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

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) 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.

"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

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.

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