Rwalinda John v Uganda [2017] UGSC 38 (6 October 2017)

Background

The brief facts are that the appellant was, together with another, indicted on a
count of murder CIS 188 and 189 of the Penal Code Act. It was alleged that
on the 30^th June 2010 at Kakama Village Kalisizo, Rakai District, the appellant
and one Muhwezi Baker murdered Mukiibi Marvin.

In the alternative the appellant and Muhwezi Baker were indicted with
kidnapping with intent to murder C/S 243(1) of the Penal Code Act. It was
alleged, that on the same day and place as above stated, the two kidnapped
Marvin Mukiibi and took him away against his will with intent that he may be
murdered or disposed of as to be put in danger of being murdered.

The appellant denied both counts. The trial proceeded and he was found guilty
and convicted of kidnapping with intent to murder, and sentenced to life
imprisonment.

He was dissatisfied with the trial Judge's decision and appealed to the Court of
Appeal.

The Court of Appeal upheld the conviction and sentence hence this appeal.

Representation

Mr. Emmanuel Bwogi represented the appellant on state brief.

Mrs. Alice Komuhangi Khauka-Senior Principal State Attorney was for the
respondent.

Submissions

On the first ground, counsel for the appellant submitted that under section
5(1) (a) of the Judicature Act an appeal shall lie to the Supreme Court where a
conviction and sentence have been confirmed by the Court of Appeal on a
matter of law or mixed law and fact.

2

He further submitted that it is the duty of a second appellate court to decide
whether the first appellate court on approaching its task applied or failed to
review the evidence of the case and to reconsider the materials before the trial
judge. He relied on the case of Kifamunte Henry Vs Uganda SCCA No.10 of
1997.

He contended that the Justices of the Court of Appeal wrongly evaluated the
evidence when it came to the conclusion that there was sufficient corroboration
of the evidence of PW6 who was an accomplice and this led to the confirmation
of the conviction of the appellant.

He argued that whereas under section 132 of the Evidence Act, Cap 6 Laws of
Uganda 2000 an accomplice is a competent witness against an accused person
and conviction is not illegal on the ground that it was based on uncorroborated
testimony, as a matter of judicial practice, it is prudent that other independent
evidence is obtained to corroborate the evidence of an accomplice. He relied on
the case of Mushikowa Watete alias Peter Wakhoka & 3 others Vs Uganda
Criminal Appeal No.10 of 2000 [1998-2000] HCB 7, which held that it is
trite law that in a criminal trial, it is unsafe to rely on accomplice
evidence unless it is corroborated. An appellate court will quash a

conviction based on accomplice evidence if it is uncorroborated.

He submitted that he differed from the reasoning of the Court of Appeal to the
effect that the appellant was the last person seen with the victim alive. The
victim’s body was found 4 (four) days after the deceased disappeared. The
medical evidence was that the body was mutilated, the neck had been cut open
and the lower jaw and the neck were missing. He contended that there was no
evidence by the prosecution showing participation by the appellant. The
evidence of PW6 was tainted with inconsistencies.

He contended further that an accused person must be convicted on the
strength of the prosecution evidence and not on the weakness of the defence
3

case. He submitted that the evidence could not sustain a conviction of a kidnap
charge with intent to murder.

On the other hand, Counsel for the respondent supported the Court of Appeal
decision and submitted that the Court of Appeal discharged its duty. She
submitted that the Supreme Court defined who an accomplice is in the case of
Nasolo Vs Uganda [2003]1 EA 181(SCU). The Court said: "in a criminal trial a
witness is said to be an accomplice if inter alia he participated as a principal or
an accessory in the commission of the offence the subject of the trial. One of
the clearest cases of an accomplice is where the witness has confessed to the
participation in the offence or has been convicted of the offence either on his
own plea of guilty or on the court's finding him guilty after trial. However, even
in the absence of such confession or conviction a court may find on the
strength of the evidence before it at the trial that a witness participated in the
offence in one degree or another. Clearly, where a witness conspired to commit
or incited the commission of the offence under trial, he would be regarded as
an accomplice".

She also cited the case R. vs Baskerville (1916) 2 KB 658 in which it was
held that: corroboration means independent evidence. The evidence does
not have to be a kind which proves the offence against the accused. It is
sufficient if it connects the accused to the crime. Corroboration does not
mean that every detail has to be corroborated .... what is required is that
there must be some additional evidence rendering it probable that the
story of an accomplice is true and it is reasonably safe to act upon it.

She argued that the corroboration the Justices of the Court of Appeal found
was that of PW2, testified that she saw PW6 take the deceased to the banana
plantation and when she followed, PW6 threw stones at her. Corroboration
was also found by the Court of Appeal in the evidence of PW3 a police officer
who had recorded the statement of PW2 to the effect that PW6 had taken the

4

victim and did not return home with him. The Justices of the Court of Appeal
found corroboration also in the way the victim was murdered, mutilated body
as per the medical report, the neck had been cut open, the lower jaw and
tongue were missing and found that the killing was characteristic of ritual
killing by witch doctors.

Counsel further submitted that there was circumstantial evidence which
corroborated PW6 evidence who was an accomplice The circumstantial
evidence of PW6 testimony that the appellant promised him 8m/= which was
going to be given to him when he returns from Kampala. And the evidence that
when PW6 handed over the child to the appellant, the appellant told him to go
back to where he was digging in the banana plantation. The appellant's
testimony that he was arrested from Kampala corroborated PW6's testimony.
She said that considering all the above, the decision of the Court of Appeal
should be upheld and the appeal be dismissed.

On the 2^nd ground on excessiveness of sentence, Counsel for the appellant
submitted that the sentence of life imprisonment for a 67 year old and
moreover a first offender was harsh and excessive in the circumstances. The

appellant was remorseful and prayed for leniency.

He reiterated the law to the effect that an appellate court will only interfere With
the sentence imposed by the trial court if it's evident that it acted on a wrong
principle or overlooked some material factor or if the sentence is manifestly
excessive in view of the circumstances of the case. He relied on the case of

Livingstone Kakooza Vs Uganda Supreme Court Criminal Appeal No.17 of
1993 (Unreported). He submitted that the trial judge overlooked material
factors during mitigation of sentence like advanced age of the appellant at 67
years and the fact that he was a first time offender, had a family to care for and
had reformed as he had always been remorseful. Failure to consider these
factors amounted to an illegality of sentence imposed. He prayed that the

5

conviction be quashed and sentence be set aside. In the alternative, he prayed
that the sentence be reduced.

On the second ground, counsel for the respondent argued that the sentence of
life imprisonment is neither excessive nor illegal considering the circumstances
of the case. Counsel submitted that the learned Justices of the Court of Appeal
considered all the mitigating factors as raised by the appellant and aggravating
factors as raised by the prosecution. The seriousness of the offence was
considered in view of the fact that the victim was a toddler, was kidnapped and
ruthlessly murdered. Some body parts went missing. She further submitted
that this was a case which fell in the category of the rarest of the rare which
would call for a death penalty against the culprit. Citing the Suzan Kigula Vs
Attorney General Supreme Court No. 1 of 2004, life imprisonment was
lenient given the circumstances of the case. It was not only going to keep the
appellant out of the public but would send a message to other ruthless people
who have no respect for human life especially the vulnerable children.

She submitted that the second ground lacked merit and so it must fail and
appeal dismissed

Consideration of the appeal

This is a second appeal and the duty of a second appellate court was long
settled in various cases of this court. In the cases of Kifamunte Henry Vs
Uganda Supreme Court Criminal Appeal No.10 of 1997. It was held among
others, that a 2^nd appellate Court can interfere with the conclusions of a first
Appellate Court if it appears that in its consideration of the appeal as a first
appellate Court it applied or failed to apply the principles set out in such
decisions as Pandya v. R. [1957] 336. The first appellate Court failed in its
duty to review the evidence before the trial Court and make its own
conclusions.

6

There were two grounds of appeal as reproduced in this judgment.

The first ground, was that the learned Justices of the Court of Appeal upheld
the conviction after failing to re-evaluate the appellant's evidence.

We had the opportunity to carefully peruse the proceedings and judgment of
the Court of Appeal. It was clear that the Court of Appeal as the first appellate
court was alive to its duty of re-evaluating all the evidence adduced before the
trial Court and subjected it to a fresh scrutiny and made its own inferences on
all issues of law and fact as a requirement under Rule 30(1) of the Rules of this
Court. Reference was made to the case of Kifamunte Henry Vs Uganda
(supra).

The learned Justices observed that it was only participation of the appellant
which was in contention because the only evidence implicating the appellant
was that of PW6 who was a co-accused (accomplice). PW6 had been convicted
on his own plea of guilty and sentenced to life imprisonment.

We accept counsel for the respondent's submissions that the learned Justices

of Appeal went into great detail re-evaluating the evidence before the trial
court. The law in respect of accomplice evidence was considered and the
authority of R vs Baskerville (supra) was relied on by the Court. In that case
the prisoner had been charged with committing acts of gross indecency with
two boys contrary to section 11 of the Criminal Law Amendment Act 1885. The
only direct evidence of the commission of the acts charged was that of the boys
themselves who were accomplices from their own statement in the offence. The
letter was produced addressed to one of the boys and contained ten shillings
Treasury note. The letter was inviting the boys Harry and Charlie to the
appellant's flat at 8 not 7:30 and he (appellant) signed it. The prisoner
(appellant) in this case gave evidence and admitted that the boys who were of a
humble position in life went to his flat by invitation and he accounted for it.
The Jury found the prisoner (appellant) guilty after the judge warned the jury

7

that they ought not to convict the prisoner upon the evidence of the boys
unless it was in their opinion corroborated in some material particular affecting
the accused, but told them that the above mentioned letter afforded evidence
which they would be entitled to find was sufficient corroboration. At page 658
of the above case it was stated: ... where on the trial of an accused person
evidence is given against him by an accomplice, the corroboration which
the common law requires is corroboration in some material particular
tending to show that the accused committed the crime charged. It is not
enough that the corroboration shows the witness to have told the truth in
matters unconnected with the guilt of the accused.

The Court of Appeal citing with approval the case of Baskerville (supra)
reproduced the following: "the evidence of an accomplice must be confirmed
not only to the circumstances of the crime but also to the identity of the
prisoner... (it) does not mean that there must be confirmation of all
circumstances of the crime, as we have already stated, that is not necessary. It

is sufficient if there is confirmation as to the material circumstances of the
crime and the identity of the accused in relation to the crime. The
corroboration need not be direct evidence that the accused committed the
crime, it is sufficient if it is merely circumstantial evidence of his connection to
the crime."

The Supreme Court of India in Rameshwar v. V.A. (1952) sc. 54 held that
there must be additional evidence rendering it probable that the story of the
accomplice is true and that it is reasonably safe to act upon it. The case of
Nasolo Vs Uganda (supra) held among others that:

" ... a Judge must warn himself and the assessors of the danger of acting on an
accomplice's evidence without corroboration. However, failure to warn himself
of the necessity for corroboration is not fatal to an accused's conviction if the
Judge made a finding that the evidence was corroborated."

8

The learned Justices of the Court of Appeal put it categorically that, they
looked at the evidence as a whole and found that PW6's evidence was generally
corroborated. PW2's evidence was to the effect that she saw PW6 Muhwezi
Baker take the deceased child into a banana plantation and when she followed
him, PW6 threw stones at her and told her to go back. It is clear from the
evidence of PW2 she was testifying against PW6 not the appellant.

This could not be corroboration of PW6s evidence in light of the Baskerville

case.

It is our view that what is required to be corroborated was in respect of the
appellant's participation because PW6 pleaded guilty and that means it was
clear that he kidnapped the victim and there was no question of identity as far
as PW6 was concerned. So in that respect, the Court of Appeal was in error.

However the evidence of PW6 to the effect that the appellant had offered
Shs.8m (eight million shillings) because he wanted to take the child to sacrifice

it to his gods and the appellant's evidence that he was a witchdoctor and a
farmer of Kyenkera Kakora Rakai as per his unsworn statement as defence.
The fact that the deceased's body had signs of ritual killings. Also the
appellant still in his evidence testified that by the time he was arrested he was$
in Kampala. PW6 had told Court that the appellant had promised to bring the
8m/ = to him when he returned from Kampala. That was after PW6 had
kidnapped the deceased and handed him over to the appellant

The appellant told court that on 5^th July 2010 someone rang him that he was
wanted when he was already in Kampala. He directed them to where he was in
Makindye (Kampala). They got him and told him that he had committed an
offence. He said he was arrested handcuffed and taken to Kibuye Police station
among others. He made a statement in which he admitted knowing PW6 but
that by that time he had sent him (PW6) away from his home about one and a
half years ago because of his bad behavior. He then led the police to his home

9

which was searched but nothing was found. From the above evidence it was
clear that the appellant left for Kampala after the commission of the offence
which was on 30^th June 2010. There was sufficient corroboration by the
appellant's own statement of PW6's testimony therefore in the material
particular. This is in line with the R v. Baskerville case which held among
others, that it is sufficient if there's confirmation as to the material
circumstance of the crime and the identity of the accused in relation to the
crime. The corroboration need not be direct evidence that the accused
committed the crime, it is sufficient if it is merely circumstantial evidence of his
connection to the crime. Also in the case of Nasolo v. Uganda (supra) citing
the case of 0100 v. R [1960] EA 66 corroboration, was defined to mean an
independent evidence direct or circumstantial which confirms in some material
particular not only that the offence has been committed but also that the
defendant committed it. That definition was approved by this Court in the case
of Bikuma v. Uganda Cr. Appeal No. 24 of 1989 (UR). We therefore, find that
there was sufficient corroboration to sustain a conviction.

On the second ground, the complaint of the appellant was that the sentence
was harsh and excessive yet the learned Justices of the Court of Appeal upheld
it.

It is trite law that under section 5(3) of the Judicature Act that " an appeal
against sentence other than one fixed by law, the accused person may appeal
to the Supreme Court against the sentence or order on a matter of law not
including the severity of the sentence.

However, in cases of one Kiwalabye Bernard Vs Uganda (supra) it was held
that an appellate court is not to interfere with the sentence 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

10

justice or where a trial court ignores to consider an important matter or
circumstances which ought to be considered when passing the sentence
or where the sentence passed is wrong in principle.

The learned Justices of the Court of Appeal found the sentence neither illegal
nor irregular. So they found no reason to interfere with the learned trial
Judge's discretion.

The trial Court considered the aggravating and mitigating factors like having
been a first offender and took into account the one year and three months he
spent on remand, the age of 67 years and prayer for leniency. The trial Judge
considered the seriousness of the offence, the death of a toddler, the way the
murder was carried out which culminated in the death among others. He
passed the sentence of life imprisonment.

We do not consider the sentence of life imprisonment harsh or excessive. So

this ground fails.

Accordingly, the conviction and sentence are upheld and the appeal is
dismissed.

Dated at Kampala this 06th day of.. October 2017

Tumwesigye

Justice of the Supreme Court

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

Kisaakye

Justice of the Supreme

Opio Aweri

Justice of the Supreme Court

11

Mwondha

Justice of the Supreme Court

.

Tibatemwa - Ekirikubinza
Justice of the Supreme Court

12