Ssemwanje Farouk v Uganda (Criminal Appeal No. 74 of 2021) [2026] UGSC 3 (30 January 2026)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. OO74 OF 2O2I SSEMWANJE FAROUK APPELLANT VERSUS UGANDA RESPONDENT (Appeal from the decision of the Court of Appeal (Kakuru, Kibeedi and Mulyagonja, JJA) dated 19h October, 2021 in Criminal Appeal No. 19 of 2018) CORAM: HON. HON. HON. HON. HON. MR. JUSTTCE MrKE J. CHIBTTA, JSC LADY JUSTICE ELIZABETH MUSOKE, JSC MR. ]USTICE CHRISTOPHER MADRAMA, JSC LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC LADYJUSTICE MONICA K, MUGENYI, JSC JUDGMENT OF THE COURT This appeal is against the decision of the Court of Appeal (Kakuru, Kibeedi, and Mulyagonja, JJA) dismissing the appellant's appeal against his conviction, by the High Court, of the offence of murder, but allowing his appeal against the sentence imposed for that conviction and substituting a sentence of 17 years imprisonment. Background The appellant was, on 2nd February, 20L8, convicted by the High Court (Oyuko, J) of murdering Matovu Amon ("the deceased") on 2'd December, 2013. He was sentenced to 30 years and 11 months imprisonment. In the trial Court, the prosecution's case was that, on the fateful day, the deceased was attacked at his home in Najjanankumbi, Kampala District, by 4 or 5 young men including the appellant and one Wamala Alex, the deceased's grandson. The main prosecution witness was PW1 Kamoga Newton who was 13 years old when he testified on 16th January, 2018. PW1 was a grandson to the deceased and lived at the deceased's home together with other siblings, including Wamala Alex who was the oldest. In the morning of the 1 fateful day, Wamala Alex had sent the younger siblings away from the deceased's home telling them to go to the nearby Masajja Town. While there, all the younger siblings had gone into an internet cafe with the exception of PW1 who was considered too young to be allowed in. PW1 had decided to return home to his grandfather's house. PW1 testified that when he returned home he met Wamala Alex and some of his friends, including the appellant, whom he knew physically but not by name. PWl stated that the young men had acted panicky and suspicious when they saw him and had tried to send him away from the home and to refuse him entry into his grandfather's house. PW1 had, however, insisted and found his way into the house where he found his grandfather lying in one of the rooms bound with a rope, with a cloth pushed inside his mouth to gag him. PW1 stated that he had untied his grandfather and then exited the house to look for help from the neighbours. PW1 said that while outside the house, he met Wamala Alex and his accomplices, and they threatened to harm him if he spoke to anyone about what had happened to his grandfather. Nonetheless, PW1 found a neighbor, he referred to as Aunt Cathy, to whom he reported. PW1 and Aunt Cathy had then returned to the house where they found the deceased in a very poor health state. The deceased died not long after. Subsequently, several residents and relatives of the deceased, including his son PW2 Bukenya Bonny visited the scene. The area police were also notified and they sent some officers to the scene including PW3 Detective Assistant Inspector of Police Odyek Bernard who conducted preliminary Investigations including examining the scene and drawing a sketch map. In due course, the appellant was arrested and charged in connection with the murder of the deceased, and tried before the High Court. The learned trial Judge believlng the prosecution case and evidence convicted the appellant of the murder of the deceased. The appellant was dissatisfied and appealed to the Court of Appeal which, as indicated earlier, upheld his conviction but imposed a shorter sentence. Being dissatisfied with the decision of the Court of Appeal, the appellant lodged this further appeal to this Court, The following grounds were framed In the appellant's memorandum of appeal 2 2) The learned Justices of Appeal erred in law when they disregarded the appellant's alibi thereby wrongly confirming his conviction. 3) The learned Justices of Appeal erred in law when they confirmed the appellant's conviction which was based on the uncorroborated evidence of PW1 (a minor). 4) The learned Justices of Appeal erred in law when they confirmed a conviction of murder that was not based on a post mortem repoft thus creating doubt on the cause of death. s) The learned Justices of Appeal erred in law when they confirmed the appellant's conviction without any exhibits to corroborate the testimony of PW1." Representation At the hearing, Mr. Andrew Ssebugwawo appeared for the appellant on State Brief. Ms. Happiness Ainebyoona, Chief State Attorney in the Office of the Director of Public Prosecutions, appeared for the respondent. Legal Arguments The written submissions filed by the respective counsel on behalf of the parties and adopted at the hearing contain the respective parties' submissions in this appeal. Appellant's submissions Counsel for the appellant argued the grounds in the following order: grounds L and 2, then grounds 3 and 5, and lastly, ground 4 of the appeal. Grounds l and 2 In relation to ground 1, counsel for the appellant reiterated his contention that there was no credible evidence on record to support the lower Courts' concurrent finding that the appellant had participated in the murder of the deceased. 3 "1) The learned Justices of Appeal erred in law when they found that the appellant participated in the commission of the offence thereby wrongly confirming his conviction. In respect of ground 2 of the appeal, counsel for the appellant submitted that the Court of Appeal erred in upholding the High Court's decision to reject the appellant's alibi. Counsel highlighted that the appellant had, while testifying, denied knowledge of the deceased or any of the prosecution witnesses prior to the trial. Counsel, referred to the principles on evaluation of alibi evidence as articulated in this Court's decisions in Festo Androa Asenua and Anothervs. Uganda, CriminalAppeal No. 1of 1998 and Frank Ndahebe vs. Uganda, Criminal Appeal No. 2 of 1993 (both unreported), and contended that the appellant having raised his alibi, the prosecution bore the burden to adduce evidence placing the appellant at the scene of crime in order to disprove the appellant's alibibul had not adduced any such credible evldence. Counsel for the appellant further faulted the Court of Appeal's finding that the appellant had not raised his alibi prior to the hearing, arguing that this finding was in disregard of statements made by the appellant in support of his alibiwhen he was first taken into police custody. Counsel submitted that the Court of Appeal took the erroneous view that the appellant's trial counsel was under an obligation to pursue the appellant's alibi in light of the highlighted statements yet it was the police's duty to investigate the statements instead. Counsel further submitted that the prosecution evidence was tainted by grave contradictions and inconsistencies and could not form the basis for disregarding the appellant's alibi. However, he did not substantiate on this point. Grounds 3 and 5 In respect of grounds 3 and 5, counsel for the appellant faulted the Court of Appeal for believing the prosecution evidence although it contained several grave contradictions and inconsistencies. Counsel submitted that there were inconsistencies in the testimony of PW1 on whether or not the appellant had physically assaulted the deceased. In the earlier parts of his evidence, PW1 testified that the appellant and his friends had killed the deceased but he stated in subsequent testimony that he did not see the appellant or his 4 friends bind the deceased with a rope. Counsel submitted that the Court of Appeal had erred In finding that there were no inconsistencies In the testimony of PW1 and also in finding that PWl had properly identified the appellant as one of the assailants who had participated in causing the death of the deceased. In addition, counsel for the appellant submitted that the lower Courts had, in believing the evidence of PW1, failed to heed the warning in Tindigirwa Mbale vs. Uganda, Supreme Couft Criminal Appeal No. 09 of 1987 (unreported) that a Court should treat circumstantial evidence with caution and also narrowly examine it because it can be easily fabricated. Ground 4 Counsel for the appellant faulted the Court of Appeal for upholding the trial Court's finding that the deceased's death resulted from strangulation in the absence of a post mortem repoft to confirm that fact. Counsel referred to Kimweri vs. Republic [1968] EA62 where it was held that death may be proved by productlon of a post mortem report or evidence of a witness who knew the deceased and attended his burial or saw the body. Counsel suggested that the prosecution's failure to adduce a post mortem report left the possibility that the deceased's death did not result from unnatural or unlawful circumstances. Respondent's submissions Counsel for the respondent, in her submissions in reply, handled the grounds in the following order: grounds 1, 3 and 5 jointly, followed, respectively, by grounds 2 and 4 independently. Grounds 1, 3 and 5 With regard to the appellant's counsel's submission that the prosecution failed to adduce evidence linking the appellant to the murder of the deceased, counsel for the respondent submitted that the appellant was placed squarely at the scene of crime through the testimony of PW1, who knew the appellant prior to the fateful day, as the appellant was a friend to PW1's brother Alex and had previously visited the deceased's home. PW1 testified that he found the appellant and his accomplices, including one Alex, PW1's brother, at the deceased's home on the fateful day, and that they had conducted themselves in a suspicious manner by trying to prevent him from entering the deceased's house. PW1 testified that when he managed to enter the deceased's house, he found him tied up with a rope, with a cloth shoved down his mouth and throat. The grandfather had died shortly thereafter. Counsel for the respondent further submitted that the evidence of PW1 was credible and did not require corroboration, although the Court of Appeal had correctly found corroboration for it in the respective evidence of PW2 and PW3. Counsel contended that the Court of Appeal had rightly upheld the appellant's conviction as it was supported by the prosecution evidence. Ground 2 In reply to the appellant's submissions in respect of ground 2, counsel for the respondent submitted that there was no alibifor the Court of Appeal to consider as none had been raised by the appellant in the trial Court. Counsel contended that the appellant had not given an account of his whereabouts on the fateful day, and had only gave a general denial of the offence. As such, this case was distinguishable from other cases where the accused person adduces evidence showing that he/she was elsewhere at the material time. Counsel cited the case of Mushikoma Watete and 3 Others vs. Uganda, Supreme Couft Criminal Appeal No. 1O of 2000, where it was held that the trial Court is not obligated to consider an alibiwhich was not raised during the trial. With respect to the alleged appellant's police statement which, according to the contention of counsel for the appellant, could have been considered by the police to investigate the appellant's alleged alibi, counsel for the respondent submitted that since the appellant did not raise an alibi either during the pre-trial stage or the trial, there was no purpose to be served in considering the said alleged police statement. 6 Moreover, according to counsel for the respondent, the Court of Appeal correctly found that PW1's evidence had placed the appellant squarely and unequivocally at the scene of crime. Ground 4 Counsel for the respondent noted the appellant's counsel's contention that the cause of the deceased's death had not been proven in this case because of the prosecution's failure to tender a post mortem report into evidence. She, however, submitted that the prosecution had actually tendered a post mortem report in evidence and this was highlighted in the learned trial Judge's judgment where he stated that the deceased's post mortem report showed that the cause of the deceased's death was strangulation. In addition, counsel for the respondent hlghlighted that PW1, PW2 and PW3 had, in their respective testimonles, given evidence regarding the circumstances of the deceased's death stating that they had found him in the house tied with a rope with a cloth pushed into his mouth to suffocate him. Counsel contended that in accordance with the statement in this Court's decision in Kooky Sharma and Another vs. Uganda, Criminal Appeal No. 44 of 2OOO (unreported), the fact and cause of death can be established from the evidence of witnesses, even in the absence of medlcal evidence. Thus, in this case, the Couft of Appeal had correctly concluded basing on the prosecution evidence that the deceased's death was caused in an unlawful manner. Consideration of the Appeal We have carefully examined the record, as well as the submissions of counsel and the authorities cited. We are cognizant of this Court's duty when handling second appeals, like the present case, which is to assess whether the findings of the Court of Appeal are correct in light of the law and evidence, since correct findings indicate that the Court of Appeal properly carried out its task, as explained in this Court's decision in Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 1O of 1997 (unrepofted), which is to reappraise the evidence and make its own conclusion on all points arising in the appeal before it. 7 With that preliminary background, we shall proceed to a discussion of the grounds of appeal which we shall handle the grounds in the following order: grounds 3 and 5, followed by ground 4, and lastly grounds 1 and 2. Grounds 3 and 5 With regard to grounds 3 and 5, counsel for the appellant submltted that the case against the appellant was purely circumstantial as there was no direct evidence or eye witness account linking the appellant to the murder of the deceased. However, according to counsel for the appellant, the circumstantial evidence contained grave contradictions, falsehoods and wide gaps that should have led to its rejection. Counsel for the appellant, for instance, contended without substantiating that the evidence of PW1 Kamoga Newton and PW2 Bukenya Bonny was contradictory. Fufthermore, counsel submitted that PWl did not state in his evidence that the appellant was one of the people who had bound the deceased with a rope. Counsel submitted that the Court of Appeal had erred in believing the evidence of PW1 while overlooking the above inconsistencies. In reply, counsel for the respondent submltted that PWl gave credible evidence stating that the appellant who was known to PWl as friend to the witness's brother, Alex Wamala, was present at the scene of crime together with other accomplices. PW1 had testified that the appellant had blocked him from trying to access the house while his accomplices were inside with his grandfather, and that when he eventually gained access, he found his grandfather bound with a rope, with a cloth in his mouth. We observe that, in its judgment, the Court of Appeal considered the evidence of PW1 Kamoga Newton in detail before concluding that he gave a credible narration of the events that transpired at his deceased grandfather's home on the fateful day. PW1 testified that when he returned to his grandfather's home, he met his brother Alex Wamala with certain of his friends. Initially, Alex Wamala and some of his friends were inside the house while the appellant was at the entrance. PW1 testified that the appellant had tried to prevent him from entering the house and Alex Wamala had come 8 out of the house and tried to send him away from the compound but he refused to leave. Instead, he persisted and managed to get into the house where he found his grandfather lying in one of the rooms, In a poor health condition. PW1 stated that he found when his grandfather was bound with a rope and there was long cloth shoved through his grandfather's mouth and down hls throat. 9 We further observe that the learned trial Judge who saw PW1 testify found him a credlble witness possessing sufficient knowledge and intelligence despite his tender years. The learned trial Judge found that PW1 gave a true narration of the events at his grandfather's house on the fateful day. The learned trial Judge believed the unchallenged evidence of PW1 that the appellant was known to him before the fateful day, as a friend of his brother Alex Wamala. The learned trial Judge also believed PW1's evidence that the appellant occasionally visited the deceased's home and that the witness had seen him on several occasions. The Couft of Appeal agreed with the learned trial Judge's assessment of the credibility of PW1's evidence. Counsel for the appellant has, in his submisslons, asserted that the evidence of PW1 was not credible because the witness was not present to observe the nature of the attack inflicted by Alex Wamala and hls friends on the grandfather. We reject this assertion. We find nothing on record to support the assertion that PW1 was either dishonest or mistaken about his observations of the events on the fateful day. We note that the evidence given by PW1 was in the nature of circumstantial evidence which consists of evidence of circumstances from which an Inference that the accused person committed the offence for which he/she was charged can be drawn. In the present case, Alex Wamala and his accomplices including the appellant were seen at the deceased's home, they attempted to stop PW1 from accessing the deceased's house but when PW1 eventually did, he found his grandfather lying in one of the rooms, bound with a rope with a cloth shoved through his mouth and down his throat. Like the two lower Courts, we find that the circumstances support the inference that the men who were seen at the deceased's home on the fateful day had planned and prosecuted the assault which led to the deceased's death. We also agree with the Court of Appeal's conclusion that all the men who participated in the assault on the deceased were liable for his death under the doctrine of common intention as provided for under Section 20 of the Penal Code Act, Cap. 128. As explained In this Court's decision in PC Ismail Kisegerwa and Another vs. Uganda, Criminal Appeal No. 6 of 1978 (unreported), the doctrine of common intention is applicable if the facts show that a group of offenders shared with each other a common intention to pursue a specific unlawful purpose/ and in the prosecution of that unlawful purpose, an offence was committed. In the instant case, PWl's evidence supports the reasonable inference that one or all of the men he saw at the deceased's home on the fateful day, who included the appellant, had carried out the assault that led to the deceased's death. Under the doctrine of common intention, the appellant was liable for the death of the deceased and it is immaterial that he might not have physically assaulted the deceased. Therefore, we find that the Court of Appeal was right in finding that the appellant was a participant in the unlawful purpose that led to the murder of the deceased and was liable under the doctrine of common intention. We according find that grounds 3 and 5 must fail. Ground 4 10 In relation to ground 4 of the appeal, counsel for the appellant submitted that the Court of Appeal erred in confirming the appellant's conviction for offence of murder yet no post-mortem report was tendered in evidence by the prosecution to prove what was the cause of the deceased's death. Counsel for the appellant pointed out that the learned trial Judge had found that the deceased had died from strangulation but there was no evidentiary basis for this finding. Instead, counsel for the appellant suggested that there was a possibility that the deceased had died from a natural and lawful cause. In reply, counsel for the respondent submitted that the prosecution tendered the relevant post mortem report in evidence showing that the cause of the deceased's death was strangulation as observed in the learned trial Judge's judgment. In the alternative, counsel for the respondent, citing this Court's decision in Kooky Sharma vs. Uganda, Criminal Appeal No. 44 of 2000, submitted that cause of death can be established in the absence of a post moftem report through the evidence of witnesses who can give credible evidence on the cause of death. Counsel submltted that PW1, PW2 and PW3 gave evidence showing from which it can be inferred that the deceased's death was unlawful since he had likely been assaulted before he died. We agree with the view expressed in Kimwerivs. Republic [1968] 1 EA 452, cited by counsel for the appellant, as follows: "The production of a post mortem report is just one of many ways the death of a deceased person can be proved. The death of the deceased may also be proved through the oral evidence by a person who saw the body of the dead person or any other evidence which can compel the inference of death and is inconsistent with any reasonable theory ofthe deceased being alive," We are thus of the view that the fact of a deceased person having been unlawfully killed can be proved by non-medlcal evidence, as well, provided that such evidence can reasonably form the basis of an Inference that the deceased's death was unlawful. In the present case, the circumstances showing that the deceased was found lying in his house, bound with a rope and gagged with a cloth in his mouth supports the inference that the deceased was attacked and assaulted and that his death shortly thereafter was caused by the assault. We do not see how it can be reasonably argued, as counsel for the appellant does, that the deceased's death may have arisen out of natural or lawful causes. We also note that the learned trial Judge spoke, in his judgment, about the existence of post mortem report that confirmed that the deceased's death was caused by strangulation. However, we did not find a copy of the post mortem repod to which the learned trial Judge made reference. Nonetheless, we do not think that the failure to adduce a post mortem report in this case was fatal to the prosecution case, Moreover, the appellant did not challenge the learned trlal Judge's finding regarding the cause of the deceased's death in the Court of Appeal. It is now well-established that this Court will not entertain a matter that was not raised before the Court of Appeal. See: Bogere Asiimwe Moses and Another vs. Uganda, Supreme Court Criminal Appeal No. 39 of 2016 11 (unrepofted). Accordingly, we would additionally find that the appellant's argument regarding the cause of the deceased's death cannot be entertained as it was not raised in the Court of Appeal. We therefore uphold the concurrent finding of the two lower Courts that the deceased's death had resulted from unlawful acts. We find that ground 4 of the appeal also fails. Grounds l and 2 We so order. u Signed at Kampala this )s day of. hL^A/ ....2026. Mike J. Chibita 1,2 Counsel for the appellant, in his written submissions, did not make detailed arguments on ground 1. Further, during the hearing, counsel for the appellant, following advice from the Court, opted to abandon ground 1. However, we consider that, in any case, the resolution of ground 2 will address the question ralsed by ground 1 of whether the appellant participated in the murder of the deceased. With regard to ground 2, counsel for the appellant's contention is that there was no credlble prosecution evidence placing the appellant at the scene of the crime and thus his alibi was wrongly rejected by the two lower Courts. We reject this contention. We reiterate the findings arising from our analysis of grounds 3, 4 and 5 that PW1 gave credible evidence that the appellant was part of the group of men who assaulted the deceased at his home on the fateful day, and that the deceased died following the assault. As such, we would uphold the Court of Appeal's decision to reject the appellant's alibl. For the above reasons, we find that all the grounds of the appeal fail. We accordingly dismiss the appeal and uphold the decision of the Court of Appeal upholding the appellant's conviction and the sentence it imposed. Justice of the Supreme Court Elizabeth Musoke Justice of the Supreme Court Christopher Madrama Izama Justice of the preme Court Catherine Bamugemereire Justice of the Supreme Court / Monica K. Mugenyi Justice of the Supreme Court Delivered by the Registrar thls ... yo ..2026. Registrar, Supreme Court )r. ), - 13 (