Ayikanying Charles v Uganda (Criminal Appeal No. 15 of 2016) [2026] UGSC 46 (4 September 2026)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. OO15 OT 2016 CORAM: {Musoke; Musota; Madrama; Bamugemeretre; Mugen5rt; JJSC} AYIKANYING CHARLES :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS UGANDA :3::!::::::::::::::::::::::::::::::::i::::::::::::::::::::r::::::::::::::::: RTSPONDENT [An Appeal from the decision of [Kasule, Obura and Bgabakama, JJA] in Court of Appeol Ciminal Appeal No. O8 of2012 before doted Vn June, 20161 ilIDSEf,TOTTUECOTJBT Introduction 1]. This is a second appeal arising from the decision of the Court of Appeal, which upheld the appellant's conviction for the offence of murder contrary to section 171 and 172 of the Penal Code and his sentence of 25 years' imprisonment. Preliminary Matters of Concern in this Appeal 2]. Before addressing the merits of this appeal, the Court must record its disapproval of the conduct of counsel conceming the submission filing process. Directions were properly issued, mandating the appellant to submit their atguments by 26th November 2025 and the respondent by 10th December 2025. However, neither party adhered to the stipulated deadlines. 31. It was only after repeated interventions by the Registrar, conveyed through formal written communications and successive telephone engagements, that counsel eventually placed their submissions on record, outside the timelines prescribed by this Court. L 4]. Nonetheless, in fidelity to the overarching duty to secure substantive justice, the Court has elected to consider the belatedly filed submissions, together with the proceedings and judgments emanating from the courts below. 5]. This Cour! in utmost terms, condemns such conduct. Compliance with directions of the Court is not a matter of convenience but a professional obligation. Failure to adhere to timelines undermines the orderly administration of justice and imposes unnecessary burdens on the Court. Counsel are reminded that disregard of Court orders will not be tolerated, and future lapses may athact appropriate sanctions Background 6]. The record discloses that the appellant and his late father were embroiled in a protracted land dispute, which had been conclusively resolved by a court decision in favour of the deceased. On 15th December 2008, court brokers executed that judgment by demolishing the appellant's house. Later that afternoon, at about4:00 p.m., the appellan! in concert with relatives of the deceased, violently set upon him. The deceased fled into a cassava garden behind his home, but the assailants pursued and continued the assault with clubs, arrows, and a knife, inflicting fatal injuries. 7]. The attackers abandoned the body in the garden and absconded from the village. The incident was reported to the LC I Chairperson, who inspected the scene and notified the police. The appellant was subsequently apprehended at his brother-inlaw's residence in Jupakeolu and charged with murder. 2 8]. The High Court convicted him and imposed a sentence of twenty-five years' imprisonment. His appeal to the Court of Appeal against both conviction and sentence was dismissed. Dissatisfied, he now appeals to this Court on the grounds set out in his memorandum. 91. Grounds of Appeal The Learneil lustice of the Court of Appeal eteil in lazo zohen they uphelil the appellant's conoiction based on the iloctine of conmon intention, zohich iloctine iliil not apply to the appellant. The leameil lustices of Appeal etred in lazo zohen they confirmeil the sentence of the appellant (25 yearc' impisonment) without consideing anil deilucting the peioil of 2 years, 8 months and 9 days he spent on pretial remanil. 101. The appellant prays that this Court allows the appeal, quashes his conviction, sets aside the sentence imposed by the Trial Court, and orders his release. Representation Submissions for the appellant 12l.On Ground No. 1; Learned counsel for the appellant contended that, on the evidence available, both PW2 and PW3 unequivocally stated that the deceased was killed by one Orama, and not by the appellant. Counsel argued that there was no indication whatsoever that the appellant participated in the killing. It was therefore erroneous, in his view, for the Court of Appeal to affirm the appellant's conviction and sentence on the basis of common intention, when the record clearly demonstrated that the appellant did not take part in the commission of the offence. 3 11]. At the hearing of the appeal, Joseph Kyomuhendo, a Chief State Attomey, appeared on behalf of the respondent, while counsel Andrew Ssebugwawo represented the appellant on a state brief. l3l.Counsel argued that the evidence the Justices of Appeal relied on was inconsistent. He highlighted PW3's testimony that the deceased was attacked on his way to the Local Council by Odubi and a club-wielding Anyika. Anyika struck first. Orama stabbed him in the neck and ribs, with an arrow which was eventually found lobbed near his ear. In contrast, PW2 stated that her husband was attacked by his three children namely, Odubi, Ayikanying, and Orama. The trio beat and stabbed him, with Orama being the first to attack and others joining in. The counsel stressed that although the Court of Appeal noted these contradictions, it incorrectly concluded they did not affect the core issues of the case. 14l.ln advancing his argument, learned counsel drew attention to Kaggwa Ssali Emmanuel v Uganda, Supreme Court Criminal Appeal No. 8 of 2007, wherein this Court acknowledged that contradictions in witness testimony may assume a material and significant character, thereby undermining both credibility and reliability. He maintained that the inconsistencies between PW2 and PW3 in the present case were of such magnitude, and that the Court of Appeal erred ir treating them as inconsequential. Counsel further submitted that the appellant had spent two years, eight months, and nine days on remand prior to trial, a period which was not reflected either in the sentence of twenty-five years' imprisonment imposed by the trial judge or in the affirmation of that sentence by the Court of Appeal. He contended that this omission rendered the sentence unlawful and unconstitutional. 15]. To reinforce this submission, counsel invoked Kyalimpa Edward v Uganda, Supreme Court Criminal Appeal No. 10 of 1995, which afftrmed that 4 appellate intervention in sentencing is justified where illegality is demonstrated. He further relied on Article 23(8) of the Constitution, which provides that any period spent in lawful custody prior to conviction must be taken into account when sentence is imposed. Counsel argued that the failure to deduct the remand period constituted a violation of this constitutional safeguard, thereby vitiating the sentence. He accordingly prayed that the appeal be allowed, the conviction quashed, and the sentence set aside; or, in the alternative, that the sentence be substituted with a lighter term consistent with the law. Submissions for the Respondent 16]. Counsel for the respondent raised a preliminary objection, submitting that the appellant has improperly introduced new grounds of appeal before this Court which were never canvassed in the Court of Appeal. The sole ground of appeal at the Court of Appeal was thaf "The learned lustices erred in latu u,hen they upluld the conuiction of the appellant based on etidence that did not proz;e his participation." 17). Counsel argued that the present grievance challenging the application of the doctrine of common intention was not raised below and is therefore misconceived. He relied on Ssekaija Fred v Uganda, Criminal Appeal No. 78 of 2020, where this Court held that grounds not raised in the Court of Appeal cannot properly be entertained at the Supreme Court. He prayed that Grourd No. 1 be stuck out. 181. Without prejudice to the preliminary objection, counsel submitted that the learned lustices of Appeal properly discharged their duty of re-evaluating the evidence and correctly applied the doctrine of common intention under section 20 of the Penal Code Act, Cap. L28. He argued that the appellantwas squarely placed 5 at the scene of crime and implicated as an active participant in the murder of the deceased. 191 Counsel submitted that PW2, the widow of the deceased and mother of the appellant, testified that her husband was killed by his three children; Odubi, Ayikanying (the appellant), and Oroma. She stated that she saw the appellant stab the deceased on the ribs while his co-accused struck other fatal blows. Counsel submitted that PW3 corroborated PW2's account, testifying that she saw the appellant armed with a club and arrow, and that he was the first to strike the deceased before Oroma stabbed him with a knife. 20). Counsel argued that under section 20 of the Penal Code Act, once it is established that several persons acted together in pursuit of a common unlawful purpose, each is liable for the acts of the others done in furtherance of that purpose. It is immaterial who struck the first blow or who delivered the fatal stab; what matters is that the appellant was part of the group that jointly assaulted the deceased with deadly weapons. 211 Counsel further submitted that corroboration was found in the conduct of the appellant fleeing the village immediately after the murder and was auested ten days later, conduct which, as held in George Wilson Ssimbwa v Uganda, Criminal Appeal No. 377 ol1995, is incompatible with innocence. 221. Counsel acknowledged a slight inconsistency between PW2 and PW3 as to who initiated the assault. He submitted that this was a minor contradiction. He argued that such discrepancies do not go to the root of the case and cannot negate the overwhelming evidence of joint participation. 6 231. Counsel stressed that the learned Justices of Appeal took a holistic approach, re-evaluating the evidence and correctly concluded that the appellant's presence/ active participation, and conduct demonstrated a shared common intention to kill the deceased. The repeated blows, use of deadly weapons, and coordinated assault all pointed to a concerted plan to end the deceased's life. 24). Regarding Ground No. 2, counsel submitted that the sentence of 25 years' imprisonment imposed on 16 J anuary 20!2was lawful. At the time, the sentencing regime required the trial judge to consider the period spent on remand, and the record shows that the leamed judge expressly did so. Counsel argued that the Court of Appeal properly re-evaluated the sentence and found no illegality. 251. He further submitted that the appellant's reliance on Rwabugande Moses v Uganda SCCA No. 25 of 2014, was misplaced, as that decision was delivered after the appellant's conviction and does not apply retrospectively. Counsel cited Abelle Asuman v Uganda SCCA No. 66 of 2016 to reinforce the principle that precedents cannot be applied retroactively to unsettle sentences lawfully imposed under the regime then in force. Counsel prayed that the appeal be dismissed and the appellant's conviction and sentence be upheld. Determination of the Appeal 261. This being a second appeal, we are mindful of our duty as a second appellate court in matters emanating from the High Court as laid down ia rule 30 (1) of the ]udicature (Supreme Court Rules) Directions, that: "Wrcre the Court of Appeal hns rezersed, afimted or onried a decision of the High Court acting in its oiginal jurisdiction, the court nny decide matters of lazo or mixed lnzo and fact, but shall not hazte discretion to take additional eoidence." 7 271. 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 overturn 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. In Areet Sam v Uganda SCCA No. 20 of 2005 the Supreme Court made the following observation: - "It is trite laut that as a seconil appellate coutt, we are not expected to re- eaaluate the eaiilence or questiotr the concurrmt findings o/ facts by the High Court and the Court of Appeal. Howeaer, zohere it is shoutn that they did not eaaluate or rc-eoaluate the eoiclence or zohere they are proaeil manifestly urong on findings of fact, this Court is obliged to do so anil ensure that justice is properly anil truly serued. 28). 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. Preliminary objection 29). At the outset, learned counsel for the respondent raised a preliminary objection, contending that the appellant improperly introduced new grounds of appeal before this Court which were never canvassed in the Court of Appeal. 30]. It is settled law that the jurisdiction of this Court on a second appeal is appellate and is confined to points of law arising from the decision of the Court of Appeal. Consequently, a party is not permitted, as of right, to raise before the Supreme Court a fresh ground which was neither argued before nor pronounced upon by the Court of Appeal. To do so would be to invite this Court to exercise original, rather than appellate, jurisdiction. 8 311. The Supreme Court has consistently reiterated this principle. In Alex Dinasoni alias Chandiru v Uganda (Criminal Appeal No.46 of 2018) 120261 UGSC 4 (10 February 2026), this Court declined to entertain a complaint regarding the alleged irregularity of plea-taking which had not been raised before the Court of Appeal, observing that, save in exceptional circumstances involving an apparent illegality or a miscarriage of justice, a second appellate court will not determine issues which did not form part of the proceedings before the intermediate appellate court. 321. A ground which was not raised before the Court of Appeal and thus not considered by the court is not maintainable before the Supreme Court. It would be erroneous to criticize the learned Justices of Appeal as having erred when the complaint was not raised before them for consideration. [See: Ssenkungu Akim v Uganda, Criminal Appeal No.l5l of 2023(SC), Sentongo Patrick v Uganda (Criminal Appeal No. 69 of 2021) 120251 UGSC 41 (15 September 2025) and Ssekajja Fred v Uganda (supra)1. 331. In essence, the appellant's grievance regarding the doctrine of common intention is misconceived. Accordingly, Ground No. 1 is incompetent and liable to be struck out. Nonetheless, in the interest ofjustice, we shall address the substance of the arguments. 9 34]. The appellant contends that the Court of Appeal erred in affirming his conviction on the basis of common intention when the evidence did not prove his participation. Counsel for the respondent submitted that the learned Justices properly re-evaluated the evidence and correctly applied the doctrine of common intention under section 20 of the Penal Code Act, Cap. 128. 35]. We have carefully reviewed the record. PW2 (Ana Acaya), the widow of the deceased and step-mother of the appellant, testified that she saw the appellant stab the deceased on the dbs while his co-accused struck other fatal blows. PW3 (Piner Pamungo Gertrude), a niece to the appellant corroborated this account, stating that the appellant struck the deceased with a club before Oroma stabbed him. Both witnesses consistently placed the appellant at the scene and implicated him in the fatal attack. 36]. The principle of common intention 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. Common intention is set out in section 20 of the Penal Code Act, cap 128. It stipulates as follows: "zt'hen ttuo or more persons forn a common intention to prosecute fln w aufi purpose in conjunctiott tttitlt one utother, utd in the proseurtion of that purpose an offence is committed of stLch a nature that its commission ruas n probable consequence of tle proseurtion of that purpose, each of them is deemed to lnt e committed tla offence." 37). This Court has consistently held that once it is established that several persons acted together in pursuit of a common unlawful purpose, each is liable for the acts of the others done in furtherance of that purpose. [See R v Okule & Others [1941] 8 305 EACA and Rwabugande v Uganda (supra). It is immaterial who delivered the fatal blow; liability attaches to all participants in the joint enterprise. 381 In No. 441 P.C Ismail Kisegerwa & Anor v Uganda [1978] UGSC 6 (19 October 1978) this court held that for the doctrine of common intention to apply, it had to be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose, and in the prosecution of that unlawful purpose an offence was committed. 10 39]. In Charles Komwiswa v Uganda [1979] HCB 85, approved in Sekitoleko & 2 Ors v Uganda (Criminal Appeal 33 of 20741 [2014 UGSC 76 (5 April2DlT) stands for the proposition that "Wrcre sezteral persons are prooed to lmue combined togetlrr for tle same illegal purposes, any act done by one of them in prrsuance of tlu oiginal concrete plan and zoith reference to conlmon object in the contemplntion of lau, is an act of the ruhole, eaclt pnrty is tlu agent of the others in carrying out tle object of tlrc conspiracy he renders himself a pincipal ffinder." 401. In R v Tibulayenka s/o Kirya and Others (1943) 10 EACA 51, it was observed that common intention may be inferred from an accused person's presence at the scene, his or her conduct and the failure to dissociate from the crime. Applying those principles to the present appeal, the evidence does more than merely place the appellant at the locus in quo. He was positively identified by two prosecution witnesses (PW2 and PW3) as one of the persons who actively participated in the attack, and their concurrent testimony was accepted by the trial court and duly affirmed by the Court of Appeal upon evaluation. 411. In his defence, the appellant admitted encountering the deceased on the material day and stated that he threw a stone which struck the deceased on the neck, causing him to fall. He then fled the scene, leaving the deceased struggling to rise. 421. Moreover, the appellant's subsequent disappearance from the village and his arrest ten days after the murder further corroborate his participation in the offence. As recognised in George Wilson Ssimbwa v Uganda, (supra) unexplained flight is conduct incompatible with innocence and may properly be treated as confirmatory of guilt. We are satisfied that the appellant's proven participation in the joint enterprise rendered him equally liable for all acts TL committed in furtherance of their comrnon intention. The argument advanced that his liability under common intention was not established is accordingly rejected. 431. We also find that the inconsistencies between the testimonies of PW2 and PW3 are minor and do not go to the root of the case. As the Court of Appeal rightly observed, such discrepancies are explained by PW2's vantage point and the lapse of time before the recording of testimony. What is material is that the appellant was part of the group that jointly assaulted the deceased with deadly weapons, thereby demonstrating a shared common intention to kill. 441. Basing on the above analysis, we find that the evidence was sufficient to place the appellant at the scene of crime. We therefore find no basis to interfere with the concurrent findings of the courts below. The High Court properly evaluated the evidence on record and rightly convicted the appellant of murder. 45]. We are equally satisfied that the Court of Appeal duly discharged its mandate as a first appellate court by re-evaluating the evidence in its entirety and arriving at its own independent conclusion, which affirmed the findings of the Trial Court. We find no misdirection in law, nor any failure in the evaluation of evidence, that would warrant this Courf s intervention. Accordingly, Ground No. 1 of the appeal fails. Ground No. 2 661. On the second ground of appeal, counsel for the appellant contends that the sentence of twenty-five years' imprisonment was unlawful for failure to deduct the period the appellant spent on remand. Leamed counsel for the respondent 1,2 submits, however, that the trial judge expressly considered the remand period as required by law, and that the sentence imposed was therefore lawful. 671. tNe observe that the appellant was sentenced on 16th January 2012. At that time, the prevailing sentencing regime required the trial court to take into account the period spent on remand, but did not mandate a mathematical deduction from the sentence imposed. The record clearly shows that the trial judge expressly stated that he had considered the remand period before pronouncing sentence. The Court of Appeal re-evaluated the matter and rightly found no illegality in the sentence. 681. Counsel for the appellant relied on Rwabugande v Uganda (supra) to argue that the sentence was unlawful for failure to deduct the remand period. Rwabugande was delivered in March 2017. This Court clarified that Article 23(8) of the Constitution requires courts to deduct the remand period from the sentence imposed. However, the principles in Rwabugande did not apply retrospectively to sentences imposed prior to that decision. Since the appeliant's sentence preceded Rwabugande, alrd the trial judge complied with the law obtaining at the time. We accordingly find no illegality in the sentence. In the result, we find no merit in this appeal. It is accordingly dismissed. The conviction and sentence of 25 years' imprisonment are hereby upheld. (.- -W.....roru. C- day of..dfGDated and Signed at Kampala this ETIZABETH MUSOKE JUSTICE OF THE SUPREME COURT 13 @ STEPHEN MUSOTA JUSTICE OF THE SUPREME COURT CHRISTOPHER MADRAMA IZAMA JUSTICE OF THE SUPREME COURT CATHERINE BAMUGEMEREIRE JUSTICE OI THE SUPREME COURT ( MONICA MUGENYI JUSTICE OF THE SUPREME COURT k- mb{iDelittered on tlrc Day of .... 2026 F\l By tle Registrar Supreme Court Credits We appreciate the efforts of HW Caroline Wemesn, Research Magistrate for initial research 1,4