding is 
that the omission by the trial judge to record their presence was due to 
inadvertence rather than their absence from the trial. We, therefore, find no 
merit on this ground of appeal which is also dismissed. 
On ground three of the appeal the background was that at the close of the 
330 case for the defence the trial Court made orders for filing written 
submissions by the prosecution the following day at 9:30 a.m. and reply by 
the defence at 5:30 p.m. Counsel for the appellant submitted that the 
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written submissions were made in absence of the appellant which renders 
the trial a nullity, He cited Article 23 (5) of the Constitution which requires 
	335 	that a trial of any person takes place in his presence. He also cited the case 
of AKHUYA Vs REPUBLIC (E.A. L.R, (2002) 2 EA 323 ((CAK) where the 
Court of Appeal of Kenya was faced with a case where like in the instant 
case a trial Magistrate had ordered filing of written submissions in the Court 
Registry. It found that the trial was improper leading to the quashing of the 
340 appellant's conviction. 
In response Counsel for the Respondent contended that the filing of written 
submissions did not contravene the appellant's right to a fair hearing. 
According to Counsel the right to give a final address to Court can be oral or 
written and in this case written submissions were filed on behalf of the 
345 appellant. 
The practice of filing written submissions as opposed to oral submissions is 
becoming quite common in our Courts. The practice expedites the trial. It 
is not regulated but it has to be properly managed. In the instant case the 
prosecution and defence filed their submissions within one day. It is 
	350 	advisable for court to take suggestions from Counsel as to how much time is 
required to prepare their submissions. It is also advisable to spare time for 
presentation of the written submissions in open Court. In this way Counsel 
may, in addition to the written submissions wish to make a few remarks by 
way of emphasis and then adopt the written submissions in open Court. 
	355 	The question raised by the ground of appeal is whether the failure to take 
submissions in the presence of the appellant renders the whole trial a 
nullity as prayed by the appellant or occasioned a miscarriage of Justice. 
Under section 139 of the Trial on Indictments Act already cited in this 
judgment a finding, sentence or order can only be reversed or altered when 
360 	it has in fact occasioned a miscarriage of Justice. In determining whether 
any error, omission, irregularity or misdirection has occasioned a failure of 
justice, the Court shall have regard to the question whether the objection 
could and should have been raised at the earlier stage in the proceedings. 
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In our view the omission to take final submissions in open Court was a mere 
365 	irregularity and did not in fact occasion a miscarriage of justice. The order 
to file written submissions was made in open Court. The written 
submissions were filed but more importantly the trial Court evaluated the 
evidence adduced by the prosecution and the defence before arriving at the 
verdict that the appellant committed the offence. The same evidence was re- 

370 	evaluated by the Court of Appeal which came to the same conclusion. So the 
main emphasis is, and must be the evaluation of the evidence on record 
which was done. On this consideration we find that the appellant was 
properly convicted. We find no merit in this ground of appeal which is also 
dismissed. 
375 In the result the appellants appeal against his conviction IS dismissed. 
There was no appeal against sentence which is confirmed. 
	Dated this 	15 	day of 	~ September	2017 
	Signed 	. 
380 	Katureebe

385 
	
390 
Kisaakye 
Justice of the Supreme Court 
Mwangusya
Justice f the Supreme Court 
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395 
Opio-Aweri 
Justice of the Supreme Court 
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