Baluku v Uganda (Criminal Appeal 585 of 2015) [2023] UGCA 229 (25 August 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT FORT-PORTAL CRIMINAL APPEAL NO.585 OF 2015

[Coram: Buteera, DCJ; Mulyagonja & Luswata, JJA] BALUKU DAVID ::::::::::::::::::::::::::::::::::::

### **VERSUS**

# UGANDA :::::::::::::::::::::::::::::::::::

(Appeal against the conviction and sentence of the High Court of Uganda 10 at Fort Portal, Batema N. D. A, J, dated 15<sup>th</sup> August 2014, in Criminal Session Case No. 0095 of 2009)

# JUDGEMENT OF THE COURT

#### **Introduction** 15

The appellant was convicted of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap 120, and sentenced to 35 years' imprisonment.

### **Brief Facts**

The facts according to the prosecution case were that on the $6<sup>th</sup>$ day of August 2009, while at Kasenyi landing site on Lake George in Kasese 20 District, the appellant murdered Bwambale Joseph. That according to the evidence of the doctor who examined the body of the deceased, the deceased was hit by a heavy blunt object on the forehead causing a depressed skull fracture. According to the postmortem report, the deceased died of severe cerebral concussion arising from the head injuries.

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In his defense, the appellant contested those facts stating instead that the deceased drowned following a hippopotamus hitting the boat in which they were. That he was able to swim and get hold of the boat, while the deceased failed to make it. The appellant was tried and convicted of murder and sentenced to 35 years' imprisonment. Dissatisfied with that decision, he filed this Appeal.

- **Grounds of Appeal** - 1. That the trial judge erred in law and fact when, in his conviction of the appellant for the offence of murder, he did not cite the law upon which he based his conviction. - 2. That the trial Judge erred in law and fact when he convicted the appellant for the offence of murder on uncorroborated circumstantial evidence, thus occasioning a miscarriage of justice. - 3. The trial judge erred in law and fact when he passed an illegal sentence of 35 years' imprisonment against the appellant, whereby the law under which the appellant was convicted was not cited and the period spent on remand by the appellant was not considered, thereby occasioning gross miscarriage of justice. - 4. The trial Judge erred in law and fact when he passed a and excessive sentence of 35years manifestly harsh imprisonment against the appellant, thereby occasioning gross miscarriage of Justice.

#### **Representation** 25

At the hearing of the Appeal, the appellant was represented by Ms Angella Bahenzire, on State brief. The respondent was represented by Mr. Sam

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ank<br>Tren.

$\mathsf{S}$

Oola, Senior Assistant Director of Public Prosecutions. Both counsel applied to court to rely on their written submissions, and the application was allowed.

## **Case for the appellant**

Ground 1: $\mathsf{S}$

That the trial Judge erred in law and fact when he did not cite the law upon which he based his conviction of the appellant for the offence of murder.

Regarding the duty of the first appellate court, counsel for the appellant cited the case of Mulingande Zyedi versus Uganda; Criminal Appeal No. **039 of 2013.** He submitted that the trial Judge did not specify the offence and section under which the appellant was being convicted. She cited a portion of the judgment where the trial judge stated as follows:

> "... I am convinced that the prosecution has proved its case against the accused beyond reasonable doubt. All the circumstances of the case leave me with no other reasonable hypothesis except that the accused planned to kill the deceased ad indeed caused his death and them pretended to call for help. I find him guilty of murder and will not agree with the opinion of assessors for the reasons I have given. The accused is convicted of murder as charged."

She argued that the conviction contravened Section 86 (3) of the Trial on Indictment Act which requires that in case of a conviction, the judgment shall specify the offence with which, and the section of the written law under which the accused person is convicted. She cited the case of Mulingande Zyedi v Uganda; Criminal Appeal No. 039 of 2013, arising

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from Criminal Case No. 283 of 2012, where the trial judge did not specify the offence and section under which the appellant was being convicted, and that it contravened section 86 (3) of the TIA. That the Court of Appeal found that the conviction was passed by the trial judge in error and it was accordingly set aside.

$\mathsf{S}$

She submitted that much as the trial judge specified the offence with which the appellant was convicted, he did not cite the law under which he convicted the appellant. She prayed that this Court finds that the learned trial judge erred in not stating the law and sets side the conviction.

Ground 2: 10

> That the trial Judge erred in law and fact when he convicted the appellant for the offence of murder on uncorroborated circumstantial evidence, thus occasioning a miscarriage of justice.

> Counsel for the appellant relied on the case of Oryem Richard vs Uganda;

Criminal Appeal No. 22 of 2014, which provides the duty of the first 15 appellate court. She submitted that the learned trial judge relied on the evidence of PW1 who at the time of the incident was at the lake but never saw the deceased and the appellant fight and was only attracted by the appellant's alarm calling for help. Counsel contended that the freshly damaged ore talked about by PW1 was not exhibited in court, and it was 20 not explained whether the ore was freshly broken and where the other part was. That it was not explained how possible it was for the appellant to rely on a broken ore for his fishing activities. Further, that the appellant stated that he did not recognize the ore since his got lost in the water. That the appellant's defense was out rightly rejected yet there was no evidence 25 adduced to link him to the ore.

$\overline{4}$

$\frac{8x}{4}$ <br>Tkon.

Counsel submitted that as it had been stated by the assessors, it was possible that the deceased could have hit himself on a rock after falling off the boat into the water. That as such, the conviction of the appellant based on the uncorroborated circumstantial evidence of the prosecution should be set aside and the convict released from prison.

## Ground 3:

$\mathsf{S}$

The Trial Judge erred in law and fact when he passed an illegal sentence of 35 years' imprisonment against the appellant, whereby the law which the appellant was convicted was not cited and the period spent on remand by the appellant was not considered, there by occasioning gross miscarriage of justice.

Counsel for the appellant referred to the case of Rwabuganda Moses Vs Uganda; Supreme Court Criminal Appeal No. 25 of 2014, on sentencing. She submitted that the trial judge sentenced the appellant to 35 years' imprisonment, yet he was a first time offender who spent 5 years in prison. Counsel stated that the period spent on remand was not considered when sentencing the appellant. It was her view that the sentence was illegal under the law.

## Ground 4:

The Trial Judge erred in Law and fact when he passed a manifestly harsh $20$ and excessive sentence of 35 years' imprisonment against the appellant, thereby occasioning gross miscarriage of justice.

Counsel cited the case of Kyalimpa Edward v Uganda; S. C. Criminal Appeal No. 10 of 1995, where the Court laid down the principles that govern the interfering of a trial court's sentence by an appellate court.

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Counsel for the appellant referred to the case of Anguipi Isaac alias Zako Vs Uganda; Criminal Appeal No. 281 of 2016 arising from the judgement of the High court at Arua dated 30<sup>th</sup> August 2016 in Criminal Session Case No. 0106 of 2012. She submitted that relying on the consistency principle and putting into consideration the aggravating and mitigating factors, this Court reduced the appellant's sentence from 26 years to 18 years and 8 months' imprisonment. That the appellant in that case was convicted of murder but court reconsidered the aggravating factor of the inhuman manner the offence was committed by the appellant and the mitigating factors, that included the appellant being 35 years of age and therefore a relatively young man capable of reforming, and a first time offender, bread winner for his two young children and that he was remorseful and prayed for leniency.

She prayed that the mitigating and aggravating factors as submitted by prosecution and defense counsel be re-evaluated, and the sentence 15 substituted with such lesser one as the court may deem fit.

# **Case for the respondent.**

$\mathsf{S}$

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Counsel for the respondent opposed the first two grounds of appeal. He handled them together. He submitted that whereas the trial judge did not recite the section of the law under which he convicted the appellant, the omission did not occasion a miscarriage of justice.

On ground 2, counsel for the respondent stated that the law on circumstantial evidence is clear. He referred to Simoni Musoke v R (1958) EA 715 at 729, and submitted that in a case depending exclusively upon circumstantial evidence, the court must find before deciding upon conviction, that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable

se<br>and<br>Tun.

hypothesis than that of guilt. That the circumstances must be such as to produce most certainty to the exclusion of every reasonable doubt.

He argued that it was neither a legal requirement nor a rule of practice that circumstantial evidence should be corroborated in order to support a conviction. That with or without corroboration, the court could convict on circumstantial evidence. He submitted that the trial Judge was alive to the fact that the case was wholly based on circumstantial evidence and he analyzed all the aspects of that evidence and found that it proved beyond reasonable doubt the offence of murder against the appellant. He invited court to consider the following pieces of evidence which, put together, incriminated the appellant, viz:

a) The appellant and the deceased traveled together in one boat;

- b) The appellant made an alarm and when PW1 responded and asked why the alarm, the appellant replied that his colleague had fallen in the water and sank. - c) The appellant did not tell PW1 or any of the prosecution witnesses that their boat had been hit by a hippo. He only raised it for the first time in his defense before the trial court. The claim was an afterthought. - d) PW1 got the appellant from his boat. This contradicted the appellant's evidence that the boat had turned upside down. If the boat was upside down in the water, there is no way the appellant would be inside it. - e) PW1 found a broken piece of oar (a piece of wood used to row a boat) in the appellant's boat. PW1 was not challenged at all in crossexamination. His evidence contradicted the appellant's claim that he could not recognize the oar and that his own oar got lost in the water.

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$\frac{5k}{1km}$ .

$\mathsf{S}$

If the appellant's oar got lost in the water, then the only reasonable inference to draw would be that the one found in the boat by PW1 belonged to the deceased. The oar was recovered by PW2 and later handed over to PW4 who exhibited it. This piece of evidence further contradicts the appellant's evidence that the boat was upside down in the water. If that were the case, the broken oar would not be in the boat.

- f) Injuries on the deceased's body. All the prosecution witnesses saw injuries on the deceased's head. Exhibit PE1 (post-mortem report) showed the body had contusion measuring approximately 10cm× $8cm \times 3cm$ on the right temporal part of the head, depressed skull fracture on the left side of the forehead and abrasion on the left eye orbit- lower border. The cause of death was severe cerebral concussion as evidenced by the injuries noted. The doctor observed that a blunt heavy object must have been used to hit the head of the deceased. It is important to note that the post- mortem report did not indicate that the deceased died due to drowning. This evidence contradicts the appellant's evidence that the deceased fell in water and then sank. - Counsel contended that the above evidence, taken as a whole, pointed to 20 the appellant as the person who inflicted the injuries on the deceased and these caused his death. That the hypothesis that the deceased died after drowning when a hippo hit the boat in which he and the appellant were sailing/traveling had been disproved. He prayed that this ground be dismissed. 25

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### Ground 3

$\mathsf{S}$

Counsel observed that ground 3 was not properly drafted but conceded that the trial judge did not strictly consider the period of 5 years the appellant had spent on remand as required by Article 23 (8) of the Constitution of the Republic of Uganda. He cited a portion of the sentencing ruling where court stated:

"Sentence

Accused is sentenced to 35 years imprisonment as a first offender who has spent 5 years on remand."

He submitted that the trial judge did not demonstrate that he considered $10$ or took into account the period the appellant had spent on remand. Citing the authority of Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No.25 of 2014, counsel stated that the resultant sentence was illegal. He invited this court to invoke its powers under Section 11 of the Judicature Act to determine the appropriate sentence against the appellant 15 in the circumstances.

He submitted further that in the **Rwabugande case**, the appellant hit the deceased twice on the head using a herdsman's stick following a scuffle. The deceased sustained injuries from which he died. The appellant was convicted of murder. The Supreme Court sentenced him to 21 years' imprisonment after deducting the period of 1 year he had spent on remand. it was counsel's submission that a sentence of 30 years' imprisonment against the appellant would be appropriate in the circumstances. The period of 5 years spent on remand by the appellant should be deducted. He thus prayed that the appellant be sentenced to 25 25 years' imprisonment, to commence on the date of conviction.


$\overline{9}$ ### Ground 4

Counsel submitted that having conceded on ground 3, ground 4 became redundant and did not merit his consideration. He accordingly prayed that the appeal against conviction be dismissed and the appeal against sentence be allowed in the terms proposed.

$\mathsf{S}$

## **Courts Consideration**

## Duty of the appellate court

It is our duty as the first appellate court to re-appraise the evidence at the trial court and come to our own conclusion. {See Rule 30 (1) (a) of the

Judicature (Court of Appeal) Rules}. However, in doing that, we have to 10 bear in mind that we did not have the opportunity to see and/ or hear the witnesses as they testified. {See Selle and Another Vs Associated Motor Boat Co. [1968] EA 123; Pandya vs R. [1957] EA 336; Ruwala vs R [1957] EA 570; and Kifamunte Henry vs Uganda Criminal Appeal No. 10 of 1997 (Supreme Court)} 15

Counsel for the appellant raised four grounds of Appeal. However, a keen study of the submissions for grounds 3 and 4 shows no clear distinction between the two grounds. We shall therefore handle grounds 1 and 2 separately, and grounds 3 and 4 together.

#### Grounds 1 20

The gist of this ground is that the learned trial judge did not cite the law under which he based his conviction of the appellant for the offence of murder. In convicting the appellant, he stated thus:

> "I am convinced that the prosecution has proved its case against the accused beyond reasonable doubt. All the circumstances of

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the case leave me with no other reasonable hypothesis except that he accused planned to kill the deceased and indeed caused his death and then pretend to call for help. I find him guilty of murder and will not agree with the opinion of assessors for the reasons I have given.

The accused is convicted of murder as charged." (Sic)

Counsel argued that the above conviction contravened Section 86 (3) of the Trial on Indictment Act (TIA) which provides that:

# "(3) In the case of a conviction, the judgment shall specify the offence of which, and the section of the written law under which, the accused person is convicted."

A look at the conviction of the appellant reproduced above shows that the learned trial judge stated the offence with which the appellant was convicted but omitted to state the section of the law under which the appellant was convicted. The question begets whether that amounted to such an injustice as to justify setting aside the conviction. Section 34 (1) of the Criminal Procedure Code Act, furnishes us with an answer. It provides:

"34. Powers of appellate court on appeals from convictions.

(1) The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that

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there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." (Emphasis ours)

In the instant case, it is true that the learned trial Judge did not state the law under which he convicted the appellant. The trial Judge, however, stated that he was convicting the appellant of murder. The indictment reflected the offence and the law with which the appellant was charged. 10 We would find that the omission to repeat it at the point of conviction did not occasion a miscarriage of justice. As has been stated by the Supreme Court in; Uganda v Guster Nsubuga & Robinhood Byamukama SCCA No. 92 of 2018, criminal trials are not expected to run like clockwork, short of which they would result in nullification of the entire trial. It is our view 15 that unless an omission has occasioned a substantial miscarriage of justice, any such omission or error should not automatically lead to the setting aside of a conviction. We find no merit in this ground and dismiss it accordingly.

#### Ground 2 20

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This ground challenged the circumstantial evidence that was relied upon to convict the appellant of murder. It is argued for the appellant that the evidence was uncorroborated and should not have been relied upon by the learned trial judge. The law that governs circumstantial evidence is well established.


In this case, the trial court relied on the evidence of PW1, PW2 as well as the post- mortem report to find that the appellant had killed the deceased by hitting him on the head. It is our duty to re-evaluate the evidence and establish whether there was sufficient evidence on which to convict the appellant or not.

$\mathsf{S}$

The prosecution case was premised on the testimonies of PW1, PW2 and the post- mortem report. PW1 testified that he responded to an alarm that was made by the appellant. On reaching his boat, the appellant informed him that his colleague had fallen and sank to death. PW2 testified that his role was to re- arrest the appellant and that he did not visit the scene of 10 the crime. PW3 also testified that he responded to an alarm, and when he arrived at the boat, he found that his colleagues had already arrived. That they suspected that the appellant had killed his colleague, the deceased. That when the deceased's body was recovered, he saw injuries on the forehead and the back of the neck had a big swelling. They then took the 15 dead body to the deceased's father, Buleera.

PW4 received the broken oar (enkassi) and exhibited it. The post-mortem report, PF 4BC dated 7/8/2009, was admitted as an agreed document. Therein, Dr. Mainuka examined the body of the deceased and found it had a contusion on the temperal part of the head, a depressed skull fractured 20 on the forehead, an abrasion on the left eye orbit. Cause of death was stated as severe cerebral concussion due to head injuries caused by a blunt object.

In his defence, the appellant stated that it was true he went fishing with the deceased on the fateful day. That as they were starting the boat, a hippo 25 hit their boat. They had a spare part of a motor vehicle engine and when it

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fell in water, the boat sank. Further, that he fell into the water and held to the boat. His friend, the deceased, fell in the water, disappeared, then got his head out at a distance and sank for good. That he then raised an alarm calling for help.

Counsel for the appellant submitted that the trial judge erred when he $\mathsf{S}$ convicted the appellant for the offence of murder on the basis of uncorroborated circumstantial evidence and so occasioned a miscarriage of justice. The law that governs circumstantial evidence is wellestablished. In the case of Simoni Musoke V R [1958] EA 715, court held that: $10$

> "in a case depending exclusively upon circumstantial evidence, the Court must find before deciding upon conviction that inculpatory facts were incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that of guilt and also before drawing the inference of guilt the Court must be sure that there are no co-existing circumstances which would weaken or destroy the inference of guilt."

In the instance case, in his judgment, at pages 20-21 of the record, the trial judge evaluated the relevant evidence about the participation of the 20 appellant and found thus:

'This case revolves around evidence of the boat having capsized as a result of hitting a hippo in the lake. If there was a hippo that hit the boat or was hit by the boat it is possible that it would throw the accused into the lake waters. However, I have found no evidence of the boat capsizing and overturning. PW1 found

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the deceased's boat floating. The accused was in his boat alone and when PW1 and the late Ntangaala looked around they saw no wild animal that could have been a cause of alarm.

The accused never told them that the boat hit any hippo or that a hippo attacked their boat. The boat was not upside as alleged by the accused because PW1 was able to recover the broken oar from that boat. The boat was already anchored and the accused was just picked and put in PW1's boat and taken to the landing site. This story of a hippo attack is a second thought concocted to derail court from the course of justice.

The cause of death of the deceased as assessed the medical doctor is far from evidence of sinking or drowning. The deceased was hit on the head and neck using a heavy blunt object as a weapon. He did not have complications of breathing or swallowing muck lake water (sic). It is most likely he was hit by the accused who used the oar (enkassi) and/ or the boat anchor made from a heavy motor engine spare part.

Otherwise there was no explanation as to why the accused had a half broken oar. He used the oar to hit the neck and face of the deceased. It is most likely that when the deceased fell in the water and tried to hang on the boat the accused used the heavy metallic anchor to hit his face fracturing the skull. I have no doubt the accused caused the death of the deceased.'

It is the duty of this court to re-appraise the evidence before the trial court and come to its own conclusions on the evidence and the law. We did so 25 and found that PW1 partly testified as follows:

$\frac{1}{\sqrt{2}}$

$\mathsf{S}$

'On 6th August 2009 we were out fishing on lake George. We heard an alarm twice. I was fishing with the late Ntagaala. We drove our boat up to the other boat where the alarm came from. The alarm came from. There was one man, the accused, alone. We asked him why he made an alarm. There was no wild animal to threaten his life. He replied that his colleague had fallen and sank to death. He was referring to his friend he was fishing with. I do not recall his name. we got the accused person from his boat to ours. In his boat we recovered a half spoilt oar (enkassi).

That broken piece was in the boat. We took him and met other fishermen. We handed him over to those fisherman lead by one PEMBENI. Their boat was No. 11 with a damage on the sides.

We left his boat at the very spot where we met tis accused fo that whoever would come looking for the dead body would start there.

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$\mathsf{S}$

I observed a swelling at eh back of the neck. The front part of the forehead had a wound. We brought the body to the landing site and handed it over to police. I and Kakule and many other fishermen. I used to do fishing with Kakule, that is why I easily *remember. That is all.'* (Emphasis ours)

PW1 was cross- examined by counsel for the appellant. He stated thus:

'On 6/8/2009. I was with late Ntangaale. We were only two in our boat that day I and Ntangaale. Before setting off I had seen the accused that very day. I saw the deceased too. That very day.


We had stayed with them together for over 1 month. That long time. The deceased was not so much in fishing. That day they used the same boat. I knew nothing of their inner relationship whether they were friends or enemies or whether they had any dispute. I stay at the landing site. Some accidents occur caused by wild animals or storms. In such circumstances some survive by swimming to safely others die.'

In re-evaluating the evidence, we regard the testimony of PW1 as very important. It establishes that the appellant was in a boat with the deceased, which he does not deny. Further, that he was the person last seen with the 10 deceased. That he made an alarm to which PW1 and other fishermen immediately responded. When they got to the source of the alarm, they found the appellant seated in his boat, alone. His colleague with whom they had gone fishing was not in the boat but there was a piece of a broken oar in the boat. The appellant told the rescue team that the deceased fell in the 15 lake and drowned. He said nothing about a hippo. Neither did he say anything about a storm, which PW1 stated in cross examination was one of the reasons why boats capsize. PW1 emphasised the cause of death. It was not drowning. He emphasised the wounds on the head and the back of the neck. He also pointed out that there was a broken oar in the boat. 20

$\mathsf{S}$

The next witness, PW2, who was a policeman stated thus:

'On the way at Kikorongo we got the body of the person who had died at Kasenyi. It was recovered and was at Kikorongo police post, the doctor did his work there. It was identified by one Alozio Mutsiba to us as that of Bwambale Joseph. I observed abbbressions (sic) on the left eye. It had a wound at the forehead.

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The doctor did the post-mortem and allowed relatives to go ahead and burry. We proceeded to Kasenyi I found accused already under arrest. I re-arrested him and recovered a piece of wooden oar. I did not visit the scene of crime in Lake George. I participated in the recording of statements from witnesses. $I$ interviewed accused. He denied. I charged him with murder for he failed to account for the death of his colleague he had **gone out with to fish.** That is all.' (Emphasis ours)

He was never cross examined by counsel for the appellant. However, in our view, he stated an important piece of evidence in this case; that the 10 appellant was not able to explain how the deceased ended up in the lake dead with injuries on the back of his neck and head. The appellant was the last person seen in the boat with the deceased when he was still alive. Had there been a wild animal, the appellant would have stated so when he was interviewed by the police soon after the incident. Had there been a storm 15 to rock the boat and cause it to capsize, the rescue team would have seen it since they too were on the lake at the time that the incident in which the deceased met his death happened.

PW3, also a fisherman, testified as follows:

'On 6/8/2009 I heard an alarm. I ran to answer the alarm. I found my colleagues already there one was Stephen and another colleague. The alarm was on the lake. They handed over the accused to me. I took him to the fishing site till their boss called. MALIKO, now deceased. Maliko handed him over to the LC1 Chairperson. We suspected he had killed his colleagues using an

se<br>That oar. That was the allegation against him. O knew the deceased as Joseph. We looked for the dead body to his father Buleera.'

In cross examination, PW3 stated thus:

$\mathsf{S}$

'I was in my own boat. The accused and deceased were in their own boat. I cannot tell what happened in their boat. I see several drowned bodies so this was not the first. It swells, changes **colour to whitish colour.'** (Emphasis added)

The evidence of PW3 was also important because, similar to the other witnesses, it proves that there was no evidence of drowning. Though they were not doctors or pathologists, as PW3 states in cross examination, they 10 knew about drowning on the lake. It is common knowledge that fishermen often drown while fishing. They recover each other's bodies quite often. They, therefore, know what the body of a person who dies from drowning looks like. PW3 described it but seemed to be of the view that the body of the person that they retrieved from the lake did not die from drowning but 15 from the injuries on the forehead and the back of the neck.

This leads us to the scientific evidence contained in the post mortem report, which in our view determines the cause of death. It was admitted in evidence without any contest from counsel for the appellant as **PEX1**. At page 30 of the record, **PEX1** shows that the examining medical officer, Dr. Mainuka, found a contusion (approx.. $10cm \times 8cm \times 3cm$ ) on the right temporal part of the head, a depressed skull fracture on the left side of the forehead and an abrasion on the left eye orbit, lower boarder. He established the cause of death as 'severe cerebral concussions as evidenced

by the head injuries noted above (temporal contusion & depressed skull $25$ *fracture (l) temporal bone)'.*


Dr. Mainuka did not report any evidence of drowning. Had the deceased drowned before he sustained the injuries, it would have been evident because he would have ingested a lot of water, and as PW2 stated, the body would have been swollen. This would have been self- evident even to the

rescue team. 5

Given that the appellant was in the boat alone with the deceased when he ended up in the lake dead in the circumstances which he failed to explain to the rescue team and the investigating police officer, we come to the conclusion that since he was the person last seen with the deceased, he is the person who inflicted the injuries that led to his death. The fact that there was still a broken oar in the boat in spite of the appellant's claim that the boat capsized, lends credence to the circumstantial evidence that the injuries on the deceased body were caused by this blunt object found where the appellant was sitting.

Furthermore, the appellant testified on oath to defend himself and this we 15 take that into account. The relevant part of his testimony was as follows:

> 'I have heard allegations and state witnesses. It is all false. On that fateful day we were with deceased. We set off to go fishing at 5:00pm around 7:30pm. We spread out our nets. We wanted to pick source for the evening meal.

> 'As we were starting the boat a hippo hit our boat. We had a spare part of a motor vehicle engine. When it fell in water out boat sank. I fell into the water and held to the boat. My friend Joseph fell in the water. He fell in disappeared, then got his head out at a distance and sank for good. I raised an alarm calling for help.


At around 8:00pm I heard something flapping and making noise on the water. A rescue boat came by and I was rescued and taken to safety. I told them of the accident we had got in our boat. It was already dark and we lost property. I do not know what was lost and what had remained. Joseph was nowhere to be seen and we knew he had drowned.'

From the onset, we note that the appellant's testimony about the circumstances under which he was rescued does not correspond to the testimonies of the two members of the team that rescued him. First and foremost, they did not find a capsized boat when they rescued him. He was 10 sitting inside the boat while it was still upright, not hanging onto it after it capsized as he would have court believe. But the appellant was cross examined by the state. What he stated in cross examination is short, we reproduce it here as follows:

$\mathsf{S}$

'I am Baluku David. - We were hit by a hippo around 7:30pm. We were on the lake near the shore. (estimately 50 meters). I held to the boat. It hit the boat not the individuals in the boat. I do not know what happened to my oar (Enkassi). I was fighting for my own survival. I could not attend to my drowning friend. I was swimming coming from the water I hurt my left side of the mouth. I did not recognize them under darkness. It was late. They were beating me as they rescued me. I set off at 5:30pm. It could not be earlier than 7:30pm. They were not familiar to me. The ones who rescued me. I told police it was the hippo that hit our boat. The relatives of the deceased we following up my case. A sister to the deceased came from Somalia, Nykato and another

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man who owns a motor vehicle. No I was whisked to Kasese before seeing the corpse.' (Sic)

We take cognisance of the rule that the offender is convicted on the strength of the prosecution evidence and not on the weakness of his defence. However, in this case the appellant chose to testify on oath and $\mathsf{S}$ he was cross examined. His testimony must therefore be compared to the prosecution evidence in order to see whether there are clear glitches which can be construed as lies on oath.

In this case, clearly from the evidence of PW1 and PW2, the appellant was not near the lake shore, and certainly not approximately 50 metres from 10 the shore as he stated in cross examination. Had he been near the shore he would not be swimming and struggling to save his own life, given that he was a fisherman. It is also not true, from the preponderance of evidence, that he was in the water when they rescued him; at the point in time when they rescued him he was sitting in the boat. The appellant lied through his 15 teeth when he stated that the boat capsized and he held onto it, because if that was the case, why was an item that was in the boat before it capsized found in the boat? And if his oar fell in the lake, where did this broken piece come from?

- The testimony that he told the police that the hippo hit the boat is also not 20 borne out by the investigating officer. The officer came to the conclusion that the appellant failed to explain how his colleague ended up in the water dead. Had he said something about a hippo, at only 50 metres to the shore, he would have also raised an alarm that there was a hippo in the vicinity - and others on the shore would have seen it. 25

Jun.

It is our resolution that the appellant being the 'person last seen with the deceased' when he was still alive, coupled with the other evidence as reevaluated above, leaves no other explanation but that the appellant was responsible for the deceased's death. On the doctrine of 'last seen with',

- see Musyoka Maingi Nguli v Republic [2019] eKLR and Kurong v Uganda; $\overline{5}$ Court of Appeal Criminal Appeal No. 414 of 2003. Although the trial judge did not advert to this doctrine, he made no error when he convicted the appellant of the offence of murder. We find that the appellant was found in circumstances where he could not explain how the deceased met his death because of the grave injuries that he suffered before he died. It 10 could not have been drowning as the appellant asserts since the medical evidence pointed to death from injuries nit drowning. We, therefore, - confirm the conviction and reject this ground for lack of merit.

## Grounds 3 and 4

The appellant challenged the sentence meted by the trial court for 15 contravening Article 23 (8) of the Constitution. Counsel for the responded conceded to this ground. In resolving this contention, it is worth noting that the impugned sentence was passed on 15<sup>th</sup> August 2014. At that time, the sentencing legal regime was that it was sufficient for court to consider the time spent on remand or show that the period has been taken into 20 account. There was no need for arithmetical deduction. [See Kizito Senkula vs. Uganda SCCA No.24/2001; Kabuye Senvawo vs. Uganda SCCA No.2 of 2002; Katende Ahamed vs. Uganda SCCA No. 6 of 2004 and Bukenya Joseph vs. Uganda SCCA No.17 of 2010; which held that "taking into consideration of the time spent on remand does not necessitate a 25 sentencing Court to apply a mathematical formula."]

$\overline{23}$

ank<br>Im.

In this case, the learned trial Judge stated that:

"Sentence

Accused is sentenced to 35 years imprisonment as <sup>a</sup> offender who has spent 5 years on remand." first

<sup>5</sup> He clearly was alive to thc need for considering the period spent on rcmand, as such, we cannot fault him for not mathcmatically dcducting it from the sentence he meted out since he was not required to at thc time. This court clarified in Sebunya Robert & Anor v Uganda; Criminal Appeal No. 58 of 2016, that the authority of Rwabugande (supra) requiring mathcmatical dcduction did not have retrospective effcct on sentcnces that werc passed before it. 10

We would accordingly find that the learned trial judge had committed no error in sentencing the appellant the way he did. We would answer this ground in the negative.

Having found as we have on the above grounds, we dismiss this appeal and order thc appellant to continue serving his sentence. 15

Dared at Forr Portal this ...35... . Day ot ..fu.6V\$.7.............'zoz'l

Richard Butecra Deputy Chief Justice 20

<sup>C</sup> c ulyag a

2s Justic <sup>o</sup> AppeaL

Eva K. Luswat Justice o peal

$25.08.2023$ Bahenzire Ingella-for the app. Sam pola-for the resp. Appellant - Present via. 200m Vastine-C. C. $L$ solimbula - 1.7. No. 16827 Cpl. Anganyira Sumon-Prison. COURT: Judgment delivered. Appeal dismissed. Appellant to continue serving sentence.

Tentral

$26 - 98 - 2023$ .

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