The Court of Appeal of Uganda reaffirms guiding principles on voire dire, voice identification, dying declarations, and sentencing in criminal cases.

The Court of Appeal reiterates that voire dire remains essential where child witnesses of tender years are concerned. Further, voice identification alone, when credible, may sustain a conviction.

Introduction

The Court of Appeal of Uganda sitting at Mbarara (Justices Moses Kazibwe Kawumi, Florence Nakachwa, and Cornelio Kakooza Sobiiti, JJA) dismissed the appeal of Kyomugasho Caroline, who had been convicted on two counts of murder contrary to sections 188 and 189 of the Penal Code Act and one count of attempted murder contrary to section 204 of the Penal Code Act.

Facts

The appellant was sentenced to 36 years and 10 months’ imprisonment on each count, with the sentences to run concurrently.

The facts established at trial revealed that on 9 September 2015 at about 7:00 pm, the deceased persons, Kembabazi Prisca and Ssekayombya Andrew, were in an outdoor kitchen with Nakawungu Anita preparing porridge.

The appellant locked the kitchen door from the outside. A verbal exchange between Kembabazi and the appellant ensued, during which the appellant threw a bottle containing a flammable substance into the kitchen. The fire severely burned all three victims. Kembabazi and Ssekayombya later died from respiratory failure due to burn injuries; Nakawungu survived with extensive scars.

The appellant, who had been previously married to Kembabazi’s husband (Ssemogerere), had left the home two weeks prior to the incident.

Her conviction was primarily based on voice identification by Nakawungu (PW1); testimony of Beinomugisha (PW3), a boda boda rider who transported the appellant from the crime scene; a dying declaration by Kembabazi.

The appellant raised an alibi, claiming she was at her parents’ home. This was disbelieved.

Her appeal raised four grounds:

1. Failure to conduct a proper vòire dire examination for a child witness;

2. Erroneous reliance on voice identification evidence;

3. Harsh and excessive sentence;

4. Failure to deduct remand time from the sentence.

   
   
   
   

Resolution of Issues

1. Vòire Dire and Competency of Child Witnesses

The Court affirmed the importance of vòire dire under section 41(3) of the Trial on Indictments Act (Cap 25), which mandates an inquiry into the intelligence and truth-telling capacity of a child of tender years.

Relying on Kifamunte Henry v Uganda [1998] UGSC 20, the Court reiterated its duty to re-evaluate trial records in criminal appeals.

The court reproduced the trial judge’s examination of the child witness and upheld the finding that she was competent to testify on oath.

Referencing Opolot Ben Bosco v Uganda [2023] UGCA 40 – A vòire dire must demonstrate the child’s ability to distinguish right from wrong and retain independent memory of the events and has the reliability to prove that at the material time, she had conceived an accurate impression of the occurrence concerning which she stands to testify, and has a memory sufficient to retain an independent recollection of the occurrence, and the capacity to express in words such memory of the occurrence when asked simple questions. Moreover, Black’s Law Dictionary (11th Ed.) Defines vòire dire as a preliminary examination of a witness's competence.

2. Voice Identification and Visual Recognition

The Court extensively analysed voice identification, noting that PW1 had stayed with the appellant for 2½ years and could recognize her voice. The appellant’s own admission during trial corroborated this fact. PW3, a boda boda rider, also identified the appellant based on extended interaction.

Citing Sakar on Evidence (14th Ed., 1993), p. 170 – Courts may convict based solely on voice identification if the voice is familiar and the conditions allow for accurate recognition. Abdallah Nabulere & Another v Uganda [1979] UGCA 14 – Factors for assessing identification include lighting, duration, distance, and prior knowledge. R v Turnbull [1976] 3 All ER 549 – Identification evidence must be treated with caution.

If the court is satisfied about the identification of persons by evidence of voice alone, no rule of law prevents its acceptance as the sole basis for conviction. Possibilities of mistakes in identifying persons by voice, especially by those who are closely familiar with the voice, could arise only when the voices heard are different from the normal voices on account of the situation, or when identical voices are possible from other persons."

In Arthurs v AG for Northern Ireland [1970] 55 Criminal Appeals R 161, it was observed that courts are exceptionally cautious when the circumstances in which the identifying witness had the opportunity to recognize a suspect were so limited, or the witness’s familiarity with the suspect was of such short duration.

It is also established that the principles which apply to visual identification apply equally to voice identification, and the risk of mistakes in identifying a voice is as great as that involved in visual identification. (See R v T [2003] 139 Criminal Reports 281.)

In considering whether factors favouring visual or voice identification existed, courts rely on a number of factors, including the nature of light, the time taken during the interaction, the distance between the witness and the assailant, and the witness’s prior knowledge of the person.

3. Dying Declarations and Corroboration

The court upheld the admissibility of a dying declaration made by the deceased (Kemirembe), which was admitted under section 30 of the Evidence Act (Cap 8).

The statement, although unsigned due to her injuries, was found to be consistent with PW1’s testimony and given under a consciousness of impending death.

The court noted that although the issue of the nature of light in the kitchen, now turned crime scene, did not arise from either party during the trial, it was undisputed that Kemirembe was preparing porridge, implying the presence of firelight that provided some form of illumination.

While the appellant vehemently denied knowing the late Kemirembe, the evidence of PW2, their husband, did not support this assertion. PW2 testified that Kemirembe lived in a house approximately two kilometres from where the appellant resided. He also stated, without challenge, that the appellant had previously refused to let Kemirembe visit her children and had threatened to harm her.

PW2’s evidence about the appellant’s behaviour was vital in establishing her prior knowledge of the deceased. This crucial testimony was left unchallenged, and the inference to be drawn is that it is truthful. The coincidence that the incident occurred shortly after the appellant had left the home, and knew that Kemirembe had returned to it, further implicates her as the perpetrator.

Moreover, the appellant stood at the kitchen window, and the deceased approached it to investigate who had locked the door, bringing her into close proximity with the appellant. The court noted that with the trial Judge, under these circumstances, the deceased was able to properly identify the appellant.

Citing Tindigwihura Mbahe v Uganda SCCA No. 9 of 1987, Habib Salim v Uganda [2023] UGCA 139 and Black’s Law Dictionary (6th Ed.) – Defines a “dying declaration” as a statement made by a person believing death is imminent, concerning the cause or circumstances of death.

4. Sentencing: Harshness, Consistency & Remand Time

The appellant challenged the 36 years and 10 months sentence as excessive. The Court reaffirmed that a sentence will only be disturbed if it is illegal, based on a wrong principle, or manifestly excessive.

Citing Livingstone Kakooza v Uganda SCCA No. 17 of 1993, Jackson Nzita v Uganda SCCA No. 19 of 1995, Aharikundira Yustina v Uganda [2008] UGSC 49, the court reaffirmed that – Sentences must reflect parity in similar cases.

The Court noted that the trial judge appropriately started with a 40-year sentence (for each count) and deducted 3 years and 2 months as required under Article 23(8) of the Constitution, which mandates the consideration of time spent on remand.

In Florence Abbo v Uganda CACA No. 188 of 2013 – Sentence of 40 years upheld for murder. Ssemaganda Sperito v Uganda CACA No. 456 of 2016 – 50 years for murder upheld. Uwayimana Molly v Uganda CACA No. 103 of 2009 – Death sentence substituted with 30 years. Twinomugisha Andrew v Uganda [2024] UGCA 318 – Death sentence reduced to 35 years.

IV. CONCLUSION

This Court of Appeal decision is significant in restating the law on:

1. The threshold for assessing the competence of child witnesses through vòire dire.

2. The admissibility and weight of voice identification.

3. The cautious application of dying declarations.

4. The principles guiding sentencing, including remand deduction and comparative proportionality.

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Carotine Kyomugasho v Uganda 2025 UGCA 192 (20 June 2025).pdf

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