Examination Answer Booklet

To be filled by Student before completing the Examination

STUDENT ID NUMBER……001-311…………………..
DEGREE/DIPLOMA/CERTIFICATE FOR WHICH THE CANDIDATE IS REGISTERED
e.g. BBA,BPH,BIRDS,LLB,BIT:………LLB………………………….
YEAR OF STUDY…………TWO…………………………………
MODULE CODE…………… LLB 213……………………………………..
MODULE NAME……………EVIDANCE1…………………………………….
SEMESTER………ONE………………………………………………...
VERY IMPORTANT
1. Only your student ID No. and not your Name should be typed on the answer booklet.
2. Ensure that you have typed your Student ID No, Module code and Module name correctly since
any mistake may result into misallocation of results /marks /grades.

INSTRUCTIONS FOR THE ONLINE EXAMINATION

1. Save the Answer Booklet with the following name format:
2. [module code] [your SID number] Answer Booklet.
3. Example: LLB225 - 012345 Answer Booklet.
4. Write the answer to each question on a new page of the document.
5. Write the question number at the start of each question.
6. Remember to save the document regularly while you are working on it.
7. When you have finished typing your answers into the Answer Booklet, check your work and
then save.
8. Submit your Answer booklet by uploading it to Cavendish University Learning Platform -
Claned.
 CUU Answer booklet

Qn1.
A)

Issue
Whether Oketcho a police officer’s piece of evidence is sufficient to sustain a conviction?

LAW APPLICABLE
The 1995 Constitution of Uganda as Amended
The Evidence Act
Case law

Resolution
section 81 of the Evidence act provides that facts necessary to explain or introduce a fact in issue
or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant
fact or which establish the identity of anything or person whose identity is relevant or fix the
time or place at which any fact is in issue or relevant fact happened, or which show the relation
of parties by whom any such fact was transacted, are relevant in so far as they are necessary for
that purpose.
facts which establish identity where identity is in issue
Any fact which shows identity of anything is a relevant fact. Identification is an expression of
opinion that a thing or person resembles another thing or person so much so that it is likely to be
the same person or thing. Identification is the quality of sameness. In this scenario identification
was relevant and since Oketcho a police officer was at the scene and actually heard their unique
voices this evidence would be sufficient to sustain a conviction. In Njiru V R2 The appellants
were tried with aggravated robbery. Evidence adduced was that the complainant who claimed to
have seen them cut off power supply. There was also voice identification by one of them and the
complainant also claimed that the robbers had spoken to them and he could register the
appellant’s voice. An identification parade had also been carried out and on appeal by the
accused, court held,

1
section 8 of the Evidence act
2
Njiru V R [CA]N.o 46 2018

1
 CUU Answer booklet

i) Where an identification parade is to be carried out, the requirement in respect to the

members of the parade is subject; they should be of the same age, height, appearance, class of
life as the suspect and not that they should be identical. N respect of the first accused, there was
no need to find people with similar swellings as the first accused had on his side of the face
although if it was possible, it would have a commendable thing to do.
ii) Where a witness says that a part from visual identification of the suspect, he has also been
identified by voice, the witness should be allowed to confirm that. There was nothing
objectionable in a witness requesting for parade members to shout for him, so that he cold
satisfies himself that he would not make any mistake identifying the particular suspect.
Therefore, Oketcho a police officer’s piece of evidence is sufficient to sustain a conviction.

B)
Issue
Whether Musomesa’s piece of evidence is sufficient to sustain a conviction?

LAW APPLICABLE
The 1995 Constitution of Uganda as Amended
The Evidence Act
Case law
Resolution
Previous conduct refers to conduct before the fact in issue is committed. It may include motive.
It could refer to the means of bringing about the fact in issue. It could also mean previous
attempts as well as declarations of intent. Subsequent conduct may explain the occurrence of an
offense and may be used to implicate a person of a crime. Some cases, silence by the accused
person, giving of false statements or evasive explanations and the absconding form jurisdiction
may amount to subsequent conduct.
Section 7 (1) of the Evidence Act provides as follows, “Any fact is relevant which shows or
constitutes a motive or preparedness for any fact in issue or relevant fact.”3
Section 7 (2) provides that the conduct of any party … in any suit or proceeding or in reference
to that suit or proceeding or in reference to any fact in issue to a suit or proceeding or relevant to

3
Section 7 (1) of the Evidence Act

2
 CUU Answer booklet

it, and the conduct of any person to an offense against whom is a subject of any proceeding is
relevant if that conduct influences or is influenced by any fact in issue or relevant fact and
whether it was previous or subsequent to the fact in issue or relevant fact.
Motive is what influences a person to act in a particular way. In criminal law, motive is
irrelevant, but in the law of evidence; motive may be relevant in so far as it establishes causation.
Motive may be a fear or a desire to bring about a particular activity. Motive is a mental state and
it’s normally derived from circumstances and relationships. It can also be established from a
person’s words and moods.
Under section 74, facts which constitute preparation are also relevant and admissible.
Preparation refers to plan to bring about a particular event. Preparation refers to completing all
the necessary preliqiusites to bring about the fact in issue. Section 7 also makes relevant previous
and subsequent conduct. And in the conclusion, Musomesa’s piece of evidence would be
insufficient to sustain a conviction.
C)
Issue
Whether Limbako’s piece of evidence is sufficient to sustain a conviction?
LAW APPLICABLE
The 1995 Constitution of Uganda as Amended
The Evidence Act
Case law
Resolution
Section 85 of the Evidence act provides that facts necessary to explain or introduce a fact in issue
or relevant fact, or which sup[port or rebut an inference suggested by a fact in issue or relevant
fact or which establish the identity of anything or person whose identity is relevant or fix the
time or place at which any fact is in issue or relevant fact happened, or which show the relation
of parties by whom any such fact was transacted, are relevant in so far as they are necessary for
that purpose. Section 8 introduces the following specific elements as relevant;
a) Facts that explain or introduce a fact in issue.
b) Facts which support or rebut an inference.
c) Facts which establish identity where identity is in issue.
4
Section 7 of the Evidence Act
5
Section 8 of the Evidence Act

3
 CUU Answer booklet

d) Facts that fix time and place at which the relevant issue may have happened.
e) Facts that show a relationship of the parties.
In this scenario we would use element of Facts which establish identity where identity is in issue
Because the Limbako, the newly appointed deputy resident district commissioner of the area
where the persons were assembled, he had clearly seen that the three accused persons were
clearly in charge since they were in the middle of the crowd and were singing reggae songs. That
although the assembly happened at about 6:00pm there was enough light for him to be able to
properly point out these three.
Any fact which shows identity of anything is a relevant fact. Identification is an expression of
opinion that a thing or person resembles another thing or person so much so that it is likely to be
the same person or thing. Identification is the quality of sameness. When the process of
identification is being conducted, a number of things are considered; among which include the
person identifying must have seen or observed the accused, the identifying person must have had
a settled impression in his or her mind. Which Limbako, fulfilled hence making his piece of
evidence sufficient to sustain a conviction. In Karanja V R 6Court held that subject to certain
exceptions, it is very vital that a fact may be proved by the testimony of a single witness but this
rule does not lessen the need for testing with the greatest of care. The evidence of a single
witness regarding identification especially where it is known that the conditions favoring
identification were difficult. In such a case, what is needed is other corroborating evidence
whether direct or circumstantial.

D
Issues
Whether Mulamuzi’s piece of evidence is sufficient to sustain a conviction?

Resolution

6
Karanja V R [2009] eKLR

4
 CUU Answer booklet

An opinion is a statement as to what one thinks about an alleged fact. It could be as to whether
that fact exists of not, who caused it and why it could have happened. Generally, matters of
opinion are conclusions or inferences drawn by a person in reference to particular instances. The
general rule is that opinions of inferences as to the existence of facts in issue or relevant facts are
inadmissible.
The Rule against Opinion Evidence.
The rule is much narrower in its scope than the term opinion in its ordinary sense. Thus, while
the general rule is that opinion evidence is inadmissible, there are some instances where it can be
admitted as an exception between the general rule and this is provided for in section 43 – 49 of
the Evidence Act7.
Section 43 of the Evidence Act provides for opinion of experts according to which court has to
form an opinion upon a pint in foreign law or of science or art or as to identity of handwriting or
finger impressions. The opinions upon that point of persons especially skilled in that foreign law,
science or art or impressions as to identity of handwriting or finger impressions are relevant facts
and such persons are called experts. However, Court will consider the experience of experts even
when they did not acquire formal training. Experts may therefore not be specialists in a particular
field but may just be skilled or experienced in the branch of knowledge even though the
exercise of such skill or acquisition of such knowledge is not part of their general occupation.
In Uganda v Ntura8 There was an accident caused by an Uzi gun. In a bid to establish the
characteristics of an Uzi gun so as to show if it could have caused the accident, a police officer
was called to testify as an expert on guns. It was established that he was an expert since 1949 and
that he’d had a habit of training on firearms. The court held that the policeman’s professional
experience coupled with some specialised study of firearms qualified him to be an expert witness
in the matter of guns. In the instant scenario apart him being a magistrate, he had an experience
to the accused as he had convicted them before, hence making his evidence sufficient to sustain a
conviction.
E)
Issue
Whether Abwatuka, a prisons officer’s evidence is sufficient to sustain a conviction?

7
Section 43 of the Evidence Act
8
Uganda v Ntura

5
 CUU Answer booklet

Hearsay evidence has been defined sometimes as third party’s assertion narrated to court by a
witness for the purpose of establishing the truth of that which is the assertion. A more precise
description of hearsay evidence was made in the case, Subraminium V Public Prosecutor,
where it was held that hearsay evidence is an assertion of a person other than the witness
testifying offered as evidence of the truth of that assertion rather than as evidence of the fact that
the assertion was made. Court added that it is not original evidence. The rule of hearsay evidence
is therefore exclusionary in the sense that it exclude4s hearsay evidence in the course of
proceedings. According to section 59 of the Evidence Act, oral evidence must in all cases
whatever be direct, that is;
a) If it refers to a fact that could be seen, must be the evidence of the witness who says he or she
saw it.
b) If it refers to a fact that could be heard, must be the evidence of a witness who says he or she
heard it.
c) If it refers to a fact that could be perceived, by any other sense or in any other manner, must be
the evidence of a witness who says he or she perceived it in that sense or any other manner.
d) If it refers to an opinion, on the grounds of which that opinion is held, it must be the evidence
of a person who holds that opinion on that ground. Per section 59, only direct evidence is
admitted in court thus other evidence is hearsay and therefore inadmissible. Hence his evidence
would be insufficient to sustain the conviction because apart from it being hearsay, the officer
was intoxicated.

F)
Issue
Whether Mary’s evidence is sufficient to sustain a conviction?
Resolution
Evidence of ordinary witnesses is provided for under sections 45 to 48 of the Evidence Act.
Under section 459, when the court has to form an opinion as to the person by whom any
document was written or signed, the opinion of nay person acquainted with the handwriting of a

9
sections 45 of the evidence act cap6

6
 CUU Answer booklet

person by whom it is supposed to be written or signed but it was or was not written by that
person is a relevant fact.
A person is acquainted with the handwriting of another person where he or she has seen that
person write or when they have received documents purporting to be written by that person in
answer to documents written
by themselves or have in the ordinary course of business, documents purporting to be written by
that person have been habitually submitted to them.
Section 46 states that opinion as to the existence of right or custom may be given by someone
who is likely to be knowing of its existence.
'Section 47 states that opinions as to usages or tenets of anybody of men or family or opinion as
to the constitution or government or of any religious or charitable foundation or opinions as to
the meaning of words or terms used in particular districts or by particular classes of people, the
opinions of persons having special means of knowledge thereon are relevant facts. /Section 48
states that opinions on relationship are relevant when court has to form an opinion as to the
relationship of one person to another the opinion of nay person who is a member of the family or
who has special means of knowledge of the subject is relevant. In Case v Ruguru10
Court held that Special expertise was not needed to prove the existence of a marriage in the
Embu custom, however, you must be likely to know, by being a member of that tribe or group of
people. It must have been in existence for 6 or more months.
In the instant scenario Mary had work for Kimiko for some time and it never required expert to
confirm his signature but Mary would as she has worked for so long. Hence her evidence would
be sufficient to sustain a conviction.

10
Case v Ruguru

7
 CUU Answer booklet

Q.2.

FACTS
During an operation by L.C officials, L.D.Us and police in Kikubamtwe Zone, Kabalagala, one
Mujomba a habitual thief was arrested on suspicion of a recent robbery in the area. Mujomba had
just been released from Luzira where he was serving a jail sentence after conviction of charges of
theft.
Soon after his arrest, a mob gathered and started beating him with a stick and stones. He
confessed that it was him who carried out the robbery to save himself from further beating. He
also named one Abdul and another man called Joker as a person with whom he carried out the
robbery. He then led the LC’s and police where they had hidden some of the goods stolen during
the robbery.
On the same day, Abdul was also arrested but he denied having been with Mujomba. He said that
at the time of the alleged robbery he was in Masaka and even produced a bus ticket from
Gateway Bus Services Ltd for the date in question on the same route. Both Mujomba and Abdul
were taken to Kabalagala Police Station and detained for four days.
They were being beaten daily in the hope that they would reveal more information. On the 5th
day,
D/CPL Ojok recorded a charge and caution statements of the two suspects. Mujomba admitted
having committed the robbery with Abdul but Abdul denied the charge. Later, Ojok called Abdul
to his office and told him that if he cooperates like Mujomba he “will not have any problem in
the court” whereupon Abdul admitted. At the trial for robbery the prosecutor sought to tender in
evidence of the statement of Mujomba against both the accused person and his record of
previous conviction on the same charges.
Another witness A told court that as he passed by the scene of robbery, he heard one of the
witnesses cry out “Mujomba I have seen you, it is you”.

ISSUE

Whether Mujomba’s confession is admissible in a court of law?

8
 CUU Answer booklet

LAW APPLICABLE

The 1995 Constitution of Uganda as Amended

The Evidence Act
Case law

RESOLUTION

The Uganda Evidence Act does not define confessions nor does the Interpretation Act. One can
however, borrow the definition of the Kenyan Evidence Act11 which indicates that confessions
comprise of words or conduct or a combination of words and conduct from which whether taken
alone or in connection with other words lead to an inference that may reasonably be drawn that
the party making the confession has committed an offence.
The law on confessions in Uganda is covered by sections 23 to 29 of the Evidence Act 12. The
term confession is not defined in the act itself but was defined in Swami V King Emperor13, as
a statement by an accused person acknowledging guilt of an alleged crime.
I would agree that Mujomba’s confession is admissible in a court of law
The law is that the court has discretion and it bears the duty to determine whether an influence
has been fully removed. Court look at the circumstances of the case and the nature of the case,
person being threatened to determine whether section 25 will apply or not.
In Bagaga V Uganda.14, the appellant appealed against a conviction for murder on grounds that
his confession was involuntary. It was contended on his behalf that he had been tortured by the
police ad that he had been in custody for a long time. It was held that the appellant’s confession
was voluntary and although he had been beaten prior to his confession, the beating was not
connected to the confession since the LDU who arrested him did not know at the time that the
appellant was a suspect in a murder case, he was only arrested for having escaped from prison.

11
Kenyan Evidence Act Cap80
12
Sections 23 to 29 of the Evidence Act Cap6
13
(1939) 1 ALL ER 396
14
Bagaga V Uganda (CA 8 2002) [2004]

9
 CUU Answer booklet

Section26 of the Evidence Act states that Where a confession, otherwise relevant it does not
become irrelevant merely because it was made under a promise of secrecy, or in consequence of
a deception practiced on eth accused person for the purpose of obtaining it or when he or she is
drunk, or because it was made in answer to a question which he or she need not have answered.
Whatever may have been the form of this question, or because he was not warned that he was not
bound to make a confession and that evidence of it might be given against him or her.
In the instant case, Mujomba confessed after the mob gathered and started beating him with a
stick and stones to save himself from further beating. It is with this that I submit that Mujomba’s
confession is inadmissible in a court of law since it was done under threats.

B)
In Uganda V Mutahanzo15, the accused was indicted for murder. Together with the deceased
they had been drinking waragi and on their way home engaged in an argument when the accused
asked the deceased to give him some waragi but the deceased refused. During the ensuing
scuffle, the accused stabbed the deceased and when apprehended made a confession and court
held that a confession connotes an unequivocal admission of having committed an act which in
law amounts to an offense or at any rate admits the facts that substantially constitute a crime.
Who can take down a confession?
Before 1971, a confession could be made before a police officer of the rank of corporal or above.
In the 1991 amendment, it was made a requirement that a confession be made to a police officer
in the presence of a magistrate. Later, the law was further amended to read as follows; “No
person shall make a confession while he or she is the custody of a police officer shall be proved
against such persons unless it’s made in the immediate presence of;
a) Police officers at or above the rank of Assistant Police Inspector
b) Magistrate and No person shall be convicted of an offense under paragraph 1unless of
confession made under that paragraph is corroborated by material evidence supporting the
confession implicating that person.
The Process of Taking down a Confession.
Favorable circumstances

15
Uganda V Mutahanzo 1988-90 HCB44

10
 CUU Answer booklet

The accused person must feel free at the time when he is asked to make the confession. There
must be a caution administered. You must ascertain the language in which the confession is to be
made reason being, one may require an interpreter. Language is also important because the
confession is taken down verbatim.
After the statement has been recorded, it should be read back to the accused to confirm that that
is what he stated. After confirmation, the accused is asked to signor thumbprint as a sign of
approval. The person taking down the confession should also sign the date of the confession and
if it is a magistrate, it may be prudent that they use a court seal. It is important to note that in this
session, the accused should not be cross examined.
On the issue of caution. In R V Kaggwa 16where the recording officer failed to administer a
caution and it was held that there was insufficient compliance with the rules of taking down
confessions therefore, the statement was inadmissible. For an elaborate explanation of the
process and the precautions to be taken in taking down a confession.
The procedure for recording confessions is found in the Evidence (Statement to Police Officers)
Rules and case law. The procedure for magistrates is illustrated in the case of Uganda v Doyi
Wabwire Kyoyo17. Justice Ssekandi laid down the following procedure;

When an accused person or suspect is brought to a magistrate the magistrate should ensure that
the police or prisons officer escorting the accused leaves the chambers.

The magistrate should ask his court clerk to sit in the chambers with him so as to guard against
unnecessary allegations and to act as an interpreter where necessary.

The Magistrate should use court paper in recording any statement from the accused.

The accused should be informed of the charge against him if in fact he has been charged. If he
has not been charged before, the magistrate should inform him of the allegations brought by the
police as clearly as possible so that the accused is in no doubt as to the nature of the charge
which he is likely to face and upon which the statement is likely to be adduced as evidence at the
trial.

Immediately upon being informed of the charge, the magistrate should caution the accused in the
following terms:
16
R V Kaggwa 2014 CS 177
17
Uganda v Doyi Wabwire Kyoyo (1976) HCB 213

11
 CUU Answer booklet

“You need not say anything unless you wish but whatever you do say will be taken down in
writing and may be given in evidence”

Then the accused should be informed that he has nothing to fear or hope for in making a
statement before the magistrate.

If the accused volunteers a statement, then this should be recorded in the language used by the
accused and an English translation made of it. Both statements should be read back to the
accused who should signify his agreement with the contents with his signature or thumb mark.
Then the magistrate should countersign both statements and date them.

In the case of Njuguna & others v R18 it was held that it is inadvisable if not improper for the
police officer who is conducting the investigation of the case, to charge and record the cautioned
statement of the accused. According to the case of Uganda v Kalema & Another19(, it is clearly
indicated that such a section means that the accused should appear before an impartial person
who knew nothing about the background of the case. This means that the courts have to be on
their guard to see that the purpose of the exercise was not defeated by backdoor practices.

The procedure is very clear which can easily be adopted by anyone willing to take down a
confession.
In conclusion, the above is the procedure to be followed in recording a charge and caution
statement from an accused person.

C)
Issue
Whether court of law convict Abdul by relying on Mujomba’s evidence?

Resolution
Yes, I would agree that the court of law convict Abdul by relying on Mujomba’s evidence.
Under section 2720, of the Evidence act states that when more persons than one is being tried
jointly for the same offence, and a confession made by one of those persons affecting himself or
herself and some other of those persons is proved, the court may take into consideration such
18
Njuguna & others v R (1954) 21 EACA 316
19
Uganda v Kalema & Another (1974) HCB) 142
20
section 27 of the Evidence act

12
 CUU Answer booklet

confession as against that other person as well as the person who makes the confession. Under
this section the general rule is that an accused person’s confession can be used against his co
accused. However, there are exceptions to the rule in section 27. According to the case
of Nsubuga v Uganda21 if the statement intends to exonerate its maker and implicates the co
accused then the weight attached to it is very small. In the case of Abdu Kasujja v Uganda
Criminal Appeal 596 of 196422 Justice Keating said that a confession by an accused person can
be used as a basis of the prosecution’s evidence against the co accused however such evidence
needs corroboration and the accused must implicate himself to the same extent he is implicating
the other and he should be exposing himself by making such a confession to the same risk or
even greater risk than the others
In conclusion therefore, the court of law convict Abdul by relying on Mujomba’s evidence

21
Nsubuga v Uganda
22
Abdu Kasujja v Uganda Criminal Appeal 596 of 1964

13
 CUU Answer booklet

Q.4.

An opinion is a statement as to what a person thinks about an alleged fact, whether or not it took
place, who caused it, why or when it occurred.

Matters of opinion are conclusions drawn by a person in reference to particular inferences.

Ordinarily, witnesses are invited to testify in Court whenever it’s necessary to give testimonial
evidence and when this happens, they are asked to give evidence of facts as they perceived them.
This is because of the general rule that opinions of witnesses as to the existence of facts-in-issue
or relevant facts are inadmissible. The opinion of a witness will most likely be partial to the party
who called him to give evidence

Opinion evidence in most cases is likely to be influenced by matters of hearsay. However, as

with all general rules, there are instances of exception in which opinion evidence will be
admissible. Sections 43-49 Evidence Act, which recognise two categories of opinion evidence as
admissible as discussed below;

Expert evidence and Opinions of ordinary witnesses.

Expert evidence

Section 4323 Evidence Act state that When the court has to form an opinion upon a point of
foreign law, or of science or art, or as to identity of handwriting or finger impressions, the
opinions upon that point of persons especially skilled in that foreign law, science or art, or in
questions as to the identity of handwriting or finger impressions, are relevant facts. Such persons
are called experts.

The decision as to whether a witness is qualified to give evidence of opinion as an expert is made
by the Judges who are thus the expert of experts. It must, however, be noted that an expert
cannot bind the court. The court listens and decides for itself which expert’s evidence to accept.
A number of factors are considered in determining whether or not one is an expert.

Section 43 of the Evidence Act makes reference to ‘special skill’. How is this acquired? Possibly
through educational background. Ordinarily, one would be regarded as an expert if he has an
23
Section 43 Evidence Act

14
 CUU Answer booklet

educational background which enables him to become conversant with the subject he is expected
to testify on. However, before evidence of such person’s evidence is regarded as expert, his
educational background must first be put on record and each field of expertise will require
definite qualifications.

In the case of Oundo v R, court held that the police officer was not an expert witness at all; He
couldn’t give his opinion as to what he thought the mental state of the accused was, since he was
not qualified in such matters didn’t have the mental training. However, the doctor’s evidence was
admissible since he had the necessary educational background to be able to give an authoritative
opinion on the mental state of the appellant. Hence the court Courts require evidence to act, not
opinions as police officers’ evidence was just an option24.

Expert witnesses may not necessarily have formal training in the areas they testify upon as such a
person presented as an expert needn’t be an expert or specialist in the professional or academic
sense of the word. They may just be skilled or experienced in the branch of knowledge
concerned even if the exercise of such a skill or the acquisition of such knowledge is not part of
his general occupation, in which case, experience means that the person will have been active in
a certain field for some time. The period for which a person is required to be active is relative,
depending on the circumstances of each case. In Uganda v Ntura, there was an accident caused
by an Uzi gun. In a bid to establish the characteristics of an Uzi gun so as to show if it could
have caused the accident, a police officer was called to testify as an expert on guns. It was
established that he was an expert since 1949 and that he’d had a habit of training on firearms and
the court held the policeman’s professional experience coupled with some specialized study of
firearms qualified him to be an expert witness in the matter of guns. Hence it was not just an
opinion but rather evidence that would help court to act.

Q.3.
24
Oundo v R CA [NO.48] 2009

15
 CUU Answer booklet

A) Dying Declarations
In the case of Sabiiti Vincent V Uganda25 Court said that a dying declaration is admissible
evidence but caution must be taken when relying on it to convict because such evidence lacks
cross examination. In addition, the circumstances under which the dying declaration was made
must be examined so as to determine whether the declarant was able to see the accused.

When a statement is made by a person as the cause of his or her death or as any of the
circumstances of the transaction which resulted into his or her death, in cases in which the cause
of death of that person comes into question and the statements are relevant whether the person
who made them was or was not at the time when they were made of eth proceeding which the
cause of his or her death comes into question. It is a statement uttered by a since deceased
person; the purpose of which is to establish the cause of death of that person. Ordinarily, this
would amount to hearsay evidence because the maker is not before court. However, such
evidence is admitted as an exception to the hearsay rule under section 30 of the Evidence Act.

Elements of a Valid Dying Declaration

i) The maker must have died.

ii) Statement must be complete.

iii) It should be a free expression of the deceased.

iv) It should be corroborated.

v) The issue of time.

In R V Kabatereine26 Two days before the deceased was burnt to death, she had made a
statement to her head man that the accused had threatened to burn her in her house because she
had caused the death of her father by witchcraft. The issue was whether the statement to the
headman made two days before was a rightly admissible dying declaration as it was directly
related to the occasion of the death of the deceased. The time at which the statement was made
was immaterial.

25
Sabiiti Vincent V Uganda
26
R V Kabatereine

16
 CUU Answer booklet

B) Identification parade

In Karanja V R27, the appellant was convicted of aggravated robbery; he was identified by the
victim at an identification parade. He raised the defense of alibi and argued that evidence of
identification was unsafe or unsustainable. Court held that subject to certain exceptions, it is very
vital that a fact may be proved by the testimony of a single witness but this rule does not lessen
the need for testing with the greatest of care. The evidence of a single witness regarding
identification especially where it is known that the conditions favoring identification were
difficult. In such a case, what is needed is other corroborating evidence whether direct or
circumstantial.

Identification parades are normally conducted by the police during investigations in an attempt to
identify the accused or suspect with the offence for which he or she is charged or suspected. The
purpose of the parade is to find out from the witness who claims to have seen the accused or
suspect at the scene of the crime whether he can identify the accused or suspect as the person he
or she saw previously at the scene of the crime or actually committing the offence. The witness
must have seen the suspect previously, lest the parade will be of no evidential value. In addition,
the witness should not have seen the suspect subsequent to his or her arrest, as his or her
identification at the parade may be said to be based on his or her having seen the suspect after
arrest and not at the time the crime was committed. In order to ensure that identification parades
are conducted fairly, the High Court of Uganda has approved certain rules for conducting
identification parades. In Uganda V Ntambazi28, the following rules were laid out for the
purposes of an identification parade;

The police officer conducting the parade is required to ensure the following:

1. That the accused person is always informed that he may have an advocate or friend present
when the parade takes place; 2. That the officer in charge of the case, although he may be
present, does not carry out the identification; 3. That the witness does not see the accused before
the parade; 4. That the accused is placed among at least eight persons as far as possible, of
similar age, height, general appearance and class of life as himself or herself; 5. That the accused
is allowed to take any position he or she wishes after each identifying witness has left if he so

27
Karanja V R [2009] eKLR
28
Uganda V Ntambazi, (1996) HCB 29

17
 CUU Answer booklet

desires; 6. Care should be exercised that the witnesses are not allowed to communicate with each
other after they have been to the parade; 7. Exclude every person who has no business there; 8.
Make a careful note after each witness leaves the parade, recording whether the witness
identifies, or other circumstances; 9. If the witness desires to see the accused walk, hear him
speak, see him with his hat on or off, see that this is done. As a precautionary measure, it is being
suggested the whole parade be asked to do this. 10. See that the witness touches the person he or
she identifies. 11. At the preparation of the parade or during the parade ask the accused if he or
she is satisfied that the parade is being conducted in a fair manner and make a note of his or her
reply. 12. In introducing the witness, tell him or her that he or she will see a group of people who
may or may not contain the suspected person. Do not say “Pick out somebody” or influence him
or her in any way whatsoever. 13. Act with scrupulous fairness, otherwise the value of the
identification as evidence will depreciate considerably.

C) Evidence of character in criminal proceedings

According to section 5129 of the Evidence Act it is provided that I criminal proceedings the fact
that the person accused is of good character is relevant. This is in line with the presumption of
innocence but character evidence is given pursuant to section 53 whereby it should be given in
relation to the offence charged.

In Yowana Setumba v R30 it was Held: Character evidence is admissible against the accused if
the prosecution shows him as a person of bad character. According to section 52 it is the general
rule that in criminal proceedings the bad character of the accused person is irrelevant. However,
you can show it as part of resgestae as evidence of past similar occurrences under section 14 of
the Evidence Act. Section 5231 provides circumstances when bad character would be admissible.

BIOGRAPHY

29
section 51 of the Evidence Act
30
Yowana Setumba v R (1957) EA 35
31
section 52 of the Evidence Act

18
 CUU Answer booklet

Legislation

The 1995 Uganda Constitution as Amended

Kenyan Evidence Act Cap80

The Evidence Act Cap6

Case law

Swami V King Emperor (1939) 1 ALL ER 396

Uganda v Mutahanzo Yosamu (1988-90) HCB

Yowana Setumba v R (1957) EA 35

Njiru V R [CA]N.o 46 2018

Bagaga V Uganda (CA 8 2002) [2004]

Uganda V Ntambazi, (1996) HCB 29

19
 CUU Answer booklet

20
 CUU Answer booklet

21
 CUU Answer booklet

22
 CUU Answer booklet

23
 CUU Answer booklet

24
 CUU Answer booklet

25
 CUU Answer booklet

26
 CUU Answer booklet

27
 CUU Answer booklet

28
 CUU Answer booklet

29
 CUU Answer booklet

30
 CUU Answer booklet

31
 CUU Answer booklet

32
 CUU Answer booklet

33
 CUU Answer booklet

34
 CUU Answer booklet

35
 CUU Answer booklet

36
 CUU Answer booklet

37