Wampa Faziri and Others v Uganda (Criminal Appeal 54 of 2019) [2025] UGSC 30 (6 August 2025)

1 2 3 4 5 THE RTPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL No. 54 of2019 Coram: { Chlblta, Musoke, Madrama, Bamugemerelre, Mugenyl JJSC} (ARISING FROM CACA No.163 of 2O13) WAMPA FAZIRI TIBITA DAVID MAGANDA SAADI ISABIRYE PHILIP BATEGANYA FRED APPELLANTS VERSUS UGANDA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : ::::::::: RESPONDENT [An appeal o,rlslng Jrom the declslon oJ Jttstlces of Appeal, Cheborlon, Mu,sot(,., TtJ,halse, .IlA ln the Court Appeal Crlmlnal Appeal JVo. I63 of2013 dated 27d September 2019 at JtnJQ IUDGMENT OF THE COURT Introduction 1] This is a second appeal stemrning from the decision of the Court of Appeal, which partially upheld the appeal by quashing the sentence of life imprisonment imposed by the High Court and substituting it with 30 years' imprisonment. The appellants found fault with the Court of Appeal for not deducting the period the appellants spent on remand. 1 Background 2] The appellants were indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap L20 (which are now sections 171and172of the Penal Code Act, Cap 128). 3] It was alleged that on 5ft July 207'1., at approximately 4:00 am, the appellants lured Paul Mukisa, also known as Paul Kagame (now deceased), out of his house by making him believe his chicken were causing a disturbance. He reared poultry which was housed in a room annexed to the house, with no adjoining door. Once he stepped out, the assailants bolted the main door from the outside. They then set upon the deceased, hacked and left him for dead. During the assault, he repeatedly called out the names of his attackers. 4] Upon hearing the commotion, his wife raised an alarm and mentioned some names. The five appellants and others at large were allegedly part of a vigilante team code-named'Lala Salama'. They denied the charges and 2 presented alibi in their defences. They were tried, convicted, and sentenced to life imprisonment. 5l The Court of Appeal upheld the convictions but found the life sentences unduly harsh and reduced each sentence to 30 years' imprisonment. In this Court, appellants No. 1, No.2, and No.5 jointly filed grounds, challenging both their convictions and the sentences imposed. In tandem, appellants No. 3 and No. 4 joined in filing their grounds of appeal. Grounds of appeal for the lst,lnd and 5th were that; 1. The learned ]ustices of the Court of Appeal erred in law and fact when they convicted and sentenced the 1st, 2nd, and 5th appellants based on prosecution evidence that was'unsatisfactory and insufficient'(sic). 2. The learned Justices of Court of Appeal erred in law and fact when they convicted the appellants without proving cofiunon intention. 3. The learned justices of the Court of Appeal erred in Iaw and fact when they sentenced the lst, /nd, and 5th appellants to a sentence of 30 years without taking into account the period spent on remand thus rendering the sentence illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice. 3 Grounds of appeal for the 3'd and 4th appellants were thaU 1. The leamed justices of the Court of Appeal erred in law and fact when they failed to adequately re- evaluate all material evidence relating to the participation of the accused in the act of murder. 2. The leamed justices of the Court of Appeal erred in law and fact in failing to uphold the alibi set up by the 3'd and 4th appellants. Representation 6l At the hearing of this appeal, Mr. William Byansi, Deputy DPP appeared for the respondent while Mr. Emmanuel Muwonge appeared for the 1st, 2nd and 5th appellants on state brief while Mr. Asuman Basalirwa appeared on private brief for the 3,d and 4e appellants. 7] The lst,)nd,l,rtl qncl 4th appellants were present in court while the sth appellant appeared via zoom from Nakasongola Main Prison. All counsel proceeded by way of written submissions. 4 Submissions for the lst lnd 1nd 5th Appellants 8] Mr. Muwonge, counsel for the appellants, submitted that the conviction was based on insufficient and unreliable evidence, particularly lacking proof of a corrunon intention among the accused. He faulted the appellate justices for relying heavily on the identification evidence of PW2, who had limited opportunity to observe the assailants due to poor visibility at the time of the incident (between 4:00 and 5:00 a.m.) and had initially been uncooperative with the prosecution. 9l He challenged the reliance on PW1's voice identification of A1, arguing that her frightened state of mind during the attack undermined the reliability of such identification. He relied on Abdulla Bin Wendo & Anor v R [1953] 20 EACA to support these arguments. 10] Mr. Muwonge questioned the credibility of PW2 as a witness. He submitted that PW2 only testified after being committed to prison as a hostile witness, which, under section 754 of the Eaidence Acf, should have rendered his evidence unreliable. 5 11] Counsel invited this court to draw an adverse in-ference from the failure by the prosecution to produce the weapons found with the 7st,2nd, and 5th appellants, despite the post-mortem report showing deep, straight- cut wounds on the deceased. He pointed to A2's attendance at the deceased's burial as behaviour inconsistent with guilt. 12) Counsel for the appellants expressed concerns regarding the quality of representation provided to the accused, now appellants, during their trial in the High Court. He highlighted inadequate cross-examination of prosecution witnesses, which resulted in weakened defences. 13] Regarding the third ground of appeal, counsel argued that the 30-year sentence imposed by the Court of Appeal was illegal for failure to deduct the appellants' remand period from the final sentence, despite acknowledging that such time existed. Relying on Rwabugande Moses v Uganda SCCA No. 32 of 2O'1.4, Counsel urged this court 6 to exercise its discretion and set aside the illegal sentence and substitute it with a legal one. Submissions for the 3'd and 4th appellants 141 Hon. Asuman Basalirwa contended that the identification evidence relied on by the trial |udge to convict the 3rd and 4th appellants was unreliable due to difficult visibility and other circumstances at the scene. 15] He contended that it was implausible for PW2 to correctly identify five individuals running away from a crime scene while hidden in a coffee plantation, under moonlight, from a distance of five metres. He underscored the speed and panic associated with fleeing and trauma as circumstances that would have made proper observation impossible, and that PW2 could not have had the mental clarity or time to identify the accused as claimed. 161 Citing Abdallah Bin Wendo & Anor v R [1953], counsel submitted that in such difficult identification 7 conditions, corroborating evidence is required, yet none was provided against the 3',r and 4n appellants. 191 Counsel asked this court to disregard the testimony of PW2, who was a refractory witness and testified only after being coerced with imprisonment, which caused major contradictions in his account of what ocuurred. 8 17] Counsel faulted the 1't appellate court for failing to discern that no other evidence was adduced to implicate the 3'd and 4h appellants. He added that neither the dying declaration, grudges nor threats to the deceased were ever attributed to the 3.d and 4ft appellants by *y prosecution witnesses. 181 Hon. Basalirwa questioned the credibility of PW2, describing him as a suspicious and inconsistent witness. He criticized the 1st appellate court for failing to consider that only PW2, who identified the 3rd and 4th appellants, was a suspicious and inconsistent witness. 211 Counsel invited this court to find in favour of the 3rd and 4th appellants and to acquit them accordingly. I 20] Counsel was critical of the trial and first appellate courts for failure to assess and provide reasons for rejecting alibi evidence. He underscored that both appellants, 3 and 4, presented alibis, which the prosecution failed to disprove. Relying on Opolot fustine & Anor v Uganda SCCA No. 31 of 2014, he invited this court to find that the appellate court did not treat the respondent's evidence with the required rigour. He contended that had they done so they would have found that it was wanting and could not have been used to convict his clients, appellants No. 3 and No. 4. that courts are duty-bound to evaluate both prosecution and defence evidence fairly. Submissions for the Respondent 22]The learned Deputy DPP Mr. William Byansi, Counsel for the respondent, argued that the first appellate court properly considered the conditions under which PW1 and PW2 identified the appellants. 23] \zVhile acknowledging that the circumstances for identification were difficult, counsel emphasized that there were also favourable factors: - namely, the short distance between the witnesses and the assailants (3 metres for PW1 and 5 metres for PW2), and the fact that the appellants were long-time residents of the same village, known to the witnesses, and observed them for a reasonable duration. 24] The learned Deputy DPP dismissed as baseless, Mr. Muwonge's claim that it was dark between 4:00 a.m. and 5:00 a.m. as speculative and not supported by any evidence. He affirmed that the presence of moonlight was stipulated in the prosecution's case and was never challenged in cross-examination nor contradicted by the defence. He asserted that there was sufficient lighting to allow proper identification. 25] On the legal authorities cited by the appellants, including Abdallah Bin Wendo and Abdallah Nabulere (supra), learned counsel for the respondent distinguished 10 the set of facts and submitted that the identification evidence was admissible, though it ought to be treated with caution and should be supported by other confirming evidence. He submitted that PW1's visual identification was reinforced by her voice identification of A1, which she credibly explained during her testimony. 26] Counsel for the respondent submitted that the appellants misapplied section 154 of the Evidence Act. His view was that the section only outlines how a wibress's credibility may be challenged, either through cross-examination or by presenting evidence to show unreliability. 27] Counsel argued that although PW2 was cross- examined, no contradictions or weaknesses emerged that would weaken his testimony or support the defence case. He maintained that the trial judge properly addressed PWZ's initial lack of cooperation under section 42 of the Trial on Indictments Act, and that this did not justify discrediting his evidence. 11 Counsel concluded by urging the court to dismiss grounds one and two of the appeal. 29] He relied on Aharikundira Yustina v Uganda (SCCA No. 27 of 2015), to posit that the court can reduce a death penalty to 30 years of imprisonment for a first offender who had spent 3 years on remand. Thus, the Court of Appeal in the present case similarly estimated about 3 years on remand for A1, A2, and A3. 30] Counsel for the respondent invited this court to conclude that the 30-year sentence was fair, legal, and 12 In relation to sentencing, Mr. Byansi, representing the respondent, invited this court to find that the Justices of Appeal had appropriately factored in mitigating circumstances that the kial court had neglected, resulting in a reduction of the sentence from life imprisonment to a 3O-year term. He explained that it was not feasible to determine the precise duration of time spent on remand, as some appellants had been released on bail. effective from the date of conviction, and he urged the court to dismiss the third ground of appeal. 31]Replying to the 3.d and 4th appellants' submissions, Mr. Byansi was of the view that the Court of Appeal had correctly re-evaluated the identification evidence of PW1 and PW2. His submission was that the justices found the identification supported by other evidence, including the suspicious conduct of the appellants (as testified by PW3 and PW9), such as fleeing the village for ayear and hiding indoors until arrest. 32] In conclusion, counsel for the respondent urged this court to find that the Court of Appeal had determined that the prosecution evidence effectively rebutted the alibis. He argued that the appellate court correctly upheld the convictions and prayed that the appeal be dismissed. Determination of the Appeal 33lThis being a second appeal, we are mindful of our duty as a second appellate court in matters emanating 13 from the High Court as laid down in rule 30 (1) of the judicature (Supreme Court Rules) Directions, that: "where the Court of Appeal has reversed affirmed or varied a decision of the High Court acting in its original iurisdiction, the court may decide matters of law or mixed law and fact, but shall not have discretion to take additional evidence." The obligation of a secondary Appellate Court is inherently entwined with that of a first Appellate Court, despite their distinct roles. Father Narsensio Begumisa and Others v Eric Tibebaga, SCCA No. 17 of 2002 [2004] UGSC L8, articulated that: "It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions." 14 35] We concur that, following a conviction by a Judge, on first appeal, the appellant is entitled to the first appellate court's independent consideration and evaluation of the evidence in its entirety, along with its own judgment thereon. 37] \A/hen a question arises concerning which witness should be deemed credible over another, particularly when such a determination depends on manner and demeanour, the appellate court is guided by the impressions conveyed by the witnesses, as perceived by the Judge who observed them first-hand. Nonetheless, other factors beyond manner and demeanour may exist, indicating the credibility of a statement, which could justify the court in deviating from the findings of the trial 15 36] The first appellate court is obligated to re-evaluate the evidence presented at trial and to re-examine the materials considered by the trial judge. Consequently, the appellate Court must form its own conclusion, carefully weighing and deliberating the evidence, without disregarding the judgment under appeal. Judge. Even then, regarding questions of fact related to witness credibility, the appellate court ought to recognise that unlike the trial court, it did not have the opportunity to observe the witness, first hand. See Pandya v R. (1957) EA 336. 38] In an appeal such as the one before us, our duty as a second appellate court is not to interfere with a finding of fact except on exceptional grounds. When there is reason to consider exceptional circumstances, our duty is to determine whether the first appellate court properly applied the principles it was supposed to, and if it did not, it is our primary duty to establish the correct principles and then apply them. 39] In Bogere Charles v Uganda SCCA No. 10 of 1998, it was established that this Court, in a second appeal, can only re-examine evidence and overfurn the lower courts' findings if it is clear that the Court of Appeal overlooked its duty or if the findings are not supported by competent evidence. to 17 401 Upon meticulously reviewing the submissions of all counsel, the record of proceedings, and the |udgments from the lower courts, we found it imperative to rely on other authorities obtained as a result of conducting our own independent research. Consequently, in this Judgment, we have collectively addressed the submissions of counsel as they relate to a corrunon issue - the appellants' involvement in the offence. 40A] Grounds for the 1't,2"d, and 5th Appellants: 1. The learned |ustices of the Court of Appeal erred in law and fact when they convicted and sentenced the lstt 2nd, and 5ft appellants based on prosecution evidence that was unsatisfactory and insufficient. 2. The learned Justices of the Court of Appeal erred in law and fact when they convicted the appellants without establishing proof of common intention. 41] Grounds for the 3'd and 4th Appellants: 1. The learned Justices of the Court of Appeal erred in law and fact by failing to adequately re-evaluate all material evidence concerning the alleged participation of the 3rd and 4th appellants in the act of murder. 2. The learned Justices of the Court of Appeal erred in law and fact by not upholding the alibi defence presented by the !,rtt qnd 4ft appellants. 44] Recognizing our obligation to avoid re-evaluating evidence as a first appellate court might, we will, firstly, scrutinize the principles adopted by the first appellate court in its re-assessment of the trial court's evidence. This review is intended to establish whether the first appellate court operated within its jurisdiction or, alternatively, whether it neglected its duties or misapplied the law. 18 42] The appellants'principal argument is that the learned lustices of the Court of Appeal failed to properly re- evaluate the evidence on record, especially concerning two points: the identification evidence and the defence of alibi. 431 It is safe to begin our analysis with a discourse on the evidence related to identification, as this issue is central to all the appellants' grounds of appeal outlined above. 45] We bear in mind that in all criminal trials the onus lies on the respondent/state and never on the appellant to prove his/her guilt. lSee Okethi Okale & others v R 1965 EA 559, Sekitoleko v Uganda 1967 8A531 and Seuri v R 1972EA 4861. It is trite that an accused person should be convicted on the strength of the case as proved by prosecution but not on weakness of his defence. An appellant must not be convicted because he gave a weak and incoherent defence. A conviction should only result from the strength of the prosecution case. lSee: Israili Epuku s/o Achietu v R (1934) 1 EACA 1551. 46] Counsel for both appellants faulted two lower courts for relying on the identification evidence of PW1 and PW2, whose credibility they challenged on several grounds. Counsel for the l.'t and 2nd appellants contested the reliance placed by the lower courts on the testimony of PWL, who alleged that she identified the 2nd appellant (A2) by the aid of moonlight. Her testimony was that she recognized the 1't appellant (A1) by his distinctive voice. '19 47|PWZ testified that he heard an alarm and ran in the direction of the disturbance. Upon arrival, he hid in a coffee plantation and, from a position five metres from the scene and with the aid of moonlight, observed the appellants flee. 48] The Supreme Court in Bogere Moses &another v Uganda (supra) Iaid down principles to be followed when dealing with the evidence of visual identification by eyewitnesses. 49] The court held: - "The starting point is that a court ought to satisfy itself from the eaidence whether the conditions under u.thich the iilentification is claimed to haae been made were or were not dfficult, and warn itself of the possibility of mistaken identity. The court then shoulil proceed to eaaluate the eaidence cautiously so that it does not conaict or uphold a conaiction, unless it is satisfied that mistaken identity is ruled out. ln so doing, the court must consider the eaidence as a whole, namely the 20 faaoring correct those rendering it 501 It is a well-established principle that where a case against an accused predominantly relies on the accuracy of one or more identifications, which the defence contests, the judge is obliged to remind himself and the assessors of the necessity for caution prior to convicting the accused based on such identifications. This doctrine was further reinforced in Abudalla Nabulere & Another v Uganda, SCCA No. 1.978, reported in [1979\ }{CB 77 . "The reason for the special caution is that there is a possibility that a mistaken witness can be a conaincing one, and eaen anumber of suchutitnesses can all be mistaken. The ludge should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the uitness with the qccused. All these factors go to the quality of the iilentification eaidence. lf the quality is good the danger of mistaken identity is eaidence of identification dfficult." any factors together with 21 reduced but the poorer the quality the greater the danger.... when the quality is good, as for example, when the identification is made after a long period of obserztation or in satisfactory conilitions by a person who kneza the accused before, a Court can safely conuict eaen though there is no other eaidence to support the identification eaidence, provided the Court adequately u)arns itself of the special need for caution." 51] In his Judgment, from which the present appeal originates, the learned trial Judge made the following finding: "Both witnesses stated tlwt they knetu the accused people as fellott, residents toith ztlrom they haae liaed and knourn fronr childhood. secondly, that there uas moonlight. PW2 remained in the coffee plantation for L5 minutes and obseraed the accused people pass by him from a distance of fiue metres. PW7 satu A2 in the courtyard through her utindort, at a distance of 3 metres and there roas moonlight. Giaen the distance qs shown aboae, the 22 duration of tlrc incident, the ruoonlight and the fact that elteryone kneur the other, I am inclined to belieae that there was proper identifcation in the circunrstances." 521 Relatedly, in the course of evaluating the identification evidence, on appeal, the learned fustices of Appeal arrived at the following conclusions: " ...we haae carefully considered the eaidence of PWl. and PW2 afresh as a first appellate court, PW1 and PW2 kneu the truo appellants aery well because they uere residents of Bugongo aillage uhere the sqid tuo tuitnesses also resided. The time ruas between 4 am and 5 am, but there uas moonlight tohich enabled tlrc witnesses to see the ttuo appellants. According to PW1, the attack took some time, and she uas utithin earshot because she heard tulat the assailants utere saying, and she recognised the aoice ofthe 1't appellant... ln thnt connection 70e agree with the learned trial ludge that the 1't and 2,"1 appellants tltere correctly identifed at the scene of crime. We therefore uphold the fnding and conclusion of the trial ludge in respect of A1 and A2 tlwt they utere properly placed at the scene of crime by the ZJ prosecution. Regarding the 3,d, {ttt qnfl Stt, appellants, ue note that they were named by PW2 as being among the people he satl, running froru the scene of crime. PW2 identifed the three appellants uhile hiding in a coffee plantation, and as they utere running, betuteen 4 am and 5 am...houreaer, the identifcation of the 3,a, 4th and sth appellants needs to be treated utith caution. The eoidence reaeals that PW2 utas a single identifuing uitness of the JrLl, {ttt and Sth appellants. His identifcation of tlrc said appellants uas based solely on aisual identifcation. The circumstances u)ere such that the said uitness utas himself hiding in a cffie plantation, at night, and t'\rc said appellants uere running atuay. His eaidence uas that he uas about 5 metres autay froru the appellants, tuhich, in our opinion, is a short distance. Such eaidence howeuer, can giae rise to a miscarriage of justice, unless it is corroborated by some other independent eaidence, as stated in the case law discussed abore..." 531 The learned Justices of Appeal observed that the circumstances surrounding the identification of the assailants were difficult, especially considering that the incident transpired at night and the assailants were in 24 flight. While they acknowledged that PW2 might have known the assailants, the prevailing conditions rendered precise identification challenging. Nonetheless, the |ustices regarded PW1's identification evidence as credible and relied upon it to sustain the convictions of .A1 and 42. We agree with their decision regarding ,{1. 25 We, however, observe that discrepancies exist regarding the identification of /2by PW2. Concerning A2, Tibita David, PW1, stated that she observed him from a distance through her window. This assertion does not constitute definitive evidence that ,.A.2 was among the assailants, considering that PW2 was also approximately 5 metres away from the scene. It would be erroneous to assume that all individuals concealed within the vegetation could be suspected of being perpetrators. Moreover, the deceased identified three persons who assaulted him, of whom one was A1. His statement did not include ,A2 as one of the individuals who inflicted fatal injuries upon him. Based on the above evidence, we consider it unsafe to have convicted A2. 551 In Sabwe Abdu v Uganda, SCCA No. 19 of 2007, the Supreme Court interpreted voice evidence in a manner that we find instructive in this case. "There is eaidence on the record that the fiito girls were familiar with the appellant because he lioed about a quarter a mile from theirhome, they aluays passed by his home as they went to school and they used to hear him speak to other people, the appellant also used to come to their home zphere they would hear him speak to their father. We agree with the learned trial ludge's finiling that giaen these circumstances the girls would be able to identify the appellant by aoice eaen if they had neaer directly talkeil to him. To identifu a person's ooice, one does not necessarily haae to haae talked zaith that person." 56] In the present case, PW1 testified that she was previously familiar with A1, Wampa Fazir, who worked in their village, and confirmed her familiarity with his vocal sound. Following Sabwe (supra), it is established that voice identification is reliable where the witness is zl) familiar with the accused's voice, even in the absence of direct conversation, provided the witness has previously heard the accused speak. We therefore concur with the Court of Appeal's assessment of the evidence and find that PW1 correctly identified both ,{1. 57]ConcerningPW2, the ]ustices concluded that despite his possible familiarity with the assailants, the conditions at the time rendered reliable identification unlikely. We concur with this re-evaluation. 58] Evidence of identification through recognition at night must be solid enough to justify a conviction. {See Abdalla bin Wendo & Another v R, supra). This Court is therefore obligated to examine whether the lower courts properly re-evaluated if the circumstances of the case supported a valid identification. 59] \a/hen faced with analogous circumstances, this court observed that: "The appellant claimed that there was moonlight which helped him to recognize the appellant, but 8Z ,, "'fiomo Suluunt 1ua11addo aql Suntasqo quads fMd aug lo tfi8ual atp tuaa l,usaop nuaplaa aql ouln lo auacs aq+ uto$ 8uruunt suostad pasnfiu aqq paxuSoJat aaaq o1 pa&alla tMclanqm pant pua qsnq lr!fi Uq aqy q8nonll actald o7 sa qualclllns sam rySquoour aLfi Dqlallm ol so pu?tu tno u! +qnop pot 8u111oaatd suolqrpuoc aq1 'fry1yuapt ua4oys1ut lo n?uap aql uo saapsuarq uoltnuc yst{ 1ou pry paddy lo qmoS aW lo sac4sn[ pauraal aql pua a?pnl pttl aql 'Tuayadda aLfi $ulaga uolplauoc aql w{uoc pua ptauo) oq snon8uop il apout rua47 Suratasqo Tuads aq au4 atfi pua yogadda aqy paxuSocat vMcl iluolsrp aql puo as nd Tq8rluoou aql'8ur4n1 filapldutoc atam uogacltguap! pailo) puo ndotd nl alqomoaa{ suolllpuor aql Dqna pap$ sV 'nq aqq u1 8uruaaa Ptll gMcI pua ,Md 4*m uaaq poq yalladda aq1 'a8alpa atuas aUl uo atam fiaqq sa iMcl o1 umowl aam luailadda aqq papryJu? oqm suosnd pasncca aanq aql pua ylStluoout sam anql lotll acuaplaa aqt Swsrutddaat uaqm pap$ fi1na1t paddy lo uno) aqlsam # {tBUq moq pap$ lou sbm il 'qsnq nat Wflt pua patol a $pturu il18quooru sam slql 60] Following the reasoning Roria v Republic 11967fEA 583 at page 584 D-E, we agree that: uA conoiction resting entirely on identity inaariably causes a degree ofuneasiness and as Lord Gardner LC said in House of Lords there may be a case in uhich iilentity is in question and if any innocent people are conoicted today I should think that in nine cases out of ten -if they are as many as ten -it is on a question of identity, That danger is of course greater zohen the only eoiilence against the accused person is identification by one witness and although no one would suggest that a conaiction based on such identification should neaer be upheld, it is the duty of this Court to satisfy itself that in all circumstances it is safe to act on such iderutification." 61] We are cognizant of the difficulties encountered by the witnesses in this case when identifying the accused individuals between 4:00 am and 5:00 am, under the conditions they described as a moonlit night. In a 29 persuasive Tanzanian decision of Wambura Marwa Wambura v Republic, Cr Appeal No. 115 of 2019, a similar challenge was addressed in a manner with which we concur. "The pertinent question to be considered is whether the said moonlight ll)as so bright to the extent of eliminating possibilities of mistaken identity? The aflsu)er to this question is not farfetched. The record of appealbears no eoidence as far as the intensity of the said moonlight is concerned. lt is so doubtful whether indeed the prosecution witnesses utere able to properly iilentify the appellant qt the scene of crime... With respect, lae Are not conainced that in the absence of clear description of the intensity of the light illuminated from the moon it can certainly be said that the appellant was properly identified. It is common knowledge that bightness ,f moonlight is not stqndard light all the time. lt aaries according to the seasons and other factors. Therefore, in the circumstances where the intensity of the moon light at the scene of crime is not stated, 30 the possibilities of mistaken identity cannot be ruled out." 62] Respectfully, we are not convinced that, without a clear description of the lunar illumination's intensity, it can be definitively stated that the appellant was correctly identified. It is well known that the brightness of moonlight varies tfuoughout the night. 63] During the waxing gibbous phase, when more than half of the moon's face is illuminated and the illuminated portion is increasing, as well as during the full moon, the moon is visible for most of the night. However, during the waning gibbous phase, when more than half of the moon's face is still illuminated but the illuminated part is shrinking, the moon sets earlier in the morning. It is not enough to say there was moonlight. 641 ln Wambura (supra) is a clear indication that the regular changes of the moon imply that it can be visible whenever it rises above the horizon; however, its brightness depends on a specific lunar phase. A trial court 31 relying on such evidence must provide a detailed description of the emitted light to support clear judicial decisions. 65] Another compelling decision in this regard is a Kenyan on in the case of ]oseph Muchangi Nyaga & another v Republic [2013] KECA 88 (KLR), which proposes that: "Before acting ofl such eoidence, the tial court must make inquiries as to the presence and nqture of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to obserae the accused so as to be able to identify him subsequently." 66] We agree with the submissions of Counsel for Appellant No. 3, No. 4 and No.5 and hasten to add that the Court of Appeal of England in R v Turnbull & Ors (1976) 3 A.E.R 549 observed that: "... Recognition may be more reliable than iilentification of a stranger; bat euen when the witness is purporting to recognise someone whom he knozus, the jury should be reminded that mistakes a') in recognition of close relatiaes and friends are sometirnes fttAde." 67] In the present case, the attack occurred between 4:00 and 5:00 a.m. a time typically associated with limited visibility. Although PW2 claimed to have known the assailants beforehand, he observed the incident while concealed within a coffee plantation. This environment likely obstructed clear visibility due to the dense vegetation. PW2 did not provide any further details to the court regarding the intensity or clarity of the moonlight. These factors collectively undermined the reliability of PW2's identification. 68] From the preceding decisions, it can be inferred that when evaluating the evidentiary value of an eyewitness account in identification conducted under moonlight, courts are required to exercise prudence to avoid errors of mistaken identity. This necessitates a meticulous examination of the illumination conditions, including the intensity and adequacy of moonlight at the time of the alleged observation. Furthermore, there must be 33 documented evidence demonstrating that the moonlight was sufficiently bright or clear to facilitate accurate recognition by the witness. 691 Consequently, a trial judge is required to not only warn himself about relying on such a witness but also to meticulously scrutinize the evidence presented to identify any vulnerabilities that might compromise or invalidate the assertion that the witness adequately recognized the accused. 70] The evidence presented by the prosecution to substantiate the assertion that PW2 indeed observed the appellants at the pertinent time is, in our assessment, lacking in quality and devoid of reliability. The less credible this evidence is, the greater the likelihood of a wrongful conviction. The circumstances under which the witness observed the appellants were not conducive to definitively excluding the possibility of mistaken identity. 34 71]We are inclined to agree with the learned Justices of Appeal in dismissingPW2's alleged identification of the assailants. His testimony falls short of the standard necessary for cases that depend purely on eyewitness identification. 72)Tltis Court, therefore, considers it imprudent to rely solely on the visual identification of PW2 unless corroborated by additional evidence. We shall revisit this matter after re-examining the remaining evidence concerning whether the third to fifth appellants were involved in the deceased's homicide. 731 The learned appellate Justices concluded that additional evidence con-firmed the identities of appellants No. 3 through 5. In evaluating their alibi defences, they observed that the 4th appellant's claim of being a victim of theft was only presented during re-examination and was not mentioned earlier. The Justices considered this an afterthought, which undermined the credibility of his alibi. Moreover, they found the 3rd appellant's alibi unpersuasive because his wife's testimony only covered 35 his arrest and did not specify his location at the time of the crime. 74] \A/hen the 5th appellant testified that he was at home during the incident but failed to provide any corroborating evidence or witnesses to back his claim, the learned Justices did not believe him, regardless. 75]lThe learned |ustices wrongly decided that the testimonies of PW3 and PW9 were credible and concluded that their evidence effectively placed the all appellants at the scene of the crime and discredited their defences of alibi. 761\Ne can safely conclude that the appellate )ustices did not adequately review the burden of proof related to the defence of alibi. It is trite that at all times, the prosecution bears the duty to refute any alibis set up and to prove the appellants' presence at the crime scene, beyond reasonable doubt. Save for ,A'1, the prosecution did not discharge this duty against all the other appellants. They 36 based their decision on the denials by appellants No. 2,3,4 and 5, rather than what evidence the prosecution had against them. The trial Judge had overlooked this critical issue. Rather than find that the trial Judge had not correctly examined this question, the appellate ]ustices exacerbated the error by maintaining reversal of the prosecutorial burden. 77lThe other pieces of evidence we had to re-appraise so as to make a sound conclusion on whether the Justices of Appeal rightly evaluated the material before them, were the testimonies of witnesses at trial. We re-examined the evidence of PW2, PW3, PW4, PW5, PW6, and PW9. 78] In his initial testimony, PW2 said he was asleep between4: 00 am - 5:00 a.m. when he heard an alarm and rushed to the scene, where he found ]uma and the critically injured deceased. As he approached, he heard footsteps, saw people at a distance; including Robert with a stick and moved aside, unable to identify most of them due to their number. 37 79] Upon being declared a refractory witness and committed to prisory PW2 returned with a revised version of what transpired at the scene. After he was threatened with imprisonment, he stated that he saw appellant No. 2 rushing from the scene. This turn of events ought to have caused concerns as to the credibility of this witness. 8U PW3 (D/AEI. Wor-Okongo) was one of the investigating officers who arrested A1 on the day of the murder and recorded statements from PW1 and PW2, who identified several suspects then on the run. 82] Apparenlly, PW4 (Asuman Musenero) was present when the deceased named his attackers: ,A1 (Fazir 38 80] Given the discrepancies in PW2's evidence and the circumstances under which his revisionist testimony was made, his evidence must be treated with caution, and Iittle weight should be attached to it. We already disregarded his alleged eyewitness account of what occurred. Wampa), Robert Kowa, and Ronald Kwesige before dying, and he relayed these names to the police. 83] PWs (Maido Nasifu)was aware of the prior conllict between A1 and the deceased, including a previous mob attempt. On the night of the incident, he found the deceased bleeding and the widow locked inside heard the deceased naming Fazir, Robert, and Ronald as his attackers. 841 PW6 (D/SGT Onder Steven) confirmed the existence of a police file in which A1 was accused of inciting violence against the deceased. .A1, in turn, made theft allegations against the deceased. The deceased had reported threats to his witnesses by ,A,1. 851 PW9 (D/SGT Aggrey Wafula) was the arresting officer who apprehended A2-A5 9-12 months after the murder based on witness statements and information from the case file. ,)0 86] To have proven that they were part of a criminal enterprise, the prosecution ought to have found evidence of common intention against the appellants. The concept of common intentiory as it relates to criminal law, means that when two or more individuals agree to pursue an unlawful purpose, and in the course of that pursuit, an offense is committed that was a likely outcome, each individual is held responsible for that offense. This principle is often invoked when it's difficult to pinpoint which individual directly committed the act, but their shared intention and participation in the unlawful purpose are clear. The appeals of R v Okule & Others [1941] 8 305 EACA and Rwabugande v Uganda 2017 UGSC 8 stand for the proposition that ... It is irreleaant ulrcther or not it uas the appellant ruho actually inflicted the fatal blorus. Tlrc appellant would still be liable under the principle of common intention. Common intention is set out in section 20 of the Penal Code Act. (Cap 120) which stipulates as follows: "lMen fruo or more persons form a common intention to prosecute nn unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence 40 is committed of such a nature tlat its comnission was a probable consequence of the prosecution of that purpose, each of them is deemed to lwae committed the offence." 87] Considering the foregoing pieces of evidence, we are satisfied that common intention was not proved and substantial doubts persist regarding the involvement of the 2nd, 3rd, 4th, and 5th appellants. None of the prosecution witnesses directly linked these appellants to the commission of offence. Their arrests were founded solely on the testimony of PW2, whose credibility has already been questioned, cast in doubt, and discarded. Without any independent or corroborative evidence linking the 2nd, 3rd to 5th appellants, the case against them does not meet the necessary evidentiary standard for a conviction. 88] As previously observed, the learned Justices of Appeal misconstrued the evidence. They therefore misapplied the law surrounding the defences of alibi by erroneously reversing the burden of proof to the appellants, arriving at an incorrect conclusion of guilt. It is trite that in criminal cases, the burden of proof is 41 beyond a reasonable doubt. Should there be a doubt, then that doubt ought to be resolved in favour of the accused. 891 Considering that no evidence linked the 2nd, 3rd,4th, and 5th appellants to the crime, we can safely conclude that significant doubts arise in the evidence and ought to be resolved in their favor. Had the learned Justices of Appeal heeded the necessity to re-evaluate the evidence and had they properly re-evaluated risks associated with relying on eyewitness testimony without meeting the established standards, they would have concluded that the prosecution failed to present evidence against the 2nd through Sth appellants and would have acquitted them accordingly. As a result, the appeals relating to the 2nd, 3rd, 4th, and 5th appellants in Grounds No. 1 and No. 2 succeed. 90] We now review the other corroborating evidence pertaining to the 1st appellant. It has been previously established that PW1 identified the 1st appellant. She was acquainted with the conflict between A1 and her late husband. Her testimony indicated that her late husband 42 reported ,A'1 to Nambale Police Station for threatening violence, and the matter was subsequently referred to Namungalwe Court, though no further proceedings ensued. She further testified that ,A.1 had issued threats against the deceased prior to his demise, which prompted the deceased to involve law enforcement authorities. A1 was a resident of the village. She was familiar with his voice prior to the fatal night. 911 PW5, Maido Nasifu, corroborated this by stating that A1 and the deceased had a strained relationship, recalling an incident where A1 raised a false alarm accusing the deceased of theft. The alarm nearly led to the lynching of the deceased by the public. 92lPW6, Detective Sergeant Onder Steven, confirmed the existence of a dispute between ,.A,1 and the deceased, for inciting violence. He affirmed that A1 had accused the deceased of theft and that he incited public anger, was charged and was later released on police bond. PW6 testified that on 4th July 2011, the deceased reported ,A1 43 for issuing threats against him and his witnesses. The following day, the deceased was found murdered. 931 Another piece of evidence involves prior threats. The significance of evidence related to previous threats was examined in Waihi & another v Uganda 119681EA 278, page 280, where the East African Court of Appeal remarked: "Eaidence of a prior threat or of an announced intention to kill is always admissible eaidence against a person accused ofmurder, but its probatioe aalue uaries greatly and may be aery small or eaefl amouflt to nothing. Regard must be had to the m&nner in which a threat fs uttered, ushether it is spoken bitterly or impulsiaely in sudden anger or jokingly and reason for the threat, if giaen, and the length of time betuteen the threat and the killing are also material..." 94] In Godfrey Tinkamanyire & another v Uganda SCCA No. 5 of 1988 the court observed that while motive was irrelevant in a criminal prosecution, it was always 44 useful since a person in his normal faculties would not commit a crime without a reason or motive. The existence of a motive makes it more likely than not, that an accused person did in fact commit the offence charged. We find that A1 was identified correctly and lawfully convicted. 95] We find that the evidence of a longstanding grudge between the 1.t appellant and the deceased, coupled with the mutual suspicion that existed between the two, fanned the fuel of malice, motive and eventually, murder. Notably, however, the failure by organs of government to resolve the dispute between the deceased and ,A.1, enamoured the l..t appellant to the point of taking the law into his own hands. It was despicable for A1 to take the life of another on suspicion of being a habitual thief, however exasperated he was with the deceased's larcenous Iife and the failure of law enforcement to act. 96] Had the police effectively investigated allegations of theft and of threatening violence which were conversely 45 reported by A1 and the deceased, the rule of law would have been restored on Kawete village. 97lWe will now address ourselves to the second ground on sentencing raised by counsel for the first appellant. The learned justices of the Court of Appeal erred in law and fact when they sentenced the 1st, 2nd and Sth appellants to a sentence of 30 years without taking into account the period spent on remand thus rendering the sentence illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of justice. 97] This ground is now limited to only the 1st Appellant. Article 23(8) of the Constitution requires the court, when passing a sentence, to consider the period a convict spent in lawful custody prior to completing his trial. Failure to do so makes the sentence illegal. 981 It was held by this court in Rwabugande Moses vs Uganda, SCCA No. 25 of 201.4, that: - " A sentence arriaed qt Toithout taking into consideratiotr the period spent on 46 remand is illegal for failure to comply with a mandatory c o ns tituti o nal pr oa isi o n. " 99] It was further held that in imposing a sentence of imprisonment against the convict, the period spent on remand must be deducted arithmetically. 100] In Kiwalabye Bernard v Uganda SCCA N0.143 of 2001 this court noted that an appellate court will only interfere with the sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in the circumstances of the case. 101] In this case, the learned Justices of Appeal while passing their sentence stated that: - "Thus after consideration of all the mitigating and aggratrating factors as stated qboae, as well as being consciotrs of tlrc need for consistency in the sentencing regime, uue are of thc opinion tlut q sentence of 30 years' imprisonment uould be fair nnd appropiate in the circumstances of this case. 47 "Regarding the period, the appellants spent on remand, the record reoeals that the appellants uere arrested on oaious dates, that is, on 05/07/201.1 regarding the 1,t appellant; 07/06201.2 regarding tht zud, Jrd 6nfl $th appellants; and 08/062012 regarding the 4th appellant. The record also shotos tlut as at 10th September 2013 when the trial commenced, the )nd Jrd, {th 6nfl $ttr appellants tlere on bail. It is not discernible from the record before this court as to the exact period the appellants spent on reruand. This court therefore fnds it impracticable to deduct tlrc said period from the sentence, since tlrc remqnd period is unknown..." 102) The Justices reduced the sentence of Life imprisonment to a sentence of 30 years' imprisonment stating that it was impracticable to deduct the remand period due to a lack of precise records. 103] We respectfully disagree with the court's conclusion although we are abundantly aware that an appropriate sentence is a matter for the discretion of the sentencing judge. Indeed, each case presents its own facts upon which a judge exercises his discretion. It is the practice 48 that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless the court is satisfied that the sentence imposed by the trial judge was manifestly so excessive so as to amount to an injustice. See Ssekitoleko Yudah and others v Uganda, SCCA No. 33 of 2O1,4 However, Article 28(3) of the Constitution guarantees every accused person the right to have the time spent in pretrial detention deducted from their sentence. We therefore find that the sentence imposed was illegal. 104] The illegal sentence is herewith set aside. We shall now take our prerogative under section 11 of the Judicature Act to sentence the 1.t Appellant afresh. Section 11 of the Judicature Act grants us the same jurisdiction as the court that decided in the matter or passed the sentence. Essentially, we are not limited to simply reviewing the lower court's decision; we are at liberty to any action that the lower court would have taken, including making new findings of fact, ordering 49 new trials, or even reversing the original decision entirely. 105] We therefore find it necessary to pass a fresh sentence in the light of the circumstances. We have considered similar appeals Kamya v Uganda [2018] UGSC L2 in which a sentence of 30 years' imprisonment was reduced to 18 years' imprisonment, as was also similarly considered in Rwabugande (supra). 106] Given the circumstances of this case we consider a sentence 22 years imprisonment appropriate. It was erroneous of the appellate court to not consider the time the 1't appellant spent on remand. With some effort, this time was discernible. 107] The record demonstrates that the 1.st appellant was arrested on 5s luly 201,L. He was sentenced on 12th November 2013. In the absence of precise bail dates, we are inclined to rely on the undisputed arrest date. 50 108] Accordingly, we deduch 2 years,4 months, and 7 days from the sentence of the 1't appellant. The L't appellant shall now serve 19 years, 7 months, and 23 days. Conclusion 109] As a result, this appeal succeeds in favour of Appellants No.2, A3, A4, and A5. 1. The convictions of the 2"d, !,rd, {th and 5th appellants are quashed. 2. T\e sentences of the 2nd, Jrd, lth, and Sth appellants are set aside, and they are released forthwith unless held on other lawful charges. 3. The 1't appellant's conviction is upheld. 4. The 1.t appellant is now sentenced to 19 years, T months and 23 days' imprisonment to run from the date of conviction. We so order. Dated at Kampala this... hh"r.t....fu.!g. Lgg 2025 HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT 51 HON. LADY JUSTICE ELIZABETH MUSOKE JUSTICE OF THE SUPREME COURT HON.JUSTICE CHRISTOPHER MADRAMA JUSTICE OF THE SUPREME COURT HON, LADY JUSTICE CATHERINE BAMUGEMEREIRE JUSTICE OF THE SUPREME COURT HON. LADY JUSTICE MONICA MUGENYI JUSTICE OF THE SUPREME COURT i-.. I