Biryomumisho v Uganda (Criminal Appeal 406 of 2019) [2025] UGCA 40 (13 February 2025)

Full Case Text

#### 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Cheboion Barishaki, Hellen Obura & Eua K. Lusu.tata, JJA)

### CRIMINAL APPEAI NO. 406 OF 2019

#### BIRYOMUMISHO DIDAS ALIAS YOUNGER APPELLANT

#### VERSUS

UGANDA. .. RESPONDENT

(Appeal from the decision of the High Court at Mpigi before Hon. Justice Masalu Musene) in Ciminal Case No. 39 of2019)

#### JUDGMENT OF COURT

The Appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. He was tried, convicted and sentenced to 17 years' imprisonment. 15

The facts admitted at trial are that on the 25th May 2O 15, the deceased's mother, Nansubuga Shakira, left the deceased, Jovan Katumba (aged 5 years), in the custody ofthe Appellant. The Appellant locked up the house where the deceased

was, and he left the deceased in the house. At about 10 pm, the Appellant gave the key to Nakalema, who, in the presence of Kyomugisha Eva, opened the door ald found the deceased in critica-l condition. He was rushed to Nabbingo Medical

5 Center, where he was pronounced dead on arrival. The Appellant was arrested, charged, and sentenced to 17 years' imprisonment.

Dissatislied with the decision of the trial Judge, the Appellant appealed to this Court on the following grounds:

- 1. Ttlat the leamed tiol Judge ened in law and fact in failing to consider and or properlg eualuate and uteigh euidence laid before the Court, thereby arriuing at a urongful determination in conuicting and sentencing the Appellant. - 2. The leorned tial Judge erred in lant and fact in reaching a final detennination of the case in the absence of keg euidence or keA witnesses. - 3. The leamed tial Judge erred in law ond fact in shifiing the liabilitg and obligations of the burden of proof begond reasonable doubt (stondard of proofl upon the Prosecution and the Prosecution euidence and laid such burden to the Appellant that diminished his final determination of the case. - 4. The learned trial Judge erred in la u.t and fact u-then he conuicted the Appellant of this offence in the obsence of euidence to proue all the essential ingredients of the offence. - 5. Tlnt the learned trial judge erred in law and fact tDhen she relied on the Police identificotion report that uas not conducted and obtained uide the established set of standards and lau, thdt she utilized this report to determine the case.

- 6. That the plea of guilt and or bargain LUas irregular because the charge u\_tas not exploined in the langaage understood, the ingredients of the offence Luere not presented, the plea uos not uneEtiuocal, the facts u.tere not read back for a final consent, and the plea taas not obtained under the set standards in Adon Vs Republic 1973 E. A. 5 - 7. The sentence of imprisonment for 2O aears t as harsh and excessiue in the circumstances, ond tlte learned trial judge erred in laut and, in fact, uhen he ignored to consider important matters or circumstances that he ought to hnue considered before passing the sentence. 10

### Representatlon.

At the hearing of this Appeal, Mr Stephen Birikano represented the Appellant on state brief. In contrast, Ms Hope Caroline Nabasa, Principal Assistant Director of Public Prosecutions and Ms Aleto Innocent, State Attorney, represented the Respondent. The Appellant appeared via video link from Kigo Prison. 15

## Appellant's submisslons

Although the memorandum of appeal had seven grounds, as enumerated above, Counsel for the Appellant, in his submissions, listed and argued five grounds, abandoning the fifth and sixth grounds. The first, second, third, and fourth grounds of appeal were argued together. 20

Counsel submitted that the prosecution's evidence that the deceased was strangled was not credible because none of the witnesses saw the Appellant strangling the deceased and linking him to the commission of the offence.

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Counsel further submitted that the trial judge ignored the fact that the Appellant was the bofriend of the deceased's mother and that circumstaltial evidence should not have been admitted. He relied on the case of Bgaruhanga Eodorl Vs Uganda, SCCA iVo. 78 of 2OO2, for the proposition that circumstantia-l evidence is reliable when the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of gui1t. 10

Counsel submitted that the fact that the Appellant was the boyfriend of the deceased's mother should have destroyed the inference of guilt in the absence of witnesses linking the Appellant to the murder.

On the issue of the sentence, Counsel submitted that the sentence imposed was harsh. He proposed that the Appeliant be sentenced to 1O years' imprisonment. He cited the case of Abaastr & Anor as llganda Crlmlnal Appeal No. 33 of 2O7O, where the Court stated the specific circumstances under which the appellate Court is allowed to interfere with the sentence of a trial Court. The circumstances are that the sentence is illegal, founded upon a wrong principle of the 1aw, or harsh and marrifestly excessive. 15 2A

Counsel further cited the case of Blkanga Daniel u |tganda, Court of Appeal Crlmlnal Appedl No. 38 of 2OOO, to show that the age of an accused person is always taken into account before a sentence is imposed and that the Appellant's chances of reforming into a responsible citizen were high. He prayed that the sentence be reduced to 1O vears.

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### 5 Respondent's submissions

Counsel for the Respondent raised a preliminary point of law that the grounds of Appeal offended Rule 66(2) of the Rules of this Court because they were not concise but rather general and argumentative, Counsel cited the case of Sseremba Dennis Vs Uganda, Crimlnal Appeal No. 48O oJ 2O77, where this Court struck out two grounds of appeal for offending the above rule. Counsel prayed that the court applies the same principle to strike out the appeal.

On the merits of the appeal, counsel submitted that the Appellant had failed to demonstrate the alleged failure by the trial judge to evaluate and weigh the evidence. That the trial judge was alive to the essential ingredients ofthe offence of murder, namely, the Death of Jovan Katumba, the death was unlawful, it

occurred as a result of malice aforethought, and that the appellant participated in the cause of death. 15

Counsel referred the court to page 28 of the record of appeal, where the postmortem report (PE1) and the testimonies of PW1, Nakalema Kulusum, pW2 Kyomuhendo Eva, PW3 Muhumuza Reuben, and the Appellant a-11 confirmed the death of Jovan Katumba ot 2515 /2015. Regarding the unlawful cause of death, the Respondent referred to the evidence of PW1 and PW2 on pages 9 to 10 and 13 of the record of appeal where the deceased's mother asked pW1 to check on the deceased at home and PW1 found the door locked. Shortly, the Appellant ard PW2 found PW1 at the door and the Appellant handed the key to pWl, who

opened the door and saw the deceased with blood coming out of the mouth. pW1 25

5 saw signs of strangulation on the deceased, while PW2 saw scratches on the neck of the deceased. The Respondent further referred the Court to Page 28 of the record of appeal, where the judge relied on the evidence of PW1 and PW2 to convict the Appellant rightly.

On malice aforethought, the Respondent's Counsel referred to pages 29 and 30 of the record of appeal, where the learned trial Judge considered the part of the body ofthe deceased that was targeted, the neck, and concluded that the manual strangulation, as shown in the post-mortem report, was intended to cause death, which was proof of malice aforethought. 10

On participation of the Appellant, Counsel for the Respondent referred to pages 30 to 32 of the record of appeal where the judge evaluated the circumstantial evidence, namely; the open dislike ofthe deceased by the Appellant, the fact that the deceased was left in the custody of the Appellant on the day he met his death, the state of the deceased when PW1 opened the house after the Appellant handed her the keys and the Appellant's attempt to flee when the deceased was at the hospital prompting PW1 to alert the police. Counsel cited the case of Akbo;r Godl Vs Uganda" Criminal Appeal No, 3 oJ 2073, on the principle upon which circumstantial evidence mav be used to convict. 15 20

Regarding the sentence, Counsel for the Respondent submitted that the Appellant had not demonstrated how the sentence was harsh and excessive. In light of the aggravating circumstances, the appellalt was a stepfather to the deceased, who he was supposed to protect, but instead strangled him. The 17

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5 years handed to him were not manifestly harsh and excessive. The trial judge had properly exercised his discretion within the precincts of the law and invited this Court to maintain the sentence of 17 years' imprisonment and dismiss the appeal.

# Appellant's Submissions in rejoinder.

- Counsel for the Appellant submitted that Counsel for the Respondent had not pointed to the particular ground which offended rule 66(2) of the Court ofAppeal Rules and how it does so. He invited the court to consider Article 126(2)(e), which enjoins the court to administer justice without undue regard to technicalities. Counsel relied on the case of Ndgagurna Vs, Ugand.a, Criminal Appeal No. 10 - 263 of 2006, where this court overruled an objection challenging the framing of the grounds of appeal, holding that the grounds sufficiently set out the objection to the decision appealed against. He prayed that the objection be overruled and the matter be heard on merits. 15 - On the merits of the appeal, Counsel submitted in rejoinder that prosecution evidence was based on hearsay and speculation that the Appellant committed the offence because he was living with the deceased and the deceased's mother. Counsel referred to page 2O of the record of appeal where the Appellant found the deceased unwell and rang the mother to inform her, but in the meantime, rushed the deceased to a clinic with the help of neighbors. Counsel submitted that a denial by the accused was subject to being disapproved by the prosecution evidence rather than being treated as evasive by the trial judge. 20 25

s Regarding the sentence, Counsei submitted that the remand period was three and a half years, not three years, which the trial judge deducted. The period ran from 29 May 2015, when he was first remanded, to 2 November 2018. Six more months should be credited to the Appellant. Counsel further referred to page 33 of the record of appeal, where the Appellant was noted to be a first-time offender, 10 remorseful, ar:.d, 20 years old at the time. He submitted that a sentence of 20 years of imprisonment was harsh and excessive and should be reduced.

### Court's Consideration

This is a first Appeal, and as such, this Court is required under RuIe 3O(1)(a) oJ the Judicafitre (Court ol Appedl Rules) Dlrections to re-appraise the evidence 15 and make its inferences on issues of law and fact while making allowance for the fact that we neither saw or heard the witnesses. See: Pandga V R [1954 E. A 336, Bogere lltfoses Vs. Uganda, Supreme Court Crlmlnal Appeal No.7 ot 7997 and K{amunte Vs. Uganda, Supreme Court Crimino'l Appedl No.7O oJ 1997.

- 20 The prosecution must prove the case against the accused beyond a reasonable doubt. The burden does not shift to the accused, who can only be convicted based on the strength of the prosecution case. When pleading not guilty, the accused unequivocally challenges every essential ingredient of the offence, and the prosecution must irrefutably prove all ingredients beyond reasonable doubt. - 25 Proof beyond reasonable doubt does not mean proof beyond a shadow ofdoubt. The standard is met once all evidence suggesting the accused's innocence creates 5 only a fanciful possibility, not a probability. (see Miller v. Mlnlster of Penslons [1e44 2 ALL ER 37A.

## Prellminary ObJection

Counsel for the Respondent invited this court to strike out the grounds of appeal because they were general and argu mentative, thereby offending rule 66(2) of the Court of Appeal Rules. Counsel for the Appellant argued that the grounds were concise. He also invited the Court to apply Article 126(21(el of the Constitution by disregarding the technicality and delivering substantive justice.

## Rule 66(2) of the rules of this court provides that:

"The memorandum of appeal shall set forth conciselA and under distinct heads numbered consecutiuelg, uithout argument or narratiue, the grounds of objection to the decision appeoled against, specifuing, in the cose of a rtrst appeal, the points of laut or fact or mked low and fact and, in the case of a second oppea| the points of lau, or mixed lau ond fact, ulhich are alleged to haue been wrongly decided, and in a third appeal the matters of the lata of great public or general importance u\_ronglg decided."

We have considered the above grounds of appeal in light ofrule 66(2) supra. The first and second grounds of appeal do not point to any specific error of law or fact or both iaw and fact attributable to the trial judge. They are framed in a general nature. This court had to determine related objections in Kuezl & Anor us. Uganda [20241 UGCA 266. A ground of appeat was couched in terms of ,,the

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:; leamed trial Judge ened in law and fact in failing to properlg eualuate the euidence adduced at trial, thereby arriuing at a urong decision".

In striking out the ground, the court held that it did not state the specific evidence the learned trial judge failed to evaluate properly. To answer such a ground would require this Court to guess and attempt to imagine what the appellants felt was the fault of the trial Judge. The justices found that sending the Court on such an expedition was unfair. We hold the same view regarding groundl of this appeal which was drafted in a similar manner.

In KaganJa Hassan us. Uganda [2O2q UefiA 34 this court struck out grounds of appeal couched in similar language as grounds 2 and 3 above for the reason that the grounds did not mention the key absent witness and the ingredient (s) that required that witness to prove them. On the alleged shifting of the burden and standard of proof, the court held that the ground was a general narrative that did not specify the particular ingredient(s) of the offence where the learned tria-l erred by shifting the burden of proof from the prosecution to the appellant (defence). We hold a similar view of grounds 2 and 3 above. 15 20

We have further reviewed ground 4 of the appeal and find it too general. It does not point to any missing evidence for which the court found any particular ingredient proved. The ground requires this court to peruse the evidence to find possible errors concerning every ingredient for consideration. This

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5 notwithstanding, the memorandum of agreed facts where the facts of death by unlawful means (manuai strangulation) were not in dispute.

We uphold the preliminary objections and strike the 1"t, 2nd,3td, and 4th grounds of appeal.

## Ground 7.

As noted earlier, grounds 5 and 6 ofthe appeal were abandoned. 10

In ground 7of the appeal, the tria-l judge is faulted for imposing a harsh and excessive sentence on the Appellant.

It is now settled law that for an Appellate Court to interfere with the discretion of the trial Court while passing sentence, it must be shown that the sentence is

illegal or founded upon a wrong principle of the 1aw or where the trial Court failed to take into account an important matter or circumstance, or made an error in principle, or imposed a sentence which is harsh and manifestly excessive in the circumstances. See Klualabge Bentard vs. Uganda" Suprerne Court Crlmlnal Appeal No. 743 of 2OO7, Kgaltmpa Edutard V Uganda" Supreme Court Crlninal Appeal No.lO of 1995. 15 20

The principle of consistency is also vital in sentencing. Principle No. 6(c) of the (Sentencing Guidelines for Courts of Judicature) (Practice)Directions, 2013 provides that: "Euery Court shall uhen sentencing an offender take into account the need for consistencg with appropiate sentencing leuels ond other means of dealing uith the offender in respect of similar offences committed in similar

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5 circumstances. " Still, the principle must be applied cautiously, considering that offences are not committed under the same circumstances, thus rendering each unique and peculiar, as held rn Mbunga Godfreg Vs. Uganda" Supreme Coutt Ct-lmlnal Appeal No.4 of 20 I 1.

We have reviewed the record of appeal. The sentencing notes on page 33 reflect as follows: 10

> "I haue carefullg considered the mitigating factors raised bg counsel Kumbuga for the conuict. I also sympathise uith the circumstances under ulhich the conuict liued, but an offence utos committed. And as counsel for the state submitted, the conuict killed an innocent goung child. And despite uhateuer circumstances, uLhether drunk or not, life is a God-giuen gifi which should not be taken autay uith impunitg. I shall neuer less toke into account the fact that the conuict is a first offender and the period of remond. All in all, insteod of 20 gears, I subtract three years of remand. I do herebg sentence the conuict to serue 17 gears' impri-sonment. "

Counsel for the Appellant, in his rejoinder submissions, challenged the sentence on two fronts. One was a miscalculation of the period spent on remand as 3 years instead of 3 years and six months, and the other was the failure to take into account the appellant's age, which was 20 years at the time of the offence. 20

From the sentencing notes above, the trial judge did not consider the appellant's age. At 20 years old, the Appellant was a youthful offender as defined in Rule 4 ol the sentencing guidelines. A youthful offender is between 18 and 35 years

5 old. The young age of an offender has severally been held to be a mitigating factor. In Kabatera Steoen Vs, llganda, Court of Appeal Crlmlnal Appeal No. 723 of 2OOl quoted with approval in Blkango Do,niel Vs Uganda [2OO5] IIGCA 75, the Court held that the trial judge did not consider the appellant's age. ". . . u)e are of the opinion that the age of an accused person is alutays o moterial considerotion that ought to be taken into account before a sentence is imposed." 10

We agree that this materia-l factor of age was cruciai in the determination of the appropriate sentence.

Regarding the period spent on remand, Counsel for the Appellant prayed that this court credit the appellant with another six months. Counsel for the Respondent did not reply to this. 15

The record of the Magistrates Court where the Appellant lirst appeared in precommittal proceedings shows that he was first arraigned on June 4, 2015. He was convicted and sentenced on November 2, 2018. Therefore, the remand

period was 3 years, 4 months, and 29 days. The trial judge deducted 3 years only, thus failing to credit the correct period to the Appellant. 20

For the above reasons, we shall set aside the Appellant's sentence and resentence afresh as provided in Sectton 77 oJ the Judlcadtre Act.

The 3,d schedule to the sentencing guidelines prescribes the sentence range for murder to be between 30 years and death. The starting point is 35 years' imprisonment, which may be enhanced or reduced after considering the 25

- 5 mitigating and aggravating factors. The mitigating factors on the record include the facts of the age of the Appellant at the time he committed the offence. He was 20 years oid, he used to care for the deceased, including taking him to school, he was remorseful, he committed the offence while drunk and was a frrst-time offender. - The aggravating factor was that the deceased was only six years old and needed love artd protection. 10

We have considered the above factors and find that mitigating factors outweigh the aggravating factors. We have reviewed sentences in related offences. In Balanda Edrisa V Uganda" Crimtnal Appeal No.448 oJ 2O78, the Appellant was sentenced to 25 years and 8 months for the murder of a 4-month-old chi1d.

In Okoa Jlmmg Vs Uganda (2019) UGCA 94, ttre Appellants in that Appeal were convicted of murder ald sentenced to 25 years' imprisonment and on appeal, the sentence was set aside and substituted with 18 years'imprisonment.

ln lfrugabe u Uganda (Crtmtnal Appeal 218 of 2015) [20231 UGCA 274, the Appellant struck a 9-month-o1d baby with a panga in the head and died; he was sentenced to 15 years' imprisonment. 20

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- Given the circumstances of this case, we find a sentence of 20 years' $\mathsf{S}$ imprisonment appropriate. We deduct 3 years, 4 months, and 29 days spent on remand as required under Article 23(8) of the Constitution. The Appellant shall serve a term of imprisonment of 16 years, 7 months, and 1 day, to be served from the date of conviction. - We so order. $10$

Delivered at Kampala this....................................

**Cheborion Barishaki**

**JUSTICE OF APPEAL**

len Obura

**JUSTICE OF APPEAL**

Éva Luswata

JUSTICE OF APPEAL

$20$