Kakaire and Another v Uganda (Criminal Appeal No. 82 of 2018) [2023] UGCA 30 (30 January 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA SITTING AT JINJA

(Coram: Elizabeth Musoke, Barishaki Cheborion and Hellen Obura, JJA)

## CRIMINAL APPEAL NO. 082 OF 2018

#### 1. KAKAIRE GODFREY 10

# 2. KIROME SULA:::::::::::::::::::::::::::::::::::: **VERSUS**

$UGANDA \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$

(Appeal from the decision of the High Court of Uganda at Iganga delivered on 18th *July, 2018 in Criminal Case No.0159 of 2013 by Hon. Justice Michael Elubu)* 15

## **JUDGMENT OF COURT**

This is an appeal from the decision of the High Court sitting at Iganga by Michael Elubu, J wherein, the appellants were indicted and convicted of murder contrary to Sections 188 and 189 of the Penal Code Act and sentenced to 29 and 27 years imprisonment respectively. Dissatisfied with the decision, the appellants 20 appealed to this court against both conviction and sentence on grounds that:

- 1. The learned trial Judge erred in law and in fact when he found that the appellants had been positively identified. - 2. The learned trial judge erred in law and fact when he found that the appellants` alibi had been destroyed.

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## 5 3. The learned tri.al Judge erred in la ut and Jact uhen he imposed man{estlg harsh and excesslae sentences agatnst the appellants,

Briefly, the facts are that on the night of 9th January, 2013, the appellants together with a one Kirya Godfrey were arnong a group of persons who raided the home of one Magoola Rashid located at Buligi, Malongo in May'uge District and left him dead aJter severally cutting him. The incident was witnessed by the wife of the deceased who testified as PWl. The appellants denied committing the offence and each ofthem raised a defence of alibi. Their respective wives testified as DW2 and DW4 in support of the said defences of a-libi.

The trial court believed the prosecution case and ultimately the 2 were convicted arrd sentenced to 29 years and 27 years respectively whereas Kirya Godfrey was

Being dissatisfied with the decision of the learned trial judge, the appellants appealed against both conviction and sentence.

At the hearing of the appeal, Mr. Henry Kunya appeared for both appellants on state brief while the respondent was represented by Nyanzi Macleala Gladys Asst. DPP holding brief for Vicky Nabinseke Asst. DPP. 20

The first 3 ingredients of the offence of murder namely; death, death being unlawfully caused and existence of malice aforethought were never contested by both parties. However, it was argued for the appellants that they never participated in the commission of the offence.

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acquitted.

- 5 On ground one of the appeal, counsel for the appellant submitted that there was no credible evidence on record linking the appellants to the commission of the said murder. He contended that the only direct evidence or eye witness account linking the appellants to the commission of the said offence was given by PW1 Zli,:.aMagola. - 10 He further submitted that the learned trial judge only considered the identification evidence of PWl. That there existed difficult conditions under which it was done as highlighted herein below and wherein, the prospects of mistake or error were not completely ruled out. He argued that this was grossly erroneous for the most apt course of action would have been to judiciously 15 consider all the relevant factors bound to affect the said identification before

making an appropriate conclusion.

Further, that the learned trial judge a.lso relied on the police witness statements recorded by PWl Zllia Magola and which was admitted in evidence as D Exhs 1 and 2. That the very first police statement which was recorded in the morning 20 hours following the said attack, PW1 only mentioned the names; Yose, Godfrey

- and Sula. That the additional statement was then recorded 2 weeks (14 days) later on 24/O2/2O13 and thus one is left wondering if PWl actually knew the identity of the assailants and why she did not get their full details soon after the attack other than waiting for their arrest which was on 15 /01 /2013. - 2s He also contended that the identification evidence of the appellants in relation to the said attack is so wanting and lacking that it should not have formed the basis for their arrest, arraignment, trial and subsequent conviction and resultant sentencing.

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5 On ground two, counsel submitted that a close scrutiny of the record of appeal revealed the fact that both appellants not only denied having participated in the commission of the said offence but also adduced evidence of their respective wives in support of their defence(s) of a,libi. That A1 had intimated that on the material day/night he was at home nursing a toothache, A2 on the other hand was at home following an exhausting day in the garden prior to going out to fish. 10

Counsel for the appellants submitted that the learned trial judge was alive to the law relating to the defence of alibi but that unfortunately, and to the prejudice of the appellants, his interpretation and the resultant application thereof was erroneous

On ground three, Counsel for the appellants cited the case of Klwalabye Benard Vs Uganda, SCCA No. 143 of 2OO1 for the proposition that the appellate Court is not to interfere with the sentence imposed by the trial Court which has exercised its discretion unless the exercise of this discretion is such that it results into a sentence which is manifestly harsh and excessive or so 1ow to amount to a miscarriage of justice. 15 20

Counsel further submitted that the sentence levied/passed against the appellants on that score a1one, was premised on a wrong principle which lacked any factual, authentic and statistical basis. He therefore prayed that the appeal be allowed, the said conviction be quashed and the sentence set aside.

In response, counsel for the respondent cited Rwabuganda Moses Vs. Uganda, SCCA No. 25 of 2OL4 for the preposition that it's the duty of the appellant court to reconsider all material evidence that is laid before the court while making 25

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5 allowance for thc fact that they neither saw nor heard the witnesses and come to its own conclusion on that evidence.

Counsel argued grounds one and two together and submitted that the trial judge extensively analyzed the evidence of participation of the appellant as well as the defence and came to a conclusion that the prosecution had proved its case beyond reasonable doubt that the appellant had participated in the murder of Magoola Richard. That the trial judge went into great details analyzing the evidence of participation and noted that in order to avert the dangers of mistaken identity, it was necessary for him to look at the circumstances under which the identification had been made. He averred that the evidence of PW1 Zilia Magola which stated that there was adequate light in the room, the assailants were right

20 He a-lso submitted that a close scrutiny of evidence adduced before the trial Court revea-ls that not only were the appeilants positively identified by PW2 Magooli Harik but were also positively identified by PWl Zl|ia Magola, the wife of the deceased who testified that on the fateful night, she and the deceased were woken up by the assailants, with the aid of the lamp in the room and torches held and flashed by the assailants she managed to identify among them the appellants whom she had known for eight years. PWl also said the deceased had an ongoing iand dispute with the appellants and other people in the villagers.

next to her bed and were all verv familiar to her.

25 PW2, Magooli Harik a,lso testified that on the fatefui night, he heard his step mother PWI Zilia Magoola raising an a1arm, and when he got out of his house which was just 15 meters away from the deceased's house, he flashed a torch at a group of about 10 people and he managed to identify the appellalts among the

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5 assailants. He was also aided by the moonlight to identify the appellants who were armed with pangas ald were standing 13 meters away from him and that the assailants tried chasing him but he fled to a neighbor's house while raising arr alarm which forced the assailants to run away. That PW3 the investigating officer a.lso testified and confirmed the scene of crime as a smail single-room grass thatched house and she confirmed that PW1 had identified the appellants among the assailants with the aid of the torch. 10

Counsel for the respondent submitted that there is consistency in the statements and testimonies of PW1 and PW2 about the identity of the two appellalts as part ofthe group of the assailants who attacked and murdered the deceased. He cited

- Opolot Justine & Another vs Uganda, Supreme Court Criminal Appeal No. 31 of 2O14 for the preposition that a person cannot be in two places at the same time. The iearned trial judge, having believed the prosecution witnesses ald having found that the appellants had been placed at the scene of crime, had no option but to reject the appellant's alibi. 15 - 20 On ground three, Counsel for the respondent submitted that this Court as well as the Supreme Court have on numerous occasions decided that the appellate court should only alter the trial court's sentence if the said trial court acted on wrong principle, over looked some material factor, or the sentence is harsh or manifestly excessive. - She also submitted that before the trial court passed the sentence, tt atalyzed the mitigating factors raised on behalf of the appellants such as the fact that they were remorseful, were first time offenders, had large families and A1 was 42 years and concluded that this was however, a gruesome revenge killing since the 6lPaee 25

5 deceased was restrained in the presence of his wife and young before he was brutally cut with a panga. He therefore considered the 6 years that the appellants had spent on remand, and taking into account their respect ages, sentenced A1 to 29 years and ,\2 to 27 years.

She further submitted that considering the circumstances of this case, the sentence of 29 years and 27 respectively were appropriate. Counsel cited Muhwezi Bayon Vs Uganda, CACA No. 198 of 2O13, for the preposition that the term of imprisonment for murder of a single person ranges between 20 to 35 years of imprisonment. He therefore prayed that this honorable Court upholds the conviction of the appellalts, sustain the sentences passed by the trial judge and accordingiy dismiss the appeal. 10 15

We have carefully studied the court record and considered the submissions of both counsel ald the issues they raised. We are alive to the duty of this Court as the first appellate court to review the evidence on record and to reconsider the materials before the trial Judge and make up its own mind not disregarding the judgment appealed from but carefully weighing arrd considering it. See: Rule 3O (1) (a) oJ the Judicature (Court oJ Appeal Rules) Directloas, Sf 73-70 ar,d

Kifannunte Henry as Ugand.a.; SCCA iVo 70 oJ 7997.

The burden to prove a charge of murder against the appellant laid squarely on the prosecution and the guilt of the appellant had to be proved beyond reasonable doubt. The ingredients of the offence of murder that had to be proved at the trial were that the deceased is dead, that the death was unlawful, that

there was ma1ice aforethought and fina1ly that the appellant participated in the offence.

The first three ingredients were conceded to by the appellant as having been proved by the respondent beyond reasonable doubt and as such they are not being contested in this appeal.

In resolving issue one, the law with regard to identification has been stated on numerous occasions. In the case of Abdulla Bin Wendo & Another vs R (1953) 20 EACA I66 the Court held; 10

"Although a fact can be proued bg the testimong of a single u.titness this does not lessen the need for testing tuith greatest care the euidence of such a tuitness respecting identification especially uhen the conditions fauoing a correct identifi.cation u-tere dfficult. In such circum.stances uhat is needed is other euidence pointing to guilt from tuhich it can reasonably be concluded that the euidence of identification can safely be occepted as free from the possibilitg of error."

The need for greatest care as emphasized in the above case is not required in respect of a single eye witness only, but is necessary even where there is more than one witness where the basic issue is that of identification. This point was stressed in Abudala Nabulere & Anor Vs Uganda, Court of Appeal Criminal Appeal No. 9 of 1978 (1979) in the following passage in the judgmcnt: 20

u,... Where the case against an accused depends uhollg or substantially on the correctness of one or more identifications of the acansed, uthich the defence disputes, the judge should uarn him,self and the assessors of the SlPage 25

5 special need for caution before conuicting the ocansed in reliance on the correctness of the identification or identifications. The reason for the speciol caution is thot there is a possibilitg that a mistaken utitness can be a conuincing one and that euen a number of such witnesses can all be mistaken. The judge should then examine closelg the circumstances in uhich the identification came to be made, particularlg, the length of time the accused roas under obseruation, the distance, the light, the familiaritg of the witness u;ith the accused. All these factors go to the qtality of the identification euidence. If the quolitg is good, the danger of o mistaken identitg is reduced but the poorer the qualitg, the greater the danger. In our judgmen| uhen the qualitg of identificotion is good, as for example, uhen the identification is made ajler a long period of obseruation or in satisfactory conditions bg a person uho kneu the accused uell before, a court can safelg conuict euen though there is no'other euidence to support the identifi.cation euidence; prouided the court adequatelg utarns itself of the special need for coution...."

Bearing the above caution in mind, we have reappraised the evidence on record with a view of determining whether the trial Judge indeed failed to properly eva.luate the same and came to a wrong conclusion in convicting the appeliant. PWI on pages 10-18 of the record of appeal stated that they were woken up by the assailants and with the aid of the lamp in the room and with the torches flashed at her by the assailants she managed to identify the appellants whom she had known for 8 years. This testimony was corroborated by the testimony of PW2, who stated that he heard his stepmother raise an alarm, when he got out

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5 of his house which is just 15 meters away from the deceased's house he flashed a torch at a group of about 10 people and managed to identify the two appellants who were armed with pangas.

In the case of HaJl Musa Sebirumbi Vs Uganda, SCCA No. 1O of 1989. The Supreme Court set clear principles concerning contradictions and discrepancics and stated as follows:

"the pinciple upon tuhich a tial judge should approach contradictions and discrepancies in the euidence of a uitness or u.titnesses are nou) uell settled in this Country. Theg are stated .. . . In a utell-knoun case of Alfred Tajar Vs Uganda, EACA Cr. App No. 167/ 1969 (unreported) and folloued in many subsequent cases.

- The substance of these decisions is that in assessing the euidence of a u.titness his consistency or inconsistencg; unless satisfactoily exploined utill usuollg, but not necessailA; result in euidence of a tuitness being rejected; minor inconsistencies toill not usuollg haue the same effect unless the trial judge thinks that theg point to deliberate untruthfulness. Moreouer, it is open to a trial judge to find that a 15 - witness has been substantiuely truthful, euen though he lied in some partia ar respect. The pinciples applA to contradictions and discrepancies in the euidence of a single or more utitnesses supporting the same case" 20

Counsel for the appellants submitted at page 3 of his submission that the evidence of PW1 was suspect and could not form the basis for the conviction of the appellants since the very first police statement in the morning hours following the said attack, PWl only mentioned the names; Yose, Godfrey and Sula and the additiona-1 statement was then recorded two weeks later on 24/02/2Ot3.

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5 PW1 further testified that she had known the appellants for 8 years and they knew her well. This proved that she was familiar with the appellants. PW2 said that he flashed a torch at the appellants who were 13 meters away and there was also moon light that also aided him in identifying the appellant.

With regard to proximity between the witnesses and the appellants, PW1 testified that they were surrounded by the appeliants.

Furthermore, any contradictions in the evidence of the two witnesses (PW3 ald PWS) were not major, nor did they undermine evidence of proof of essentia-l ingredients of the offence of murder. As pointed out by this court in Twehangane Alfred vs Uganda, Criminal Appeal No. 139 of 2OO1, regarding contradictions in the Prosecution's case, the law is that the Court will ignore minor contradictions unless it thinks that they point to deliberate untruthfulness. We are convinced that the inconsistencies are minor and in no way go to the root of the case.

- Having subjected both the prosecution artd the defence evidence to our own scrutiny in relation to the factors set out in Abudala Nabulele and anor vs Uganda lsupra), we are satislied that conditions favoring correct identification were present. There was adequate light coming from the lamp and the torch together with the moonlight that aided PW2's identification. Al1 the two identifying witnesses were able to properly see the appeilants and identify them. 20 - 25 Grounds one of the appeal fail

On ground two, Counsel for the appellants faulted the trial judge when he found that the defence of alibi had been destroyed. He submitted that the learned trial 11 lPage

s Judge was alive to the law relating to the defence of alibi but unfortunately and to the prejudice ofthe appellants, his interpretation and resultant application of the relevant principles unsatisfying.

The appellants put up an alibi and gave sworn testimony in which they stated that at the materia-l time of attack of the deceased, they were at home. They 10 adduced evidence of witnesses to support their assertions and proved that they were not at the scene of crime.

Putting an accused at the scene of crime means proof to the required standard that the accused was at the scene of the crime at the material time. To do so the court must not base itself on the isolated evaluation of the prosecution evidence

- 15 alone, but must base itself upon the evaluation of the evidence as a whole. Where the prosecution adduces evidence showing that the accused was at the scene of crime, and the accused not only denies it, but also adduces evidence showing that the accused was elsewhere at the material time it is incumbent on the court to evaluate both versions judicially and give reason why one ald not - 20 the other version is accepted. It is a misdirection to accept one version and then hold that because of that acceptance per se the other version is unsustainable.

## See: Bogere & Another Vs Uganda, CR, App. No. 7 of 7997.

Counsel for the appellants submitted that all the defence witnesses maintained consistency in their testimonies that the appellants were not present at the scene 25 of crime. That they were in their respective homes, he said that A1 intimated that on that fateful day/night he was at home nursing pains of toothache, A2 on the other hand was at home following an exhaustive day in the garden prior to going out to fish.

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5 DW2 the wife to A1, at page 38 of the record of appeal stated that her husband was home and sick. DW4 the wife to A2 at page 42 of tlre record of appeal also testified that on the 9ft January 2013, they were home with her husband very tired because they had spent the previous day in the garden picking tomatoes.

On the other hand, Counsel for the respondent submitted that there was consistency in the statements and testimonies of PW1 Zlli.a and PW2 Magooli Harik about the identity of the appellants. He referred to the decision in Opolot Justine & Another Vs Uganda, CACA No. 155 of 2OO9, for the preposition that since the appellalts had been positively identihed, their alibi could not stand. This court in that case held tLrat "A person cannot be in tuo places at the same time" The learned tria-1 judge having believed the prosecution witnesses and having found that the appellalts had been placed at the scene of crime the judge 10 15

In our view, the evidence referred to by the trial judge in the above paragraph puts the appellant squarely at the scene of crime and points irresistibly to the appellants- guilt and is incompatible with his innocence. We agree with the trial judge's findings that the prosecution-s evidence placed the appellant squarely at the scene of crime and his alibi could not stand.

Grounds two of the appeal fails.

had no option but to reject the appellant's alibi.

On ground 3 ofthe appeal, it was contended for the appellants that the sentences of 29 and 27 years imprisonment respectively imposed on the appellants were harsh and excessive. Counsel proposed that the appeal be allowed, the conviction quashed and sentence set aside. 25

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- 5 On the other hand, counsel for the respondent argued that in the circumstances of this case the sentence of 29 and 27 years of imprisonment respectively by the learned trial judge were appropriate, uniform and consistent with the current sentencing ranges approved by this honourable court and prayed that this court upholds the conviction, sustains sentence ald accordingly dismisses the appeal. - 10 The principles upon which an appellate Court can interfere with a sentence were considered in numerous cases; such as Kiualabge Bernard V Uganda Critninql Appeal No.743 oJ 2OO7, Jackson Zita V Uganda Suprerne Coutt Crininal Appeal No.79 oJ 1995, James V R (7950) 78 D. A. C. A 747, Kizito Senkula V tlganda Suprelrl"e Court Crlninal Appeal No.24 of 2OO7, Bashir - 15 Ssctt V llganda Supreme Court Critninal Appeal No,4O of 2OO3 and JViastima Gllbert V tlganda Court of Appeal Crlrninal Appeal No.78O of 2070.

In Ogalo s/o Ouruora V R (1954) 24 D. A. C. A 27O, Court held as follows:-

"The pinciples upon uhich an appellate Court tuill act in exercising its juisdiction

- 20 to reuieu.t sentences are firmly established. I'he Court does not alter a sentence on the mere ground that if members of the Court had been trging the appellant they might haue passed a sometphat different sentence and it tttill not ordinailg interfere uith the discretion exercised bg o tial Judge unless as u)as said in James V R (1950) 18 E. A. C. A 1 14 it is euident that the Judge has acted upon some - 25 utrong pinciple, or ouerlooked some mateial factor. To this ute u.tould also add a third citeion, namely, that the sentence is manifestlg excessiue in uieut of the circumstance s of the cose."

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- 5 The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 make provision of a starting point of a sentence of 35 years imprisonment for murder when death penalty is not imposed. In the instant case, the learned trial judge sentenced the appellants to 29 and 27 years imprisonment way below the starting point. - Regarding consistency and uniformity in sentencing, the Supreme Court has in Mbunya Godfrey v. Uganda, Supreme Court Crlmlnal Appeal No. 4 of 2O11, emphasized the need to maintain consistency while sentencing persons convicted of similar offences. Court stated that; "We are aliue to the fact that no tuto cimes are identical. Houteuer, ute should try as much as possible to haue co nsistencg in s e nte ncing. " 10 15

Guldeline 6 (c) of the Constltution sentencing guide lines (Practice Directionsf 2OO3 provides that every court shall when sentencing an offender take into account the need for consistency with appropriate sentencing levels ald other means of dealing with offenders in respect of similar offences committed in similar circumstances.

In Adupa Dlckens Vs Uganda, C. A. C. A. No.267 of 2017, where this court upheld the sentence of 35 years imprisonment and held that it was neither harsh, nor manifestly excessive to warrant the intervention of the Appellate Court.

In Semanda Chrlstopher & another versus Uganda, CACA NO.77 OF 2O1O, the deceased was assaulted by the appeilant and he later died in hospital. They 25

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5 were sentenced to 35 years imprisonment for murder and on appeal, this Court upheld the sentence

In Bakubye Muzamiru and Another versus Uganda, SCCA No. 56 of 2015 cited with Okello Goeffrey vs Uganda, SCCA No 34 2OL4 court stated that the sentences of more than 20 years imprisonment for capital offences cannot be said to be illegal because they are less than the maximum sentence which is death. Courts have powers to pass appropriate sentences as long as they do not

Having regards to the circumstances of the instant case, we are of the strong view that the sentences of 29 and 27 years imprisonment meted out against the

exceed the maximum sentences provided by 1aw.

- appellants were within the sentencing rarge of similar offences and squarely fall within the consistency and uniformity principle. The sentences were neither harsh nor excessive and we find no reason to fault the learned trial Judge in deciding to sentence the appellants the way he did. We uphold the trial court's sentences of 29 atd 27 years imprisonment against the 1st and 2"d appellants respectively. 15 20

Ground 3 fails.

This appeal is hereby dismissed.

We so order

Dated at Ji+ja-tffi- ico day of ..2023. HON. LADY JUSTICE E,LIZABETII MUSOKE JUSTICE OF'APPEAL A

10 HON. MR. JUSTICE CHEBORION BARISHAKI JUSTICE OF APPEAL

HON. LADY JUSTICE HELLEN OBURA JUSTICE OF APPEAL