Bainomugisha v Uganda (Criminal Appeal 20 of 2002) [2004] UGSC 50 (17 February 2004)

# THE REPUBLIC OF UGANDA

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# IN THE SUPREME COURT OF UGANDA **AT MENGO**

#### CORAM: ODOKI, C. J., ODER, KAROKORA, KANYEIHAMBA. KATO, JJ. S. C.

#### CRIMINAL APPEAL NO. 20 OF 2002

### **BETWEEN**

# BAINOMUGISHA HERBERT ::::::::::::::::::::::::::::::::::::

#### AND

UGANDA :::::::::::::: **RESPONDENT**

[Appeal from the decision of the Court of Appeal given at Kampala by Hon. Mukasa-Kikonyogo, DCJ. Engwau and Twinomujuni, J. J. A. on 8/5/02 in Criminal Appeal No. 20 of 2002].

## JUDGMENT OF THE COURT

The appellant was indicted, tried, convicted and sentenced to death by the High Court at Bushenyi for murder, contrary to sections 183 and 184 of the Penal Code Act

He appealed to the Court of Appeal which dismissed it and confirmed conviction and sentence. Hence this appeal.

The background to this case is that on $4^{th}$ March, 1997, the appellant and his brother, both armed with pangas and accompanied by their mother, went to the home of their father,

Azaria Katsyomezo, which was also the home of his second wrfe and cut him to death while inflicting serious bodily harm to his second wife and her two children, PW 7 and PW 8

L

The appeal to this court was based on two grounds but the appellant, through his counsel abandoned the first ground. Ground 2 as amended reads as follows

"The learned Justices of Appeal misdirected fhemse/yes when they relied on the discredited evidence of PW 6. PW 7 and PW I to u ph old the a ppell a nt's co nvicti on. "

Mr. Stephen Mubiru, counsel for the appellant contended that the evidence of the children of the co-wife should not have been relied upon, especially as that of their mother was clearly discredited by the learned trial judge He further contended that the appellant's evrdence that it was his father who attacked him first should have been believed and the courts below should have found that he killed his father after provocation and in self-defence.

Mrs Betty Khisa, Senior Principal State Attorney and counsel for the respondent supported both the conviction and sentence She argued that the evidence of PW 6, PW 7 and PW8 was properly evaluated by both the High Court and the Court of Appeal and the fact that they were all related to the deceased rs not a reason for rejecting or discrediting their evidence.

Having heard both counsel and examined the record of proceedings, we are satisfied that the appellant was properly convicted. We find no merit in this appeal. It is accordingly dismissed.

Dated at Mengo this 17<sup>th</sup> day of February, 2004.

**B. J. ODOKI CHIEF JUSTICE**

A. H. O. ODER JUSTICE OF THE SUPREME COURT

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A. N. KAROKORA JUSTICE OF THE SUPREME COURT

G. W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT

C. M. KATÓ JUSTICE OF THE SUPREME COURT 3