Bidongo and 2 Others v Uganda (Criminal Appeal No. 216 of 2016) [2023] UGCA 113 (29 March 2023)


THE REPUBLIC OF UGANDA

# THE COURT OF APPEAL OF UGANDA AT ARUA

## **CORAM: CHEBORION; MUGENYI AND GASHIRABAKE, JJA**

## **CRIMINAL APPEAL NO. 216 OF 2016**

### 1. BIDONG ZENONE

2. ORUIBENG FRANCIS

3. OKURMU RICHARD ....................................

## **VERSUS**

<table>

UGANDA ...................................

(Appeal from the High Court of Uganda at Arua (Mubiru, J) in Criminal Case No. 130 of 2014)

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### JUDGMENT OF THE COURT

### A. Introduction

- 1. Messrs. Bidong Zenone ('the First Appellant'), Francis Oruibengu ('the Second Appellant') and Richard Okurmu ('the Third Appellant) were, on their own pleas of guilt, convicted for the murder of Mr. Samuel Dokcen ('the Deceased') at Katera village, Zombo District. - 2. On 10h August 2016, the High Court sitting in Arua (Mubiru J) sentenced all the Appellants to the death penalty, a sentence that they now contest for (in their view) being harsh and excessive. The sole ground of appeal is that'the learned judge failed to correctly apply the test for imposing a discretionary death penalty, failed to give any or any proper weight to the appellants' mitigation and imposed a sentence of death which was unduly harsh and manifestly excessive in the circumstances.' - 3. At the hearing, Mr. Samuel Ondoma of M/s Alaka & Co. Advocates appeared for the Appellants while the Respondent was represented by Ms. Vicky Nabisenke.

#### B. Factual Background

- 4. On 15th July 2016, when the matter first came up for plea taking before the trial court, all three Appellants pleaded 'not guiltl to the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120. When the case subsequently came up for hearing on 8th August 2016, the First and Third Appellant elected to change their plea to one of guilt, while the Second Appellant maintained his plea of not guilty on the premise that he did not intend to kill the Deceased. Upon the Prosecuting Attorney reading a summary of the facts of the offence for which the Appellants had been indicted, the First and Second Appellants maintained their plea of guilt. Their sentencing was then stood over to allow for the trial of the Second Appellant to proceed. - 5. The summary of the case in respect of which the First and Third Appellants affirmed their plea of guilt is as follows. On 5th February 2012 at about 9.00 am, the deceased was in his compound with three of his children when he was attacked by

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the Appellants armed with bows, arrows, pangas and sticks. They grabbed the deceased and beat him randomly, then threw him down and cut his neck and head leading to his immediate death. The First Appellant thereupon ran to the Police (Station) and handed himself over, while the Second and Third Appellants were subsequently apprehended by members of the community and handed over to the Police.

- 6. Meanwhile, after hearing the testimony of four prosecution witnesses, the Second Appellant did on 9th August 2016 similarly opt to change his plea to one of guilt. The gist of that prosecution evidence was as follows. A medical officer (PW1) attested to having conducted a post mortem on the Deceased, following the identification of his body by his son, Elias Binega (PW2). The body was reported to have had 'a deep cut wound on the occiput (the back of the head) and on the anteior lateral left neck and the posterior lower left arm', and the cause of death was found to have been internal bleeding and 'a compromised airuay due to complete cut of the trachea.' - 7. On his part, PW2 attested to the Appellants having witnessed the First and Third Appellants holding his father facing downwards while the Second Appellant cut his head and neck with a long curved knife similar to a panga. lt was his evidence that it was the Second Appellant that had cut the deceased's throat while the First Appellant cut his arm. The murder of the deceased by a cut to his head and neck was corroborated by PW3, the deceased's sister-in-law; while PW4, his daughterin-law, similarly corroborated the cutting of the deceased's neck by his attackers. !t is against the foregoing background that the trial court handed down the death penalty to the Appellants.

#### C. Parties' Leqal Arquments

8. lt is argued for the Appellants that the mandatory death penalty was declared unconstitutional in the case of Attornev General v Susan Kiqula & 417 Others (2009) UGSC 61 on account of its non-recognition of the various circumstances

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<sup>I</sup>Also cited as Constitutional Appeal No. 3 of 2006.

under which murders are committed (such as the murderers being first offenders, remorseful etc). Hence the justification for discretion at sentencing for murder.

- 9. lt is proposed by the Appellants that the parameters that would guide the discretionary application of the death penalty have since been laid out in the Law Revision (Penalties in Criminal Mafters) Miscellaneous (Amendment) Act, 2019 and the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 ('the Sentencing Guidelines'), as well as applicable case law. - lO. Section 5 of the Law Revision (Penalties in Criminal Matters) Miscellaneous (Amendment) Act enjoins courts to only pass the death sentence'in exceptional circumstances where the alternative of imprisonment for life or other custodial sentence is demonstrably inadequate.' That legal provision reechoes Guideline 17 of the Sentencing Guidelines that similarly restricts the death penalty to exceptional circumstances in the 'rarest of the rare cases' where the alternative of imprisonment for life or other custodial sentence in demonstrably inadequate. - 11.1n this case, without making any attempt to furnish the Court with copies of the authorities cited, Counsel for the Appellants argues that the restriction of the death penalty to the gravest of circumstances where there is no prospect of the accused person's reform was advanced in the cases of Mbunva Godfrev vs Uqanda. Criminal Apoeal No. 4 of 2011 (Supreme Court) and Kakubi vs Uqanda. Criminal Appeal No. 126 of 2008 (Court of Appeal). - 12. The legality of the death sentence passed in the present case is challenged on the premise that the facts thereof do not fall within the exceptional circumstances envisaged under section 5 of the Law Revision (Penalties in Criminal Mafters) Miscellaneous (Amendment) Act which are opined to entail 'the gravest of extreme culpabilitf; the raresf of the rare cases or other related circumstances. lt is further argued that, in contravention of the same legal provision, the trial court did not establish whether in fact the Appellants were incapable of reform under a custodial sentence before reverting to the death penalty. Counsel urges this Court to apply that two-pronged test applicable to the imposition of a death sentence, that is, in

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exceptional or rare of the rarest cases, and where a custodial sentence is inadequate.

- 13. !t is further opined that the trialjudge ought to have considered as mitigating factors the Appellants' misconceived but firm belief that the Deceased was responsible for the death of their son/ brother hence their uncharacteristic lapse of judgment; the fact of their being first offenders, as well as their pleas of guilt, family responsibilities and remorse at their actions. Additionally, not only was the First Appellant of advanced age of 60 years as at the date of sentencing, he had voluntarily handed in himself after the murder; while the Third Appellant was very young, at 26years as at the same date. - 14.ln Counsel's view, the trial court placed undue reliance on the case of Mugabe vs Uqanda. Criminal Appeal No. 412 of 2009, yet the appellant in that case was a repeat offender that had killed and dismembered a child in retaliation for an earlier rape allegation that had been made against him. Kakubivs Uqanda (supra) and that, like the present Appealwere steeped in perceptions of witchcraft by the deceased persons, are cited in support of the 20-year term sentences proffered in those cases. A sentence of fifteen (15) years'imprisonment is nonetheless proposed as an adequate sentence in the present Appeal, subject to the period spent on remand. - l5. Conversely, the State supports the sentence meted out by the trial judge and vehemently opposed this Appeal. Learned State Counsel relied on the Supreme Court decision in Livinqstone Kakooza vs Uqanda. Criminal Appeal No. 17 of 1993 to argue that an appellate court should only alter the trial court's sentence where the lower court has acted on a wrong legal principle, overlooked some materia! factor or the sentence is manifestly excessive. She did also refer us to this Court's own observation in Birvomumisho Alex vs Uoanda. Criminal Appeal No. 464 of 2016 that 'interfering with the sentence is not a matter of emotions but rather one of law. Unless it can be proved that the trial judge flouted any of the principles of sentencing, then it does not matter whether the members of this Court would have given a different sentence if they had been the one

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trying the appellant.' See a/so Kalvamaowa Samuel vs Uoanda, Criminal Apoeal 189 of 2012 (Court of Appeal).

- 16. We might add thatthe same principles are illuminated in Kvalimpa Edward vs Uoanda. Criminal Aooeal No. 10 of 1995 and Kamva Johnson Wavamuno vs Uqanda. Criminal Apoeal No. 16 of 2000 (both, Supreme Court), to the effect that the Court of Appeal may interfere with a sentence imposed by a trial court in very limited circumstances, where the sentence is illegal, manifestly excessive, premised on the improper exercise of discretion, failure to take into account a material consideration ortaking into account an immaterial consideration, orwhere an error in principle was made by the trial court. - 17. Learned State Counsel contends that the Appellants have not established any illegality or incidence of the flouting of the sentencing principles in the present Appeal. On the contrary, it is opined that the mitigating factors posited by them were duly considered by the trial court but it came to the conclusion that the death penalty was the most suitable sentence in the circumstances of the case. ln her view, no two cases can be similar; the murder in issue presently was in essence a slaughter of a human being in the presence of his family, and there was no need for the courts to await the murder of multiple people in order to invoke the death penalty. Rather, the Appellants having accepted culpability for the murder, the victim's interests would and should take centre stage. - 18. Furthermore, acknowledging consistency as a principle of sentencing as per Guideline 6(c) of the Sentencing Guidelines, Counsel urges this Court to follow judicial precedents that upheld the death penalty in similar circumstances. To that end, she cited Bahemuka William & Another vs Uoanda. Griminal Appeal No. 4 of 2003, where this Court held that the grisly and barbaric manner in which a murder had ensued warranted a deterrent sentence and accordingly upheld the death sentence imposed by the trial court. ln her estimation, the murder in issue before us presently is just as brutal and savage in so far as the Appellants, who are relatives to the deceased, hacked his head and arms and slit his throat as if they were slaughtering an animal; yet even the slaughter of animals in such a manner would offend human sensibilities.

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19.|t is the contention, therefore, that the circumstances surrounding this murder are grave enough to justify the death penalty. The Court was thus invited to uphold the death sentence against the Appellants and dismiss this Appeal. No submissions in rejoinder were forthcoming from learned Counsel for the Appellants.

#### D. Determination

- 20. The law on the powers of an appellate court in an appeal from a sentence, such as is the case presently, is stated in Section 132(1Xb) and (e) of the Trial on lndictment Act, Cap. 23 as follows: - (a) Subiect to this sectiolr -

a

- b. An accused penion may, with leave of the Court of Appeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court,.. - c

And the Court of Appeal may -

- d. - e. ln the case of an appea! against sentence only, confinn or yary the sentence. - 21. lt is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial Court and, while giving allowance for the fact that it has neither seen nor heard the witnesses, come to its own conclusion on that evidence. ln so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. lt is only through such reevaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial Court. See Baquma Fred vs. Uqanda. Criminal Appeal No.7 of 20(M (Supreme Court). - 22.1n Booere Moses & Another v. Uqanda. Criminal Appeal No. I of <sup>1997</sup> (Supreme Court), it was further observed:

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A first appellate court must bear in mind that it did not have the opportunity to see and hearthe witnesses and should, where available on record, be guided by the impression of the trial judge on the manner and demeanour of the witnesses.

23. The trial court in the matter before us rendered itself as follows at sentencing

I have considered all the mitigating factors mentioned above and especially the fact that the accused pleaded guilty and expressed remorsefulness. / must say that there are offences where even all the mitigating factors I have reproduced above coupled with a plea of guifty can hardly mitigate the punishment due to the gruesome manner in which the offence was committed.

24. Citing the decision in Muqabe vs Uoanda (supra), where this Court upheld a death sentence against a thir\$-year-old man that had killed a child in retaliation for a rape allegation made against him by a member of the child's family, the trial court further observed:

> lf ever there was an extremely gruesome death this is one of them where the deceased was practically slaughtered in the presence of his family. The immediate family of the deceased acted honourably in preventing mob justbe to be meted out on the convicts. This was a clear sign of the confidence they had that the law would exact rctribution on their behalf. I know a life can never be adequately compensated, not even with another life but the death penafty remains one of the laviulsenfences for this Upe of crime. The court should not balk out of the duty entrusted to it to exprass public indignation towards some of the extreme modes of perpetration of crime. The maximum penalty for the offence of murder as prescribed by sectbn 189 of the Penal Code Ac{ rc death. This rcpresents the maximum sentence and ls reserve d for the worst of the worsl cases of murder. The convicts betore me committed the offence in the worst of the worst of manners. lt was a honific, brutal, callous, calculated, well planned and pre-rneditated, sense/ess killing. lt is an offence, which even a plea of guilty aupled with the factors the convicts and their counsel have advanced, will not mitigate. /f is one that deserues the death sentence if only to exact retribution for the undignified, brutal and honendous manner in which the deceased was killed and to deter other would be offenders.

25.lt becomes abundantly clear that the trialjudge did address himself to the totality of the mitigating and aggravating factors of the case before him in arriving at the sentence. Whereas the absence of antecedents on record would suggest that the Appellants were indeed first offenders, this Court cannot ignore the observations of the trial judge who had the benefit of hearing the evidence. ln complete

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agreement with the trial court, it is apparent to us that the Appellants had been convicted for an absolutely heinous murder that was executed in a most horrific manner. We do recognise that oral evidence does bring out the reality of a crime in a manner that no written record could ever capture. And yet here is a case where the written record too sufficiently brings alive to this Court the brutality with which a man was horrifically killed by his own brother and nephews. Two of them holding him unto his predicament while the third slit his neck like they would a chicken or goat! All on the mere suspicion of witchcraft?

- 26. We take the view that our society should not so degenerate as to be nonplussed at and brazenly indifferent to a murder so vile, whatever the underlying motivation therefor. The Judiciary to which this Court is beholden exercises judicial power in the name of the people. lt is constitutionally obliged to exercise that judicial power in a manner that is as much in conformity with the law as with the 'values, norrns and aspirations of the people.' See Article 126(1) of the Constitution. lt cannot by any stretch of imagination be contemplated that the values, norms and aspirations of the Ugandan people subscribe to the degree and form of barbarity exhibited by the Appellants. Rather, as quite correctly proposed by the trialjudge, the courts should firmly and unequivocally pronounce themselves on appropriately retributive sentences for criminal offenders. A community that handles and thus seemingly condones the actions of brazen criminal offenders with the proverbial kid gloves can scarcely represent the aspirations of the Ugandan people. - 27. We find no mitigation in the fact of the Appellants having been first offenders given the brutality on shamelessly full display on their first misadventure. One murder of this kind is one too many and need not await another antecedent. That they were blood relatives to the deceased compounds the matter and is totally inexcusable in any right thinking society. - 28. We are satisfied, therefore, that the murder before us presents one of those rarest of the rare cases that would of necessity attract a death penal\$. We thus have no hesitation in upholding the death sentence as passed against each of the accused by the trial court.

I

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### E. Conclusion

29. In the result, the Appeal against sentence is hereby disallowed. The sentences of death as imposed upon each of the Appellants are hereby upheld.

It is so ordered.

29th March $\ldots\ldots, 2022.$ Dated and delivered at Kampala this..

**Barishaki Cheborion Justice of Appeal**

Musingeny,

Monica K. Mugenyi **Justice of Appeal**

**Christopher Gashirabake Justice of Appeal**

Criminal Appeal No. 215 of 2016