Bogga v Uganda (Criminal Appeal 37 of 2020) [2023] UGCA 141 (18 May 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT GULU Coram: Egonda /llf,ende, Bamugemerelre & MulgagonJa,,LIA CRIMINAL APPEAL NO. OO37 OF 2O2O

#### BETWEEN

BOGGA PHILLIP :::::::?:::!il:::::::::::::::::::::::::::!!::!::r:::::::::::r:::::::APPELLANT

#### AND

UGANDA:: 333i:r::::::::r::::i::33!:::3:3133:!:::3::::::::3::3::::3:::l::: RESPONDENT

## (Appeal from the d.eclslon of Oguko Otok, J, dellaered on 7 7th December 2079 ln Arua Hlgh Court Crlmlnal Sesslon Case No. 0797 of 2019)

#### JUDGMENT OF THE COURT

### Introduction

The Appellant was indicted for the offence of murder contrary to sections 188 and 189 of the Pena-l Code Act. He was convicted after a full trial and sentenced to 38 years, 7 months and 26 days' imprisonment.

#### Background 20

The background to the appeal is briefly that the appellant was a cousin to the deceased, Georgina Biwaga. On 9th May 200 1, at Ambere Village, Jupabogga in Nebbi District, a group of about 5O people, including a chief, had gathered to resolve a dispute in which it was alleged that the deceased and others practiced witchcraft. During the meeting the appellant walked in with a panga and attacked the deceased. He cut off her arm at the shoulder and continued to hack at her head. She died on the spot. The crowd scattered and ran from the scene. The appellant was arrested and

arraigned but granted bail in 200 1. He jumped bail and disappeared from the village and was not re-arrested till 2019 when he committed another offence in Entebbe where he had taken refuge.

\

The appellant was then indicted, tried and convicted for the offence of murder and sentenced to 38 years, 7 months and 26 days' imprisonment. Being dissatisfied with both conviction and sentence he appealed to this court on the following grounds:

- 1. That the learned trial judge erred in law and fact when he failed to sum up the law and evidence to the assessors, which occasioned a miscarriage of justice. - 2. That the learned trial judge erred in law and fact when he failed to write and or deliver a reasoned judgment and or decision in law, and thus occasioned a miscarriage of justice. - 3. That the learned judge erred in law and fact when he failed to adequately evaluate the evidence as a whole regarding the participation of the accused and malice aforethought and as a result came to a wrong conclusion, occasioning a miscarriage of justice. - 4. That the learned trial judge erred in law and fact when he relied on the prosecution evidence that was full of contradictions and inconsistencies which were major and pointing to deliberate falsehood and hence came to a wrong decision, occasioning <sup>a</sup> miscarriage of justice. - 5. That the learned trial judge erred in law and fact in disregarding the plausible defence of alibi raised by the Appellant at the earliest stage of the trial, thus reaching a wrong conclusion and occasioning a miscarriage of justice.

6. That the learned trial judge erred in law and fact when he sentenced the convict to 38 years, 7 months and 26 days' imprisonment which is manifestly harsh and excessive in the circumstance.

#### Representation

At the hearing of the Appeal on 28th March, 2023, Mr. Joseph Sabiiti Omara represented the Appellant. Ms. Caroline Marion Acio, Chief State Attorney from the Ofhce of the Director of Public Prosecutions, represented the Respondent. 5

10 15 Ms. Acio raised a preliminar5r objection on a point of law that this appeal was filed out of time without leave to appeal. While Counsel for the appellant conceded that the appeal was filed out of time he prayed that Court extends the time within which to file a Notice of Appeal and to validate the memorandum of appeal that had already been filed, under rule 5 Judicature Act and Rules a5 (2) and 67 of the Rules of this Court. Leave was granted and the appeal was validated.

Subsequently, the submissions as filed by both parties were adopted by the court as the legal arguments of counsel upon which this appeal has been disposed of.

# Duty ofthe Court

- 20 The duty of this Court as a first appellate court, is stated in rule 3O (1) of the Rules of this Court (SI 1O-13). It is to re-evaluate the whole evidence adduced before the trial court and reach its own conclusions on the facts and the law. But in so doing the court should be cautious that it did not observe the witnesses testify. - 25 We have therefore considered the whole of the record that was set before us, the submissions of counsel and the authorities cited and those not

cited that were relevant to the appeal in order to reach our decision on the grounds raised in this appeal.

#### Determination of the Appeal

In his written submissions, counsel for the appellant argued grounds 1 and 2 together. But at the hearing, he abandoned ground 2 to which he $\mathsf{S}$ conceded that the trial judge delivered a reasoned judgment as a result of which the appellant was properly convicted and sentenced for the offence. We will therefore not formally consider ground 2, but it is pertinent to note that the trial judge did not sign the judgment at the point that he was supposed to. Instead, he delivered judgment after which he immediately 10 went into the sentencing proceedings and imposed punishment upon the appellant. He then appended his signature to the sentencing ruling, at page 37 of the record of appeal.

We were of the view that the signature at that point served the purpose as is required by section 86 of the Trial on Indictments Act (TIA). This is 15 because section $139$ (1) of the TIA provides that:

> (1) Subject to the provisions of any written law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice.

We did not think that the failure to sign the judgment at the particular point that it ought to have been done was a crucial error that occasioned 25 a miscarriage of justice in this matter. Pursuant to section 139 (1) and Article 126 $(2)$ (e) of the Constitution, we deemed it fit for the appellant's counsel to abandoned ground 2 and proceed with the rest of the grounds of the appeal.

$\overline{4}$

#### Ground <sup>1</sup>

The appellant's complaint in this ground was that the trial judge erred in law ald fact when he failed to sum up the law and evidence to the assessors, and that this occasioned a miscarriage of justice.

# 5 Submissions of counsel

Mr Omara for the appellant argued that there were no notes on the record to show that the trial judge summed up to the assessors, but instead there was only a heading reading; 'Summing up to the assessors.'That in the circumstances, this Court should order that there be a rehearing of the matter. He referred to section 82 ( <sup>I</sup>) of the TIA and Articie 28 of the Constitution and submitted that conforming with the mandatory procedural requirements is part of the right to a fair hearing. He referred to the decision in Bakuye Muzamiru v Uganda, SCCA No. 56l2OLS.

15 Counsel further contended that though the trial judge failed to sum up the 1aw and evidence to the assessors, he relied entirely on their opinion to conclude that the appellant was guilty. He prayed that this Court finds that the entire trial of the appellant was a nullity, as it was done in Adiga Johnson David v Uganda, Criminal Appeal No. 157 of 2O1O 12O2Ll UGCA.

20 25 He further referred to the decisions in Rev. Father Santos Wapokra v Uganda, CACA No. 2O4 of 2OL2, Ahmed Au Dharamsi Sumar v R [196a] EA 481 and Tamano v R [1969] EA L26 for the matters to be taken into considerations in order for the court to decide whether or not to order a re-trial. Counsel subsequently prayed that no re-trial should be ordered in this case but rather the immediate release of the appellant, unless he is being held on some other lawful charges.

In reply, Ms Acio conceded that there were no summing up notes on the record to show that the trial judge indeed did sum up to the assessors. However, she submitted, the failure to sum up did not occasion a miscarriage of justice to the appellant. She referred to section 3 of the TIA which requires all criminal trials before the High Court to be conducted with the assistance of at least two assessors, and section 67 of the same Act which provides that each assessor shall take an oath impartially to advise the court to the best of his or her knowledge, skill and ability on the issues pending before court.

Counsel further submitted that the provisions of sections 3, 67 and 82(1) of the TIA are couched in mandatory terms (the use of the word shall) and that the presiding judge was duty bound to ensure compliance with them. She went on to submit that failure to record summing up notes is <sup>a</sup> procedura-l irregularity which was not fatal in the circumstances as it did not occasion a miscarriage of justice to the appellant. Counsel relied on Section 3a(1) of the Criminal Procedure Code Act (CPA) and went on to submit that the courts have on several occasions held that irregularities like the deficiency in the record on the assessors summing up notes do not cause a substantial miscarriage of justice. She further referred to the decisions of this court in Mawanda Patrick v Uganda, CACA No. 21O of 2OlO and Byaruhanga Fodori v Uganda CACA No. 24 of 1999. She prayed that this court resolves this ground in favour of the Respondent. 10 15 20

#### Resolution of Ground <sup>1</sup>

We observed from the record that when the case came up for hearing on 11lh December 2079, it was for the fina-l submissions of counsel to be made to the court. Counsel for both parties presented their submissions and according to the record that was placed before us, the submissions run 25

from page 22 to the middle of page 23. This could not, in our opinion have been all that counsel for both parties stated in response to an indictment for murder of the nature that we have before us in this case. The record appears to have been a summary by the trial judge of the submissions that were presented by counsel for both parties.

We further observed that this was not very different from the rest of the record of evidence which was in the structure of question and answer but which too appears to have been abridged by the trial judge. We formed the impression that because the whole of the evidence that was adduced by the prosecution which called 5 witnesses, as well as the respondent who called one witness, apart from the appellant himself, was recorded in <sup>12</sup> typed pages only. The evidence itself is not the usual narrative that we see in other records of proceedings, even where there are electronic facilities to aid the trial judge in creating a record. We therefore cannot be certain that the trial judge did not sum up to the assessors, whose opinion was also compressed into only 12 typed lines. But for purposes of clarity of the decision on this point, what appeared on the record with regard to summing up was at the end of the submissions of counsel, and it read as

"Accused is responsible for tlle death of the deceased and conuicted as indicated.

Rejoinder Nothing useful to add Summing up fo assessors

Opinion orf assessors"

follows:

ln Byamugisha v Uganda [1987] HCB 4, the Supreme Court while discussing the duty of the trial court in summing up to the assessors held that:

"When summing up lo the assessors the trial judge should not be too sketchg. He should haue, u-then doing so, explained for the assessors the ingredients of the offence of robbery, the duty of the prosecution to proue ttLe case against the accused persons begond reasonable doubt, and that the benefit of any doubt had to be giuen to the accused persons. The tial judge should haue referred to the accused's defence of alibi and pointed out the duty of the proseantion to proue it. Then he should haue analysed tLte prosecution euidence in regard to the defence of alibi and tlrc euidence as a uhole."

10 15 This court in Bakamuyunga Provia alias Banana v Uganda (Criminal Appeal 63 of 2016f; l2022l UGCA 37; considered the absence of notes of summing up to the assessors in a similar situation where the trial judge simply noted on the record that summing up was done. The court observed that the absence of the recording of the summing up notes, pima facie, is an irregularity. The court further had recourse to the decision of this court in Simbwa Paul vUganda Criminal Appeal No. O23 of 2OL2, where it was observed that:

> "...1t is a good and desirable practice that the substance of the summing up notes ,for asses.sors appears in the record of proceedings. It is the onlg u-sag an oppeal courl can tell uhether the summing up was properlg done ... We also consider it good practice that the opinion of eoch o.f the assessors should appear on record. "

This court extensively considered the absence of summing up notes in the more recent case of Abbo v Uganda (Criminal Appeal 168 of 2018ll2o23l UGCA 17, where counsel for the appellant advanced similar arguments to those advanced in this appeal. The only difference in that appeal was that counsel for the respondent went back to the original record and did find that indeed, the trial judge recorded his summing up notes, though they did not make it to the record that was placed before the court. The court (Obura, Bamugemereire & Madrama, JJA) observed and then held that: 25

"On mang occasions this court has disanssed the reEtirement of complging utith section 82 and other related sections, in the light of Article 126(2) (e) of *the Constitution of Uganda. The article 126(2)(e) enjoins courts to administer* substantive justice without undue regard to technicalities. A similar situation was discussed in Byaruhanga Fodori v Uganda CACA 24 of **1999** and the justices opined to the effect that the above sections should be read as rules of procedure. Substantive justice in this case would be not so much that assessor summing up is on record but rather that the full trial took place and the assessors were present. The details of how the assessors were summed up to should not form part of substantive justice unless it was shown that it in some way impinged on the appellant's right to be heard. *While they differ slightly, Komakech v Uganda SCCA No. 10 of 1990 and* Okwonga Anthony v Uganda, SCCA No 8 of 2002, both of which were sighted (sic) with approval in Geoffrey Kazinda v Uganda, CACA 179 of 2020 and 208 of 2020, underscore the case that whereas s. 82 is couched in Simply put, the sections as mandatory terms, (sic) it is in effect directory regards the rules of procedure in dealing with assessors ought to be treated as hand maidens of justice and not as substantive justice. (sic) This is a slight departure from our sister jurisdiction Kenya in Angela v Republic [2001] EA 125. Failure to comply with the rules of procedure to the letter should not be reason to upset a full trial.

$\mathsf{S}$

We therefore find that the trial Judge clearly summed up his notes to the $20$ assessors as required by law and had counsel for the appellant been vigilant enough to analyse the entire record, she would have found the same. The above notwithstanding, and for purposes of future reference, even if the summing up notes had not been recovered, there is good authority to suggest that indeed the notes do not have to exist for this court to make 25 a finding that the trial Judge summed up to the assessors where a full trial has been held and concluded.

> *In view of the forgoing discussion we are of the view that this ground lacks merit and is hereby dismissed."*

- However, that is not to say that the record of summing up to the assessors 30 may be dispensed with willy-nilly by trial judges because it is still a legal requirement in a criminal trial. Nonetheless, we do not think that the absence of comprehensive notes on summing up in this case occasioned a miscarriage of justice. Though counsel for the appellant asserted so, even - with the compressed proceedings, there is a reasoned judgment on the 35 record in which the trial judge convicted the appellant of the offence of murder. We cannot quash the entire proceedings because section 139 (1) of the TIA only allows this court to reverse or alter a judgment or other proceedings during a trial where the error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice. There being no palpable failure of justice, or failure of justice at all, we uphold the trial.

Ground 1 of the appeal therefore fails.

## Grounds3,4&5

The composite grievances of the appellant in grounds 3, 4 and 5 of the appeal were that the trial judge failed to adequately evaluate the evidence about the participation of the appellant and relied on evidence that was full of inconsistences and contradictions, including disregarding the alibi that was raised by the appellant.

## Submissions of counsel

Mr. Sabiiti Omara, counsel for the appellant, referred court to the decision

15 20 in Ssekitoleko v Uganda 11967l EA 531 and Miller v Minister of Pensions ll947l2 ALL ER 372 on the standard of proof in criminal trials. He asserted that the prosecution had the onus to prove each of the ingredients of the offence beyond reasonable doubt. He conceded that the death of the deceased could not be contested; this appeal was therefore challenging the findings of the trial judge on the second and third ingredients; death caused with malice aforethought and the participation of the appellant in the crime, respectively.

Counsel contended that the appellant's defence was that of an alibi. Tll.at even before he was put on his defence, PW3 testified that the appellant was at a certain home sick .beuitched." (Page 9 of the record). Counsel further submitted that the appellant stated that he came from Entebbe

where he resided that day and got home when he was tired. That he only heard about the gathering where the crime took place but he did not attend it due to his fatigue.

5 Counsel further submitted that DW2 (page 9 paragraph 3 of the record) corroborated the appellant's statement when he stated that he attended the meeting called by the elders to discuss the issues of witchcraft at the home of Oketha on 9th May 2001, but the appellant did not attend it. This, he asserted, corroborated the testimony of PW2, Festo Rwot Agil, that indeed the gathering took place at Oketha's home. He added that among the names of participants that were listed by PW2, the appellant was not included. That in addition, PW3 also did not name the appellant as one of the people who attended the meeting. 10

Counsel for the appellant went on to advance the argument that according to DW2, the deceased was murdered by the crowd at the meeting who began to hit her till they killed her. That he maintained this even when he was cross examined. Counsel added that PW2 testified that there was a big crowd of about 5O people who attended the meeting. And that the assailant came in wearing a jacket with a hood and cut the deceased on the head but she was already dead. He referred to Sekitoleko v Uganda, 15

- [1968] EA 531 for the legal position on the defence of alibi; that it is not the duty of the accused person to prove his alibi, but once it is stated, the burden falls on the prosecution to disprove it by putting the accused person squarely at the scene of the crime. And that in this case, the prosecution failed to do so. 20 - Counsel went on to submit that even if it were true that the appellant cut the deceased, he cut her head when she was already dead. That if the testimonies of the prosecution witnesses were to be relied upon they could only prove that the appellant did not kill the deceased. That perhaps, out 25

of a spell of witchcraft, as it was revealed by witnesses called by the prosecution who stated that the appellant was at home sick or bewitched, he could only have cut the dead body of the deceased under a spell of witchcraft.

With regard to the contradictions and inconsistencies claimed by the appellant, counsel referred court to the decision in Waiswa Stephen & Another v. Uganda, Criminal Appeal No. 31 of 1995, for the proposition that even where the defence omits or fails to point out contradictions or discrepancies in the prosecution case, it is the duty of the trial judge to do so. That the trial judge would then be able to express his or her opinion on the weight that he/she attaches to the said contradictions and inconsistencies. He asserted that the trial judge in this case failed to do 10 5

SO

He went on to point out that given the number of people present at the meeting anything could have happened, especially in view of the testimony of PW2 that he went to the meeting to .stop people from killing each other." Further, that there was an inconsistency in the testimonies of witnesses about the date of the event. That PW2 stated that it was on 9th May 20 11, not 9th May 2OOl. Further that PW3 also stated that the events that are the subject of the prosecution occurred on 9tt May 2011. That the two prosecution witnesses stated a date that contradicted that on which the crime was alleged to have been committed. 15 20

Counsel further submitted that there was a further inconsistency in the testimonies of the witnesses for the prosecution as to where the incident occurred. That while PW3 stated that the meeting to deal with issues of witchcraft took place at Omikani Albert's home, PW2 said it happened at Oketha's home. That the trial judge ought to have resolved this inconsistency in favour of the appellant.

Counsel went on to submit that the situation, as narrated by PW2, was confusing and tense because he said that after the deceased was attacked by the assailant and died, all the people at the meeting scattered and run away. That a group of more than 5O people scampering off was most likely to result in confusion leading to the mistaken identification of the assailant. He submitted that the circumstances fell short of factors that were laid down in the case of Abdulla Nablerere & 2 Others v. Uganda, Criminal Appeal No. 9 of 1978, to aid the court in reaching a decision on a reliable identification of a suspect in difficult circumstances.

He went on to submit that there was an inconsistency in the time at which the incident occurred, according to the testimonies of various prosecution witnesses. While most stated that the incident occurred at around 2.00 pm, PW4 stated that it was at 9.00 pm. He added that the circumstances in which the appellant picked up the pangq and took it to the police, as it was stated by PW2, were not clear. That this was especially so because he also said that the appellant used the sarne panga to hack at the deceased. 10 15

Counsel contended that that there was a further contradiction in the evidence because though PW2 stated that the appellant alleged that the deceased wanted to kill him, when he was cross examined he stated that there was no grudge between the appellant and the deceased. He asserted that this contradiction in the evidence was crucial and this court ought to resolve it in favour of the appellant. That the absence of a grudge between the appeliant and the deceased meant that there was no malice to the deceased proved against the appellant.

Counsel further complained about the testimony of PW5 who stated that information about the crime was brought to his attention by PW3, a cousin to the appellant. That however, the appellant stated that PW3 had a grudge 25

against him resulting from a debt that he owed him. He further submitted that the testimony of PW5 was hearsay. He opined that it was strange that PW3 went to PWS to report a crime that happened 18 years ago. That this is especially so because the appellant stated that the allegations against

5 him were a set up by his cousin, PW3, because the two even fought each other about a debt.

Counsel for the respondent concluded that the contradictions and inconsistencies that he enumerated ought to have been resolved in favour of the appellant. That the police did a shoddy investigation and the evidence on the record was not sufficient to maintain a conviction against the appellant. He prayed that this court sets aside the conviction.

In reply, counsel for the respondent submitted that though the appellant's defence was alibi, the evidence that was led by the prosecution through PW2 squarely put him at the scene of the crime. Further, that though PW2

stated that the appellant came to the scene of the crime in a jacket with a hood that covered his head, when he arrived, he pulled off the hood, pulled o:ut at panga and attacked the deceased with it, killing her instantly. 15

Counsel for the respondent pointed court to the testimony of PW3 who stated that he saw the appellantpt;Jl a panga frorn his waist which he used to cut the deceased on the shoulder and the neck. That he was six meters away from the point at which the appellant attacked the deceased.

Counsel further submitted that PW4 testified that he attended the meeting on 9th May 2001 which started at 10.00 am. That this witness stated that the appellant arrived at the meeting at 3. OO to 4.00 pm and cut the deceased with a panga. Counsel then asserted that in the circumstances

narrated by the prosecution witnesses, there was no room for mistaken identity.

With regard to the testimony of DW2 who supported the appellant's alibi that he was not present at the meeting which began at 9.0O am, counsel submitted that in cross examination, the witness stated that the appellant paid compensation for killing the deceased and he (DW2) witnessed it. Further, that DW2's claim that the crowd at the gathering hit the deceased to death was not supported by the post-mortem report (PEX4 at pages 42- 44 of the record ofappeal). That this report showed that the evidence found on the body of the deceased was that of severe cuts on the shoulder and the neck. Further that the trial judge evaluated this evidence and came to the right conclusion that it was the appellant that killed the deceased.

Counsel further submitted that the evidence of PW2, PW3 and PW4 indicated that the appellant was not present at the meeting when it started at 9.00 am. But it showed that he came in between 2. OO and 3. OO pm and attacked the deceased. That it is possible that DW2 was either trying to save his brother or he did not see the appellant, given the sudden appearance and the speed at which he acted. Counsel further submitted that if this court re-evaluates the evidence that was adduced by the prosecution it would believe the prosecution and disbelieve the defence and hold that the appellant was at the scene and it was he that singlehandedly killed the deceased. She prayed that grounds 3, 4 and 5 be resolved in favour of the respondent. 15 20

## Resolution ofgrounds 3, 4 and 5

The appellant's defence seems to have been given without taking an oath, though the trial judge did not record that. At page 18 of the record he stated that he was a resident of Ambere village but lived in Entebbe. That on 9 May,2OO1, he was told about a meeting but he could not go there because he was tired. That by the time he thought of going the gathering had already dispersed. That the following day he saw policemen passing 25

by his home. That he was arrested to help with investigations, but he was released on mandatory bail. That he kept reporting to court for 3 months but after that he was allowed to stay away from court. That he went back to school in Entebbe and furthered his studies and thereafter was employed by a travelling company at Entebbe Airport. Further, that whenever he got leave he would go home and stay after which he wouid return to Entebbe.

Otuba Ovuru Amos, DW2, was the younger brother to the appellant. He stated that on the day that the incident occurred was the elders called a meeting to follow up the issue of witchcraft. The meeting was at the home of one Oketha and it started at 9 to 10 am. That he was at the meeting but the appellant was not there. He named four other people who were present including the deceased. He explained that there were three people, including the deceased, said to be witches that were disturbing people in the area. That the appellant was supposed to be a victim. That the crowd started beating the deceased because the two other persons alleged to be witches ran away. That the crowd beat the deceased until they killed her. 10 15

In cross examination DW2 stated that he was present when the crowd killed the deceased. Further that they killed her using a panga and they cut her on the neck and back. The witness was questioned about a letter said to be dated 14 May, 200 1 . He stated that he attended the 2"a meeting to discuss issues of witchcraft and in the letter the death of the deceased was mentioned and the appellant agreed to compensate. That the meeting was presided over by the LC1 Chairman. The letter was admitted in evidence as ExhPS but it was not placed before us in the record of appeal. 25 20

The evidence that was adduced by the prosecution on the other hand was that Ocungi Festo Rwot, PW2, stated that he knew the deceased, as the

stepsister of the appellant. That on 9 May, 2011, he was at Ambere village to stop people from killing each other. That he arrived at the gathering at 2.00 pm. And that this gathering was at the home of the appellant's uncle, Oketha, and there was a big crowd of over 50 people. He narrated the attack on the deceased as follows:

"Before I had sat down, the accused arrived while putting on jacket with a hood, picked off the hood of the jacket from the head, removed the panga and cut the deceased on the right hand of the shoulders and it fell off, he again cut the head but the deceased had already died. People scattered while running, the accused picked the panga and went with it to police (size of my hand). I told him to go to police with the LC1 to police." (sic)

The witness clarified that he was 3 to 4 meters away. That at the meeting he was to resolve a dispute because the appellant alleged that the deceased wanted to kill him. In cross examination counsel for the appellant put it to him that the appellant was mentally ill but the witness asserted that he was not. He further stated that he did not know whether there was a grudge between the deceased and the appellant.

The appellant was given an opportunity to cross examine PW2. He asked him about the colour of the clothes he was wearing. PW2 did not state the colour but said the appellant was dressed in a jacket and got the panga out of his pocket.

Oweker Julius, PW3, stated that he knew the appellant. That he got to know him at their home because the appellant was his "cousin bother." That he attended the meeting on 9<sup>th</sup> May 2001 and the issue was resolution of allegations of witchcraft. One Jesca, the sister in law of the appellant accused the deceased of witchcraft. That the appellant was at a "certain home, sick *(bewitching)*." That he saw the deceased at night. About the incident, he stated thus:

$\mathsf{S}$

" Meeting started at 9.00 amup to 9 pm but in betueen there was death. At around 3. OO pm the deceased u-tas killed. Suddenly u)e sanD the accused remoue the panga and cut the deceased. He remoued it from his utaist."

5 He expiained that the appellant cut the deceased on the right shoulder and the neck. Further that he witnessed the incident while he was about 6 metres away from the deceased and the appellant. Further that before 9.00, the appellant was in the crowd.

Onoba Justo, PW4, was a-lso a resident of Ambere village. He said he was a cousin to the appellant. That the deceased was a-lso his "cousin sister." That on gth May 20O1, there was a witchcraft case between Jessica who was being disturbed by witches. About the attack on the deceased, he stated thus:

" Meeting started at around 10. OO am and mang people attended, PW3 and PW4 the accused came and cut the deceased, people took ouer. That uas around 9 pm to 4 pm. The part of the bodg cut uas the neck and shoulder. Cut the deceased into pieces."

Counsel for the appellant did not cross examine this witness. Neither did the appellant himself.

The testimony of Otuba Ovuru Amos, DW2, the appellant's brother who testified that the appellant was not at the meeting also falls by the way side for clearly, 3 people saw the appellant at the meeting at the time that he pulled out a panga and hacked at the deceased. If she had been hit by the crowd, as DW2 stated, there would have been others who testified about it. The testimony of Otuba that it is the crowd that hacked at the deceased with a panga also does not make sense. The post mortem report clearly shows the injuries as "Massiue cut tt-tounds, lefi side of neck, extending to ceruical uertebrae, chin, lefi shoulder." This description was 20 25

consistent with that which was given by PW2, PW3 and PW4 in their testimonies.

We a-lso find that whether or not he took the panga to the police, or handed himself over to them or not is immaterial. What is necessary for the resolution of the issue on participation is the fact that three people that were present at the scene of the crime saw and positively identilied the appellant as he inflicted the wounds that caused the death of Biwaga Georgina.

Counsel for the appellant argued that the appellant was mentally ill and that he hacked at the body of the deceased who was already dead due to his menta-l illness. The evidence on the record does not bear this out. The testimony of PW2 shows that after he hacked her arm off at the shoulder, the deceased fell down, dead. He continued to hack at her dead or still body, even after she fell down. There is also no evidence that the appellant was mentally ill because the medical examination report, PEXI, at page 40 of the record of appeal, shows that he was in a normal mental state, though this was on 6\*'August2019. 10 15

The submission that he was under a spell of witchcraft does not seem feasible because, according to PW5, No. 19613, Jalobo Emmy, the investigating officer, after he was released on bail from the charges for murder in 2OO2, he fled from the area. He stayed away till he was arrested from his safe haven in Entebbe, in 2019.

Counsel for the appellant opined that it was strange that PW3 went to PW5 to report a crime that happened 18 years before. That this is especially so because the appellant stated that the allegations against him were a set up by his cousin, PW3, because the two even fought each other about a

debt. While it is true, as it was stated by PWS, that it was Julius Owekere (PW3) who revived the compliant about the murder of Georgina Biwaga, it is not correct to say that he revived the case because of a debt that the appellant owed to him. PW5, Jalobo Emmy, explained that the prosecution

5 of the appellant for the murder of Georgina Biwaga was silent because nobody knew where the appellant was. But the appellant o started the case again (bg) cutting his brother Patrick Ocibi in 2019."

There was on record, at page 7, a charge sheet in CRJB 7o212019 at Entebbe Police Station dated 28tr. June 2019.lt was stated therein that on 23'd June 2019, Bogga Phillip attempted to cause the death of Ochiba Patrick Noah. The second count was that Bogga Phillip unlawfully assaulted Akello Sarah causing her actual bodily harm. If Ochiba was indeed the brother of or a relative to the appellant, as PW5 stated, it was not surpring that his repeated offending against his relatives resulted in a revival of the prosecution of his blatant murder of Biwaga, his cousin, in the presence of other members of his family. 10 15

We are also of the view that the inconsistencies and contradictions that counsel for the appellant pointed out in his submissions such as the time, the date and the place at which the incident occurred are minor. They are not sufficient to discredit the clear and uncontroverted evidence that was adduced by the prosecution about the circumstances in which the deceased met her death at the hand of the appellant.

There is therefore no doubt in our minds at all that the 3 witnesses who knew the appellant before the incident as a resident of their village, and for PW3 and PW4 as a close member of their family, clearly saw the appellant in broad day light as he hacked at the deceased with a panga. Further, that it is these massive wounds that he inflicted upon her that 25

resulted in her death on the spot. The submissions about the possibility of a mistaken identity therefore do not hold any water' We find that the trial judge made no error at all when he found that it is the appellant that caused the death of Georgina Biwaga.

<sup>5</sup> Grounds 3, 4 and 5 of the appeal therefore also fail.

## Ground 6

In this ground of appeal, the appellant complained that the sentence that was imposed upon him by the trial judge was excessive and harsh in the circumstances of the case.

## 10 Submissions of Counsel

Counsel for the appellant submitted that the trial judge erred in law and fact when he sentenced the convict to 38 years, 7 months and 26 days' imprisonment which is manifestly harsh and excessive in the circumstance. He relied on Kyalimpa Edward v Uganda Criminal Appeal

15 No. 1O of 1995; Kiwalabye v Uganda, SCCA No. 143 of 2OO1; Aharikundira Yustina v Uganda, CACA No. lO4 of 2OO9 and Mbunya Godfrey v Uganda SCCA No. 4 of 2Oll.

He urged court to invoke section l1 of the Judicature Act and set aside the sentence imposed by the trial judge as it was done in Guloba Rogers

v Uganda, Criminal Appeal No. 57 of2Ol3. 20

Counsel further relerred to Batuli Moses & 7 Others v Uganda, CACA No. 225 of 2o14, where the Court of Appeal sentenced the appellants to 13 years and 9 months' imprisonment for murder and prayed that this court sentences the appellant in this case to 1O years' imprisonment after considering the mitigating factors. He also referred to Kiwalabye Bernard v Uganda (supral where it was stated that court is justified to interfere with the sentence of the trial court on account of using wrong principles to pass an excessive sentence.

In reply counsel for the respondent referred to Livingstone Kakooza v Uganda, SCCA No. 17 of 1993 cited with approval in Naturinda Tamson v Uganda, SCCA No. 25 of 2O15, and stated the factors to be fulfilled for an appeal against sentence to succeed as: the trial court having acted on a wrong principle or overlooked some material factor; where the sentence is illegal; and where the sentence is manifestly excessive in view of the circumstances of the case. She then submitted that the trial judge exercised his discretion appropriately while sentencing the appellant because after evaluating the mitigating and aggravating factors, and all other circumstances of the case, he found it justiciable to sentence him as he did.

Counsel further submitted that even though the Constitutional Court recently held in Sundya Muhamudu & Others v Attorney General, Constitutional Petition No. OO24 of 2OL9, that any sentence above 21 years' imprisonment is illegal, the instant case was concluded in 2019, before the said Constitutional Petition was decided. In the alternative, counsel for the respondent prayed for a sentence of 20 years to be imposed after evaluation of the aggravating and mitigating factors. 15 20

In conclusion, counsel for the respondent prayed that the appeal be dismissed, the conviction be upheld and the sentence be confirmed.

## Resolution of Ground 6

It is the established principle restated in Kyalimpa Edward vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995, where the court reaffirmed the position that the primary responsibility for sentencing rests on the trial court. The court further restated the principles upon which the

appellate court may interfere with the sentence imposed by the trial judge, as they were stated in **Ogalo s/o Owoura (1954) 2 EACA, 270**, as follows:

"The principle upon which an Appellate Court will act in exercising it jurisdiction to review sentence are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by the trial judge unless, as was said in *James v R (1950) 18 EACA, 147*, 'it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the *case: R v. Shershewsky, (1912) CCA, 28 TLR 364."*

We take cognisance of these principles as we proceed to consider the appellant's grievance in this appeal. We note that in his sentencing ruling,

the trial judge stated and ruled thus: 15

$\mathsf{S}$

"I have considered the fact that the convict is a first-time offender although whether this is true, cannot be found out due to our poor record keeping but I take it as it is. I have also considered the period spent on remand under Article 23(8) of the Constitution and Regulation 15 (2) of the Constitution (Sentencing Guidelines) for Courts of Judicature, direction, 2013 that is 1 *year, 4 months and 4 days.*

I have also considered that the convict has children who need his care but he also needs to reform.

*Even if there was an allegation of witchcraft against the deceased, people* had already convened to resolve the issue. It did not warrant the convict taking it upon himself to take her life, it's God who gives life and the sanctity of life has to be maintained.

> *There is no spear (sic) to life, one only lives once and yet the convict denied* the deceased the right to live. Her relatives will forever miss her, never to *ever see her again.*

> The nation was also deprived of a young energetic woman who would have *been very useful to her family and the nation at large.*

> *I therefore find the sentence of 40 years appropriate, less 1 year, 4 months* and 4 days, leaving him to serve 38 years, 7 months and 26 days."

The ruling, in its material particulars, shows that the trial judge considered most of the mitigating and aggravating factors before he arrived at what he considered to be an appropriate sentence in the circumstances. However, the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, 2013, in paragraph 6 (c), as a general principle provide that sentencing courts shall take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar

circumstances. The trial judge did not observe this principle and for that reason, we hereby set the sentence of38 years, 7 months and 26 days that he imposed aside. We will now proceed to impose an appropriate sentence after considering sentences that have been imposed by the courts before for similar offences. 10

It is pertinent to note that the decision in Sundya Muhamudu (supraf is under appeal to the Supreme Court. We therefore did not consider it. But in Aharikundira Yusitina v Uganda, SCCA No 27 or 2OL5, the Supreme Court set aside the sentence of death that had been imposed upon the appellant, for the murder of her husband by cutting his body into pieces, which had been confirmed by this court. The sentence was substituted with 30 years' imprisonment. 15 20

In Rwalinda John v Uganda, SCCA No O3 of 2015, the appellant who was 67 years old was sentenced to life imprisonment. The sentence was confirmed by this court. On appeal to the Supreme Court the sentence imposed by the trial court was upheld. The court found that the trial judge considered the aggravating and mitigating factors like having been a first offender and took into account the one year and three months he spent on remand, the age of 67 years and his prayer for leniency. Further, that the trial Judge considered the seriousness of the offence, the death of a

toddler, the way the murder was carried out which culminated in the death, among others and passed the sentence of life imprisonment' The Supreme Court did not consider the sentence to be harsh and excessive in the circumstances and so upheld it.

5 In Rwanyaga Charles v Uganda, Court of Appeal Criminal Appeal No. 352 of 2O14, where judgment was delivered by this court on 24th February 2022, the appellant had been sentenced to death for murder by multiple shooting and a-fter killing the victim, he attempted to shoot the LC1 Chairman who had come to his rescue. He appealed to this court against the sentence only, his appeal against conviction having been dismissed earlier. The court substituted the sentence of death with imprisonment for 29 years and one month, from the date of his conviction. 10

In Bayo Sunday v Uganda, Court of ApPeal Criminal Appeal No. 414 of 2019, the appellant appealed against his sentence of 27 years, 2 months and 2 days for murder, where he caused the death of the deceased by hacking at him with a panga. This court considered the sentence appropriate and upheld it.

In Sambwa Issa v Uganda, Court of Appeal Criminal Appeal No. 145 of 2022, the appellant who murdered his step brother by hacking him to death with a panga was convicted to serve a sentence of 25 years' imprisonment. On appeal to this court, the sentence was upheld.

In the case now before us, the convict had no justifiable reason whatsoever for attacking and killing the deceased. He did not even wait for the meeting that had been called to resolve the dispute over the alleged witchcraft by the deceased and others to end before he publicly executed the deceased. The appellant murdered his relative before members of his family and then fled from the area, only to be arrested 18 years later when he viciously attacked his brother in Katabi, Entebbe, where he had taken refuge.

We have therefore taken into consideration that the appellant was a young person aged 2l years and a student at the time that he committed the offence in 2001, but he had during the years of his hiding away from justice grown to be 57 years old at the time he was convicted. And as is

5 required by Article 23 (8) of the Constitution, we have taken into account the period of one year and four months that he spent in lawful custody in respect of this offence before his trial was completed.

Having done so, we are of the view that given his age at the time of concluding this appeal which we estimated to be 61 years, a period of 2O years' imprisonment will meet the ends of justice in this case. We now deduct the period of I year and 4 months spent on remand and sentence the appellant to imprisonment for 18 years and 8 months, which will commence on I 1th December 2019, the date of his conviction.

Dated at Kampala this day of 2023 ft}- ^o4

derick Egonda-Ntende JUSTICE OF THE COURT OF APPEAL

Catherine Bamugemereire JUSTICE OF THE COURT OF APPEAL

Irene Mulyagonja JUSTICE OF THE COURT OF APPEAL