Kamugisha v Uganda (Criminal Appeal 60 of 2001) [2003] UGSC 55 (25 June 2003)

REPUBLIC OF UGANDA

IN THE SUPPREMIS COURT OF UGANDA AT MIENIGO

## CRIMINAL APPEAL NO.60/2001

MULENGA, KAROKORA, TSEKOOKO, CORAM: ODER. KANYEIHAMBA, J. J. S. C.

## **BETWEEN**

APPELLANT KAMUGISHA SAYUNI ....

## AND

**RESPONDENT** UGANDA .......

(Appeal from a decision of the Court of Appeal of Uganda at Kampala before the Hon. Mr. Justice C. M. Kato JA, Hon. Justice G. Engwau, JA, Hon. Justice A. Twinomujuni, JA, in Criminal Appeal No. 1 of 2001 dated 7<sup>th</sup> December 2001).

## JUDGMENT OF THE COURT

The appellant was tried and convicted by the High Court at Fort Portal of the murder of Alinda, a child of three months of age, on 24.8.97.

His appeal to the Court of Appeal was dismissed.

He has appealed to this court, on one ground of appeal, which is that the Court of Appeal erred in law and in fact when it

upheldtheappellant,sconvictionbasedoncircumstantia] evidence that did not irresistibly point to his guilt'

The thrust of the argument of Mr. Sekabojja, learned counsel for the appellant, is that the appellant made on unsworn statement in his defence. He said that contrary to the prosecution evidence from PW2, Phonia T\uinomuhungi, who was the mother of the child, the appellant was the father of the child.

Learned counsel also submitted that as the child was killed in the house where only the appellant and his wife was present' the chitd could have been killed by another person' He criticised the learned JJA for upholding the rejection of the appellant's defence with resPect.

We do not find any merit in the learned counsel's submission and the ground of appeal. There was ample circumstantial evidence which irresistibly proved the appellant's guilt beyond reasonable doubt.

onthemorninginquestionPW2leftthechildsleepinginbed, The appellant was outside. He told her to go and get brooms' pw2 teft the house to do so. when she was about 100 meters away, then she heard the child crying' She rushed back into the house, and found the child dying' The appellant was back

into the house, lying on his bed. PW2 rushed out and called the appellant's sister. When they asked the appellant what had happened to the child, he kept quiet and went outside subsequently, the appetlant informed those who had gathered at the house due to the incident that the child had been sick.

Dr. John Ruhweza who carried out a post-mortem examination of the body of he child found scratches on the neck of the child and testified that the child died of asphyxia and fracture of the 3'd and 4th cervical bones.

The trial court found that the appellant had a motive to kill the deceased, because he was not the father of the child. There had been acrimony between the appellant and the mother of the child (PW2) for that reason the local L. C.l Chairman had intervened to try to settle the dispute. The Appellant's motive strengthened the prosecution case against the appellant.

We are satisfied that there was ample evidence to support the appellant's conviction.

In the result this appeal is dismissed.

Dated at Mengo this 25th dag of Jurue, 2003.

\

A. H. O, ODER Justice of the SuPreme Court

J. W. TSEKOOKO Justice of the SuPreme Court

A. N. KAROKORA Justice of the SuPreme Court

J. N. MULENGA Justice of the SuPreme Court

G. W. Kanyeihamba Justice of the Supreme Court

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