Tomusange Lasto and Another v Uganda (Criminal Appeal No. 11 of 2021) [2026] UGSC 12 (18 March 2026)

5 10 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO . 11 OF 2021 ( CORAM : TIBATEMWA - EKIRIKUBINZA ; TUHAISE ; CHIBITA ; MUSOTA ; MADRAMA , JJ . S.C ) BETWEEN 1. TOMUSANGE LASTO 2. BULEGA RICHARD VERSUS APPELLANT 15 UGANDA RESPONDENT ( Appeal from the decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No. 0241 of 2015 , decided by Richard Buteera , DCJ , Bamugemereire , and Remmy Kasule , JJA dated 22nd July 2021 ). 20 20 JUDGMENT OF THE COURT Introduction This is a second appeal . The Court of Appeal upheld the conviction and sentence of the 1st Appellant and reduced the sentence of the 2nd Appellant to 32 years and 8 months ' imprisonment for the offence of Murder contrary to sections 188 and 189 of the Penal Code Act . 1 | Page Background The facts of the case , as admitted by the trial and 1st Appellate court , were that the 1st Appellant , Tomusange Lasto , was the biological father to the deceased , 2 ½ year old Angello Sebugwawo , and lived 5 with him in Kawaala zone , Rubaga division in Kampala . On 23rd August 2012 , the 2nd Appellant , Bulega Richard , a brother to the 1st Appellant , went to the 1st Appellant's home and requested to go with the deceased to town . He was allowed , and indeed left with the deceased . That was the last time the deceased was seen alive . On 29th August 2012 , a dismembered torso of a child was discovered in a village in Mpigi district and the same aired on news . The deceased's mother and grand - mother who had reported him missing , suspected that the body could be that of the missing child and went to Mpigi mortuary . 10 15 20 Upon viewing the torso , they identified it as that of the missing child , Angello . The 2nd Appellant also identified the body as that of Angello and proceed to inform the police that he had participated in the planning and actual murder of the deceased together with the 1st Appellant and others for ritualistic purposes . The Court of Appeal upheld both conviction and sentence of the 1st Appellant and reduced the sentence of the 2nd Appellant to 32 years and 8 months ' imprisonment . The Appellants were dissatisfied with the decision of the Court of Appeal and filed an appeal to this court on the following grounds : 2 Page 5 10 15 1. The Learned Justices of Court of Appeal erred in law when they upheld a conviction of the 1st appellant based on a retracted confession of A2 Bulega Richard . 2. The Learned Justices of Court of Appeal erred in law when they upheld the sentence of appellant Tomusange Lasto to wit 47 years and 7 months and Bulega Richard to 32 years and 8 months without consideration of the mitigating factors . Representation At the hearing of this appeal , Mr. Mooli Albert Sibuta appeared for the Appellants on state brief while Ms. Vicky Nabisenke appeared for the Respondent . Appellants ' submissions Mr. Mooli submitted that the main evidence relied on to implicate the 1st Appellant in the murder was the charge and caution statement of the 2nd Appellant , which was retracted . The 2nd Appellant retracted his confession three times , the first being upon conviction , secondly when he was put on the stand as a prosecution witness and lastly , when he was testifying as a defence witness . Counsel relied on the decision in Androa Asenwa and another Vs Uganda SCCA No. 1 of 20 1998 for the proposition that a case against an accused person cannot be based on the confession of another person unless it is supported by other independent evidence . Counsel argued that in the instant case , it was an error for the Justices of Appeal to uphold a conviction based on a retracted 3 | Page 5 10 15 20 25 confession before being satisfied that the confession was actually true . While arguing ground 2 , counsel submitted that the 1st Appellant exhibited remorse from the onset and ought to have benefited from the leniency of the court . Counsel argued that the 1st Appellate Court did not consider the mitigating factors while sentencing the 2nd Appellant after entering a plea of guilty . Respondent's submissions In reply , Ms. Nabisenke submitted that the 1st Appellate court noted that the fact that the 2nd Appellant's confession was later retracted made no difference since the 2nd Appellant had admitted the same before the trial judge at the time of plea taking . The court also noted that the admissions made in the confession were not satisfactorily withdrawn and in this case the alleged inducement or promise was not from the officer who took the charge and caution statement , but allegedly from A2's widowed step mother . Counsel submitted that the Court of Appeal found that since the confession was made before a competent officer , and there was no evidence that he or anyone in authority coerced , forced or made any promises to the 2nd Appellant , then his confession was lawful , and the attempted retraction was of no legal effect . Counsel argued that the 1st appellate court recognized the need for independent corroborating evidence of the retracted confession and in so doing found that there was corroborating evidence . Court found that there were physical pieces of bloodstained clothes as well as a 4 Page bloodstained knife found in the home of the 1st Appellant and when submitted for forensic analysis , the DNA report confirmed that the blood stains were identical to the blood of the deceased . On ground two , counsel submitted that the 1st appellate court found 5 that the aggravating factors far outweighed the mitigating factors adduced on behalf of the 1st Appellant and accordingly upheld his sentence of 47 years and 9 months ' imprisonment . In relation to the 2nd Appellant , the 1st appellate court , while conceding that the trial judge had considered the mitigating factors , noted that the seriousness of the offence was mitigated by the fact that he pleaded guilty and saved court's time and accordingly vacated his earlier sentence and re - sentenced him to 32 years and 8 months ' imprisonment after reducing the time he had spent on remand . 10 15 20 Duty of a second appellate court This is a second appeal and this court is mindful of its duty as a second Appellate Court , to decide whether the first Appellate Court failed in its duty to re - evaluate the evidence presented before the trial Court to reach its own conclusion . Consequently , this Court can only interfere with the conclusions of the Court of Appeal if it appears that in consideration of the appeal as the first appellate court , the Court of Appeal failed to re - evaluate the evidence as a whole . See Rwabugande Moses versus Uganda , Supreme Court Criminal Appeal No.25 of 2014 . 5 Page 5 The duty of a second appellate Court is intertwined with the duty of a first appellate Court although the two are different . The Supreme Court has distinguished clearly the duties cast on each Court in the case of Kifamunte Henry v . Uganda Criminal Appeal No. 10 of 1997 thus ; " We agree that on a first appeal , from a conviction by a Judge the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon . The first appellate court has a duty to review the evidence of the case 10 and to reconsider the materials before the trial judge . The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it . When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour the appellate Court must be guided by the impressions made on the judge who saw the witnesses . However , there may be other circumstances quite apart from the manner and demeanour , which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen . See Pandya v . R [ 1957 ] EA 336 , Okeno v . Republic [ 1972 ] EA 32 and Charles Bitwire v . Uganda Supreme Court Criminal Appeal No. 23 of 1985 at page 5 . 15 20 25 Furthermore , even where a trial Court has erred , the appellate Court will interfere where the error has occasioned a miscarriage of justice : 6 Page 5 10 15 It does not seem to us that except in the clearest of cases , we are required to re - evaluate the evidence like is a first appellate Court save in Constitutional cases . On second appeal , it is sufficient to decide whether the first appellate Court on approaching its task , applied or failed to apply such principles . Therefore , the duty of a second appellate Court is to examine whether the principles which a first appellate Court should have applied were properly applied and if it did not , for it to proceed and apply the said principles . Analysis Ground 1 The 1st Appellant faults the Justices of Appeal for upholding his conviction basing on a retracted confession of the 2nd Appellant . It is trite law that courts treat retracted confessions of a co - accused person with significant caution . When such a confession implicates a co - accused , its admissibility and evidentiary value become highly restricted and subject to judicial safeguards . Under Sections 24 , 25 and 30 of the Evidence Act ( Cap 6 ) , a confession must be voluntarily made without inducement , threat , or promise to be admissible . This 20 principle was firmly established in the Ugandan case of Tuwamoi v . Uganda [ 1967 ] EA 84 , where the Court of Appeal emphasized that retracted or repudiated confessions must be treated with extreme care . The court stated that although a retracted confession can still be relied upon , the trial judge must caution themselves and look for 7 | Page 5 10 15 20 independent corroborative evidence that links the co - accused to the alleged offence . In Yowana Sserunkuma v . Uganda , Criminal Appeal No. 8 of 1989 , the Supreme Court of Uganda reinforced the requirement for corroboration when dealing with confessions that implicate co- accused persons . The courts have also clarified that the weight given to a retracted confession depends on the circumstances in which it was made , including whether the accused was informed of their rights , whether the statement was recorded properly , and whether there is evidence of police misconduct or coercion . At the trial court , the 2nd Appellant pleaded guilty and was accordingly convicted . After his conviction , he testified as a state witness and during his testimony , he retracted his earlier statement . He was later called as a defence witness . In his oral statement , he stated that his other brothers were not involved in the murder . He claimed that he was advised by Aida Nabatanzi , the 2nd Appellant's mother , to accuse his brothers so that after sentence she could sell their land and use the money from the sale to get him out of prison . The Trial judge disbelieved the second oral testimony and found it as an afterthought with inconsistent facts that were aimed at redeeming the 1st Appellant's brother . The 2nd Appellant was found guilty and sentenced to 35 years imprisonment . Dissatisfied with the decision of the Court of Appeal , the Appellants were granted leave to file an amended Memorandum of Appeal to 25 include both Appellants . The 1st Appellant appealed against both 8 Page 5 10 15 20 25 conviction and sentence while the 2nd Appellant appealed against sentence only . On first Appeal , while considering the law on retracted confessions , the learned Justices of Appeal held as follows : " In his charge and caution statement , the 2nd Appellant confessed that he and his brothers conjured spirits . They claimed that the spirits asked for the sacrifice of two human beings ; a man of about 20 years with no wife and a child . It ought to be remembered that the circumstances leading to the confession made by the 2nd Appellant are that once the body of the child was discovered and he was arrested he spontaneously offered to say how their victims were murdered . The Charge and Caution statement came as a formal and professional way of recording his confession but he had already blurted out what they did . In his confession he stated that he was the one who requested for the 1st Appellant's son Angello , picked him up and met the 1st Appellant in Busega . He stated further that it was at Busega where the two met before they took a boda - boda to Nsujjumpolwe . The Appellants looked around until they were able to find a deserted place . At Nsujjumpolwe , they surveyed a bush and hid behind it with the child . While behind the bush , the 1st Appellant then put his son on a white cloth , killed him , and removed the body parts that were to be used in ritual sacrifice . He folded the body parts in the white cloth which he placed in a waterproof polythene bag . The fact 9 Page 5 10 15 20 25 that the confession was later retracted made no difference in this case since the Appellant had admitted the same in court at plea - taking . Unless the admissions made in the confessions are satisfactorily withdrawn , or , the making of it explained as having proceeded from fear , duress , promise , or the like , of someone in authority . A confession may be retracted or repudiated . In Tuwamoi ( supra ) the distinction between a repudiated and retracted confession was made . 'A Confession is retracted when the accused person admits that he made the statement recorded but now he seeks to recant what he said generally on the ground that it was obtained by force or that the appellant was induced to make the statement . On the other hand a repudiated statement is one which the accused person avers that he never made the same . ' In this case the 2nd Appellant attempted to retract his confession claiming that he was coerced . For an appellant to make claims of coercion , force , or inducement , a confession ought to have been taken by a person in authority over him / her . In this case , the alleged promise to the 2nd Appellant came from a relative of the female gender who was a widowed stepmother . There is nothing on the record to prove that this widowed stepmother had the sort of economic or social authority over her step son to make him obey her to the point of defeating the course of justice . On the contrary , there was sufficient proof that the son betrayed elements of strong distrust and even a hint of suspicion of his stepmother . Since the confession was made before a 10 | Page competent officer , in absence of any evidence of coercion , force , or promise from anyone in authority , we find that the confession was lawful and the later attempts to retract it were of no legal effect . 5 ... In the premises , therefore , we agree with the Trial Judge that the oral testimony of the 1st appellant was an afterthought as it materially contradicted what he had confessed to when he pleaded guilty . We find that the trial Judge did not err in declining to rely on it . 10 15 20 25 The general rule is that a confession retracted or not must be accepted with the greatest caution . Prudence begs for independent corroborating evidence in order to base a conviction on such a confession . A retracted confession should carry practically no weight as against a person other than the maker ; ... In the case before us there are three distinctions that need to be made . The first is that at different stages the 2nd Appellant attempted to retract his confession . He retracted his confession after he had pleaded guilty and had been convicted . This was when he was put on the stand to testify as a prosecution witness . He finally retracted after he was called as a defence witness . The second is that this confession was corroborated by physical pieces of bloodstained articles found in the home of the 1st Appellant . The third is that the DNA samples taken of the articles found in Appellant No.1's house proved that the blood 11 | Page samples were identical with the samples taken from the deceased . It should be noted that a DNA stands alone as another form of physical evidence . DNA data is considered to be more reliable than many other kinds of crime scene evidence . The 5 unique profile of each DNA sample is analyzed for comparison to a crime scene evidence . We therefore agree that when the evidence was pieced together , it created the perfect profile of what the trial Judge would be looking for in order to rely on circumstantial evidence . 10 15 We have carefully read and analyzed the above quoted findings of the first appellate court . Court observed that the trial Judge did not solely rely on circumstantial evidence to convict the 1st Appellant . The court relied on the evidence of PW4 , No. 28302 D / sgt Kasaala Nathan , the investigating officer , who testified that upon searching the 1st Appellant's home , a blood - stained local knife wrapped in bark cloth , a white blood - stained short , and a short - sleeved shirt with bloodstains on the sleeves were recovered . Geoffrey Onen , an analyst working with the Directorate of government analytical laboratory , testified as PW5 and stated that he 20 carried out comparisons between the DNA profiles of the bloodstains on the white cloth and the knife recovered at the scene of the crime and the bloodstain on both knives and the same matched that of the deceased . 25 In our view , the 1st Appellate Court properly re - evaluated the evidence of identification on record . We therefore find that the 12 | Page learned Justices of Appeal fulfilled their duty as the first Appellate Court to re - evaluate the evidence afresh and we find no reason to interfere with the decision . Ground 2 5 This ground faults the decision of the learned Justices of Appeal when they upheld the sentence of the 1st Appellant , Tomusange Lasto , to 47 years and 7 months and that of the 2nd Appellant , Bulega Richard to 32 years and 8 months without consideration of the mitigating factors . 10 15 20 For this Court , as a second appellate court , to interfere with the sentence of a trial Court it must be shown that the sentence is illegal , there was failure to take into account a material factor or that an error in principle was made . See : Rwabugande Moses Vs Uganda , Supreme Court Criminal Appeal No. 25 of 2014 ; Kyalimpa Edward Vs Uganda , Supreme Court Criminal Appeal No. 10 of 1995 ; Kamya Johnson Wavamuno Vs Uganda , Supreme Court Criminal Appeal No. 16 of 2000 ; and Kiwalabye Bernad Vs Uganda , Supreme Court Criminal Appeal No. 143 of 2001 . The Justices of Appeal , while addressing the grounds on sentence of the Appellants stated as follows ; " The 1st appellant was a young man with a family . Nevertheless , he was not a first offender . He murdered 2 people all in ritual murders . In the instant case , he had murdered his son in the quest for wealth . All these are strong aggravating factors that 13 | Page 5 10 15 20 the Trial Judge considered . She rightly noted that he was a danger to his family . We note on our part that the aggravating factors far outweighed the mitigating factors . Under the circumstances , we find that the Trial Judge exercised her discretion in sentencing the 1st appellant with due consideration . The sentence is legal , we don't find it harsh or excessive . As far as the 2nd Appellant is concerned , the trial Judge considered the mitigating factors : He pleaded guilty , he was sorry , and had a family . She sentenced him to 37 years and 8 months ' imprisonment and noted : ' Even though the convict is a first offender , the offence for which he was indicted carries a maximum sentence of death . Even though the convict pleaded guilty to the indictment , regretted his actions , appeared remorseful , and is a young man with a family who may be useful to this country after serving his sentence , this court should send a strong message to deter would - be perpetrators of an inhuman act of child sacrifice which has become rampant in the county . ' We agree that the 2nd Appellant committed a serious offence . But the seriousness of the offence was mitigated by the fact that he pleaded guilty and saved the court's time . Courts have long considered a plea of guilty as a mitigating factor . This consideration has also been guided by Regulation 21 14 | Page 10 15 (k ) of The Constitution ( Sentencing Guidelines for Courts of Judicature ) ( Practice ) Directions , 2013 . We have considered the fact that the 2nd Appellant readily pleaded guilty on the first day of the hearing . Unlike the 1st 5 Appellant , the 2nd Appellant was very remorseful . He has a family . Since the Appellant had readily pleaded guilty , was remorseful , and had a family , we are of the view that the sentence of 37 years and 8 months was rather harsh and excessive . In the premises , we vacate the same . We sentence the 2nd appellant to 35 years imprisonment . Further , following the mandatory requirement of Article 23 (8 ) of the Constitution of the Republic of Uganda , 1995 as applied in Regulation 15 (2 ) of The Constitution ( Sentencing Guidelines for Courts of Judicature ) ( Practice ) Directions , 2013 , which makes it mandatory for us to consider in 2nd appellant's favour the period spent on remand from the sentence considered appropriate , we note that the 2nd Appellant was in custody for 2 years and 4 months . We accordingly take into account the 2 20 years 4 months and set it off the sentence of 35 years ' imprisonment . 25 25 ... We , therefore , sentence the 2nd Appellant to a term of imprisonment of 32 years and 8 months ' imprisonment , the said sentence to be served starting from the date of the 2nd Appellant's conviction that is 17th March , 2015 . 15 | Page 5 10 15 From the above excerpt , it is clear that the first appellate court re- evaluated the sentencing order of the learned trial judge regarding the 1st Appellant and noted that the trial Judge considered both mitigating and aggravating factors while sentencing the 1st Appellant . The Justices of Appeal also re - considered the sentencing order of the 2nd Appellant and resentenced the 2nd Appellant to 32 years and 8 months ' imprisonment after deducting the period spent on remand and the fact that the 2nd Appellant saved court's time and entered a plea of guilty . In the result , we find no merit in this Appeal and is thus dismissed . Final orders By majority decision , this Court confirms the convictions of the Appellants and upholds the sentences imposed . The 1st and 2nd Appellants shall accordingly continue to serve their respective sentences . We so order . 20 Dated at Kampala this 18th .day of March ...... 2026 hesalemore . Prof. Lillian Tibatemwa - Ekirikubinza JUSTICE OF THE SUPREME COURT 16 Page 5 whair Night Percy Tuhaise JUSTICE OF THE SUPREME COURT Mike Chibita JUSTICE OF THE SUPREME COURT 10 Stephen Musota JUSTICE OF THE SUPREME COURT Christopher Madrama 15 JUSTICE OF THE SUPREME COURT 17 Page