5 
10 
15 

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 
U
GANDA	RESPONDENT 
 
[Appeal from the judgment of the Court of Appeal (Kasule, Opio-Aweri and Kakuru, JJA) 
dated 19th 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 7th 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 
4 

	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 
5 

	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. 
6 

	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 
7 

	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 
8 

	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. 
9 

	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 
10 

	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 
11 

	•. 	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 
12 

- 
..•. 
	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 
13 

	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. 
14 

, , 
	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 

- 
-. 
	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 
17 

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 

	5 	consult the appellant. It cannot be said that all witch doctors 
engage in human sacrifice. DW5 the Local Council Chairman of 
Mayinja Zone, the area where the appellant was operating his 
shrine testified that he had known the appellant as a witch doctor 
and that apart from the incident which happened when he was 
10 	away (leading to the appellant being arrested for the offence he was 
indicted for) he had no problem with him. The appellant himself 
testified that he could never engage in child sacrifice. 
We, therefore, find that the learned Justices of Appeal erred in law 
and in fact when they failed to evaluate the evidence and came to 
15 	the conclusion that the prosecution evidence satisfied the required 
standard of proof beyond reasonable doubt. Accordingly, the 
appellant's ground one of appeal succeeds and his conviction is 
quashed. 
Since the appellant's ground 2 is based on his conviction its 
 consideration becomes no longer necessary. The appellant's 
sentence is, therefore, set aside. 
 
	Dated at Kampala this 	2nd 	day of 	August 	2017 
25 

Bart M. Katureebe 

CHIEF JUSTICE 
19 

.. " 
5 
10 
15 
20 

Jotham Tumwesigye 
JUSTICE OF THE SUPREME COURT 

Dr. Esther Kisaakye 
JUSTICE OF THE SUPREME COURT 

Faith Mwondha 
JUSTICE OF THE SUPREME COURT 

Prof. Lilian Tibatemwa-Ekirikubinza 
JUSTICE OF THE SUPREME COURT 
20