,:. , 
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THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA AT KAMPALA 
CRIMINAL APPEAL NO: 17 OF 2014 
	8 	(Appeal from the judgment of the Court of Appeal at Kampala, before Justice Remmy Kasule, 
Solomy Bosa and Geoffrey Kiryabwire, JA, dated 27th June 2014). 

	 MAGEZI GAD	APPELLANT  
VERSUS 
UGANDA :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT 
CORAM: TUMWESIGYE; KISAAKYE; MWANGUSYA; OPIO-AWERI; MWONDHA; 
J.J.S.C. 

16 

JUDGMENT OF THE COURT 
Introduction 
This is an appeal from the decision of the Court of Appeal which dismissed 
an appeal against conviction and sentence by the High Court for the 
appellant for murder contrary to Sections 188 and 189 of the Penal Code 
Act Cap 120 amended. 

Back ground of the case. 
On the 28th January 2008 at around 7:30pm, two strangers (the appellant 
	24   	and another person (now deceased), went to the home of a one Kabuzi 
         Daudi (the deceased and victim) claiming to be his relatives who wanted to 
         spend the night at his home. 
They were welcomed by PW5 (Nshabirye), a granddaughter to the 
deceased. The deceased failed to recognize the visitors but nevertheless 
entertained them. After a while, the deceased left for the kitchen and the 
appellant's colleague followed him with the excuse that he wanted to speak 
to him. PW4 (daughter to the deceased) stayed chatting with the appellant. 
	32 	When Nshabirye (PW5) returned from the shop, she found the deceased 
  dead in the kitchen. On seeing that the door to the main house was not 
  open, she proceeded to inform her uncle Rubasa (PW3) about the death of 

                                                 [1] 

the deceased. PW3 went to the crime scene, forced open the door to the 
main house and announced the death to PW4 and the appellant. Upon 
hearing the sad news, the appellant got up, opened the main door and fled. 
	8 	 Being at night, the appellant got lost in the village and was arrested under 
suspicion of being a wrong character. The appellant was taken to the 
chairman (PW8) who interrogated him and upon being satisfied about his 
identity as Magezi s/o Sebbi of Kitojo, gave him direction to Kitojo Village. 
The appellant was later arrested from his home in Rubare, Ntungamo District 
and identified vide an identification parade at Kabale Police Station. 
Dr. Mugabi Mathia (PW2) of Mporo Health Centre carried out a postmortem 
examination on the deceased vide police form 48B and established that the 
	16 	deceased had two deep cuts on the head into the brain and it was 
   extending to the right and left ear with the skull bones cut through. He 
   concluded that the deceased died from hemorrhagic shock and the weapon 
   used was a panga. The same Doctor also examined the appellant and found 
  that he was normal and had a minor abrasion in the left palatial area. The 
  appellant was consequently indicted together with his colleague for murder 
  contrary to Sections 188 and 189 of the Penal Code Act in the High Court at 
  Kabale. His colleague however died before the conclusion of the trial. 
	24 	At the trial, the prosecution led a total of 11 witnesses to prove the 
    ingredients of murder. 
The accused pleaded alibi in defense and claimed that he was in his village 
all the while. He also stated that he was identified by a young girl (PW5) 
only after being pointed at by a certain woman. 
On the 20th April 2009, the appellant was convicted for murder contrary to 
Sections 188 and 189 of the Penal Code Act and sentenced to life 
imprisonment. 
	32 	Being dissatisfied with the High Court decision, the appellant appealed to 
the Court of Appeal vide Criminal Appeal No. 61 of 2009 against both 
conviction and sentence on the following grounds: 
(2) 

1)	That the learned trial judge erred in law and fact when he failed to 
properly evaluate the evidence as a whole and consequently arrived at 
a wrong decision. 
8 
2)	That the learned trial judge erred in law and fact when he erroneously 
concluded that, on the evidence on record, the appellant was correctly 
identified and placed at the scene of crime and positively linked to the 
offence charged. 
3)	That the leaned trial judge erred in law and fact when he concluded that 
the chain of identification by the prosecution witnesses rendered the 
	16 	appellant's alibi and issue of contradictions in the manner of dressing 
by the accused person irrelevant. 
4)	That the learned trial judge erred in law and fact when he concluded 
that common intention to commit the offence charged had been proved 
against the appellant. 
5) That the learned trial judge erred in law and fact when he sentenced the 
	24 	appellant to life imprisonment which was manifestly excessive in the 
circumstances of this particular case. 
On the 2yth of June 2014, the Court of Appeal dismissed all the grounds of 
appeal and confirmed the decision of the High Court. The appellant 
dissatisfied with the decision of the Court of Appeal, lodged this appeal on 
the 6th day of May, 2016. 
The memorandum of appeal contained the following grounds:- 
	32 	1) The Honorable Justices of the Court of Appeal erred in law when they 
failed to properly re-evaluate the evidence in this case and so reached 
a wrong decision. 
2)	The Honorable Justices of the Court of Appeal erred in law when they 
rejected the appellant's alibi and instead confirmed that he had been 
placed at the scene of crime. 
[3] 

3)	The Honorable Justice of the Court of Appeal erred in law when they 
concurred with the High Court that common intention to commit the 
offence had been proved against the appellant. 
8 
4)	The Honorable Justices of the Court of Appeal erred in law when they 
confirmed the sentence of the life imprisonment which was manifestly 
excessive in the circumstances of the case. 
The appellant thus prayed this honorable court to quash the conviction, set 
aside the sentence of life imprisonment and in the alternative, reduce the 
sentence of life imprisonment. 
	16 	Representation. 
The appellant was represented by Senkezi Steven on state brief while the 
respondent was represented by Betty Khisa, the Deputy DPP. Both counsel 
made oral submissions. 
Submissions of counsel. 
Counsel for the appellant argued grounds 1, 2 and 3 together since they all 
concern participation of the appellant in the crime. 
Counsel argued that the learned Justices of the Court of Appeal did not 
24 abide by their duty to properly re-evaluate the evidence which was lacking 
in many areas which included:- 
a)	The appellant was identified vide an identification parade which was not 
properly conducted. 
b)	That PW3 and PW4 in their testimonies as eye witnesses stated that on 
the date in question when the offence was committed, it was their first 
time to see the appellant and they next saw him in court. 
c)	That the conditions for identification were that, it was dark and the only 
	32 	lighting was a candle in the main house. 
He further contended that the Justices of the Court of Appeal erred when 
they observed that the appellant spent close to two hours with PW4 and 
PW5, and yet no evidence on record showed the time that the appellant 
spent with the witnesses, especially PW5. 
[4] 

.r" . 
Counsel concluded that there was no proper conditions for identification 
and thus prayed this honorable court to quash conviction of the appellant. 
In response to the above submissions, the Deputy DPP contended that 
	8 	evidence on record was properly re-evaluated by the Court of Appeal and 
therefore saw no need for this honorable court to re-evaluate this evidence 
again. She thus prayed court to dismiss these grounds. 
COURT'S FINDINGS. 
The duty of the Court of Appeal as a first appellate court is provided under 
Rule 30 (1) of the Court of Appeal Rules as follows> 
"On any appeal from a decision of the High Court acting in the exercise of 
the original jurisdiction, the court may,' 
	16 	Reappraise the evidence and draw conclusion of fact". 
The Supreme Court in the case of Kifamunte Henry VS Uganda, SCCA No.1 0 
of 1997 held that it is the duty of the first appellate court to rehear the case 
on appeal by reconsidering all the materials which were before the trial court 
and make its own mind. Failure to do so amounts to an error of law; Also 
see Bogere Moses and Another VS Uganda, Supreme Court, Criminal Appeal 
No. 1 of 1997". 
This being a second appeal, this court does not have the duty to re- 
	24 	evaluate evidence on record unless it has been shown that the first 
appellate court did not re-evaluate the evidence on record. In Areet Sam VS 
Uganda, Criminal Appeal No. 20 of 2005, the Supreme Court reiterated the 
above duty in the following terms:- 
"We also agree with counsel for the respondent that it is trite law that as a 
second appellate court we are not expected to re-evaluate the evidence or 
question the concurrent findings of facts by the High Court and Court of 
Appeal. However, where it is shown that they did not evaluate or re-evaluate 
	32 	the evidence or where they are proved manifestly wrong on findings of fact, 
this court is obliged to do so and to ensure that Justice is properly and truly 
served”. 
(5) 

In dealing with the evidence of identification, alibi, common intention and 
contradictions, the learned trial judge, in a very well reasoned judgment, 
stated as follows- 
	8 	"If I analyze this evidence against the defence submission that PW4, PW5 
and PW6 were mistaken about the identity of the accused, I establish the 
following facts. That the visitors to the deceased's home went there when it 
was still day time and when they started conversing with the deceased, one 
could still see. It is later that the deceased called for a candle, secondly, the 
time the two spent with the deceased and PW4, was not a brief encounter 
like is the case in a sudden attack. Though the visitors were strangers to the 
family members of the deceased, they engaged in a friendly conversation that 
16  offered the witnesses ample opportunity to observe their visitors. 
When PW6 met them and they asked him about where they could buy peas, 
he knew or recognized the accused and one Ngurusi who was pushing their 
bicycle. He knew the accused by name as Magezi son of Sebbi and this is 
what he told PW4 when he answered the alarm announcing the death of 
Kabizi. When this evidence is taken together with that of PW3 that when he 
entered and found PW4 having a conversation with a man as soon as he 
informed that Kabizi is dead, the man got up and ran away. Why could a 
	24 	visitor run away upon being told that the host is dead, unless the visitor is 
   aware of the circumstances of that death? 
This evidence when compared with that of PW8 who interrogated the accused 
at 9:00pm which is the time from the running away from Kabizi's home, and 
the subsequent revelation by the accused that he is Magezi son of Sebbi 
makes the prosecution evidence credible that the Magezi son of Sebbi that 
PW6 saw go to the deceased's home is the same one who ran away from 
that home got lost along the village paths and is the same one PW8 
	32 	interrogated and after establishing his identity released him and gave him 
   directions on how to reach his fathers' village. The evidence of PW4, PW5, 
   PW6 and PW8 accounts for the movement of the accused with certainty. The 
   bicycle that PW6 saw with Magezi son of Sebbi is the bicycle that was found 
   in the bush by PW7 and exhibited in court. 
Again this piece of circumstantial evidence raises strong inference of guilt 
beyond mere suspicion. The chain of identification from PW4, PW5, PW6 and 
[6] 

PW8 renders the alibi and the issue of contradictions in the manner of dress 
irrelevant. The thread or chain of evidence places the accused in the home of 
the deceased on the evening and early night of 28/01/2005". 
	8 	The Court of Appeal after re-evaluating the evidence on record, agreed with 
the trial judge that the appellant was correctly identified as found by the trial 
judge. The court also agreed with the trial judge that the contradictions 
raised by the appellant as to the time, descriptions of dressing and colour 
of the bicycle seat did not raise any doubt in the prosecution case because 
the appellant was correctly identified by PW4 PW5 PW6 and PW8 and that 
the evidence did place the applicant at the scene thereby destroying his 
alibi. 
	16 	Submissions of both counsel. 
After perusing the submissions of both counsel, we agree with the 
conclusions of the trial judge and the Court of Appeal in holding that the 
appellant was correctly identified at the scene through the evidence of PW4, 
PW5, PW6 and PW8 which evidence amply placed the applicant squarely at 
the scene of crime to the extent that the appellant could not have been seen 
at the scene at 8:00pm and be at his home village far away at 9:00pm. We 
also agree with the conclusion of the Court of Appeal that the contradictions 
	24 	as to the time, descriptions of dressings and the colour of the bicycle seat 
  were minor and did not raise any doubt in the prosecution case because the 
  appellant was correctly identified by PW4, PW5, PW6 and PW8. 
With regard to common intention both the trial Judge and Justices of the 
Court of Appeal were alive in the application of the law on common intention 
as provided under Section 20 of the Penal Code Act. Both courts concluded 
that the appellant was with his colleague who murdered the deceased and 
disappeared. The two were seen together at the home of the deceased. 
	32 	They had a discussion together. The appellant first tried to send pw4 away 
    to go and buy them drinks but pw4 refused to go. Further proof of common 
    intention was that as soon as PW3 broke the news that the deceased was 
   dead, the appellant ran away from the scene. That scheme was intended to 
   create opportunity to have the deceased killed quietly. In further pursuance 
   to allow the assailant chance to be alone with the deceased, the appellant 
   stopped pw4 from joining the company of the deceased in the kitchen. That 
[7] 

· 
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was not a natural conduct. The only plausible inference is that the appellant 
ran in fear because he was part and parcel of the scheme to kill the 
deceased. We agree with the conclusion of the trial judge and the Court of 
	8 	Appeal that the conduct of the appellant as summarized above laid the 
strategy through which his colleague murdered the deceased while his 
running away was proof of his guilt. In short both the appellant and his 
colleague had a common intention to kill the deceased; see Charles 
Komwisa VS Uganda [1997] HCB 86. 
In conclusion, we find that grounds 1, 2 and 3 must fail. 
Ground 4 
Harsh and Excessive sentencing. 
	16 	Counsel for the appellant argued that the sentence of imprisonment for life 
was excessive given the circumstances of the case. His argument was that 
since the appellant did not commit the murder himself, his sentence should 
be reconsidered and substituted for a lighter sentence. He further 
contended that Article 23 (8) of the Constitution implores courts while 
sentencing to consider the period spent by an accused on remand. That 
this was not considered by the lower courts yet it was manifestly addressed 
by appellant's counsel. He prayed that court should reduce the sentence. 
	24 	In response, the learned Deputy DPP argued that in line with the facts of the 
case, the deceased was brutally killed yet he was a helpless old man. She 
contended that life imprisonment was justified. Counsel however conceded 
to the fact that the period the appellant spent on remand should have been 
considered by the lower courts. She thus prayed court to issue guidance on 
this point. 
Court's findings. 
After perusing the court record and both counsel's submissions, we now 
32 	proceed to consider the above grounds. 
The main complaint was that the sentence of life imprisonment was harsh 
and that the Court of Appeal erred in law for confirming it without 
considering the period of five years the appellant had spent on remand, 
contrary to Article 23 (8) of the Constitution. 
[8] 

	..
~ 
• 
. 

It is a well established principle in our jurisprudence that an appellate court 
is not required to interfere with the sentence imposed by a trial court which 
has exercised its discretion on sentence unless the exercise of the 
	8 	 discretion is such that it results in the sentence imposed being 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 which ought 
to be considered when passing the sentence or where the sentence 
imposed is wrong in principle; see Kiwalabye Benard VS Uganda; Supreme 
Court, Criminal Appeal No. 143 of 2001. 
In confirming the sentence imposed by the trial court, the Court of Appeal 
had this to say; 
	16 	"In the instant case, the appellant was sentenced to life imprisonment for the 
offence of murder. It is argued that it was excessive since the appellant was 
not actively involved in the murder of the deceased. However, in consonance 
with S. 20 of the Penal Code ACT, CAP 120 the appellant is presumed to 
have committed the offence. In light of that, we too agree with the trial Judge 
that life imprisonment sentence is appropriate in the circumstance of this 
case. The sentence of the trial judge is hereby upheld as we see no valid 
reason to interfere with it". 
	24 	We agree with the above conclusion. The Court of Appeal did apply correct 
   principle and did re-evaluate the mitigation of sentence and rightly came to 
  the conclusion that the sentence of life imprisonment imposed by the Trial 
  Judge in the case of murder was appropriate in the circumstances. 
We therefore have no reason to interfere with the above conclusion. 
It was further contended that the learned trial judge in passing sentence of 
life imprisonment did not take into account the period of five years the 
appellant had spent on remand contrary to Article 23 (8) of the Constitution. 
32   The above Article provides as follows:-
"Where a person is convicted and sentenced to a term of imprisonment for 
an offence, any period he or she spends in lawful custody in respect of the 
offence before the completion of his or her trial shall be taken into account in 
imposing the term of imprisonment". 
[91 

, 	1 
• 
• 
-. 
The above Article is about legality of sentence. It is mandatory for a trial 
court sentencing a convicted person to take into account the period spent 
in custody; see 8ashir Ssali VS Uganda, Criminal Appeal No. 40 of 2003 
8 	(SC), where a trial judge fails to comply with Article 23 (8) of the 
Constitution, the Supreme Court even in its own motion can correct the 
sentence by considering the period spent in lawful custody before 
conviction; see Sebide VS Uganda, Criminal Appeal No. 22 OF 2002 (SC). 
We are of the considered view that like a sentence for murder, life 
imprisonment is not amenable to Article 23 (8) of the Constitution. The 
above Article applies only where sentence is for a term of imprisonment ie. 
a quantified period of time which is deductable. This is not the case with life 
16 	or death sentences. 
For the above reasons we find no merit in this ground of appeal. In the 
result, we dismiss the appeal and confirm the decision of the trial court and 
the Court of Appeal. 
l7th  
	Dated at Kololo this-: 	. 
Hon. Justi 
4)	
24 

Hon. Justice Dr. Esther Kisaakye, JSC 
~~ 
Hon. Justice Eldad Mwangusy ,JSC 
Hon. Justice Opio- 
5)	
r~, JSC 

Hon. Justice Faith Mwondha, JSC 
[10)