Kisembo v Uganda (Criminal Appeal 366 of 2020) [2025] UGCA 140 (14 May 2025)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# **HOLDEN AT MASINDI**

[Coram: Dr. F. Zeija, DCJ; C. Gashirabake, and K. K. Katunguka (JJA)]

### CRIMINAL APPEAL NO. 0366 OF 2020

#### **BETWEEN**

KISEMBO PONSIANO ....................................

#### **AND**

**UGANDA ...................................** ......................................

[An appeal from a Judgment of the High Court of Uganda sitting at Hoima by Masalu Musene, J.) in Criminal Session Case No. 0152 of 2013 delivered on the 8<sup>th</sup> day of August, 2018]

### JUDGMENT OF THE COURT

#### **Introduction**

- [1]. The appellant was indicted and convicted by the High Court of the offence of murder contrary to Sections 188 and 189 of the Penal Code Act and sentenced to life imprisonment. - $[2]$ Being dissatisfied with the decision of the trial court, the appellant filed this appeal on the following grounds; - 1. The learned trial Judge erred in law and fact by failing to properly evaluate the appellant's defence of alibi, leading to an erroneous conclusion that the prosecution had proved participation beyond reasonable doubt. - 2. The Judge erred in drawing adverse inferences from the appellant's absence at the deceased's burial, and wrongly used it to support the finding of guilt.

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- 3. The Judge erred in relying on uncorroborated and potentially biased identification evidence from PW2 and PW3, without sufficient caution regarding its dangers, and thereby wrongly found it sufficient to support a finding of murder against the appellant. - 4. The Judge erred in law and fact when he failed to consider the possibility of false implication due to a known land dispute between the appellant and key prosecution witnesses (PW1 and PW2), who are close relatives. - 5. The Judge failed to address inconsistencies in the prosecution case, including: *a.* Timing and presence of witnesses at the scene; - b. The alleged threats and reporting timeline; - c. Omission to call a key informant, Kamugisha Milton. - 6. That the learned trial judge erred in law and fact when he sentenced the appellant to life in prison, which sentence is manifestly excessive and harsh in the circumstances.

### **Background**

- $[3]$ The facts of the case as presented before the trial court are that on 24<sup>th</sup> June. 2013 at 8.30 am at Kanyabebe Village in Kanyabebe Parish, Kyakabadima Sub-County in the Kibaale District, Mayoga Florence (herein after; the deceased) was found dead in her groundnuts garden by her neighbour Niyibizi Atanazi (PW3). The deceased's biological son Kisembo Ponsiano (the appellant), was indicted for the offence of murder. Upon arraignment in court, he pleaded not quilty. - [4] The prosecution presented three witnesses including an eye witness (Nsengiyumba Alozio-PW2). In his testimony, the appellant set up the defence of alibi to the effect that he was at his home in Katikara on the fateful day of 24.6.2013

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with his wife and children, and that he did not know what had happened until 30<sup>th</sup> June, 2013 when he was arrested by police.

- [5] The trial Court found that the incident took place during broad day light at 8:30 a.m. and that the appellant was properly identified killing his mother by PW2, and therefore his defence of Alibi could not stand. - [6] The court was satisfied that the appellant, was properly identified as the person who killed the deceased and held that the prosecution had proven the ingredients of the offence beyond reasonable doubt. The appellant was found guilty and convicted of the offence of murder contrary to Sections 188 and 189 of the Penal Code Act and sentenced to life imprisonment.

#### **Representation**

$[7]$ At the hearing of the appeal, Mr. Kasangaki Simon, on State brief appeared for the appellant while Mr. Sam Oola a Senior Assistant Director Public Prosecutions represented the respondent. Both parties filed written submissions which were adopted as their legal arguments.

#### **Appellant's submissions**

$[8]$ On ground one of the appeal, Counsel for the appellant submitted that the trial Judge erred in law and fact when he did not subject the appellant's defence of alibito proper judicial scrutiny. Counsel relied on the decision in **Sekitoleko v. Uganda** [1967] EA 531) to submit that once the defence of alibi is raised, the burden lies on the prosecution to place the accused at the scene of crime, beyond reasonable doubt. Counsel stated that the appellant testified that he was at his home in Katikara with his wife, Nyamaisi Marion, and their three children in the garden. attending to routine family work on the day of the incident.

It was Counsel's contention that the prosecution did not present any credible rebuttal to this alibi but instead relied on the circumstantial evidence of the eye

**Atto**

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witnesses.

- [9] On the second ground, Counsel for the appellant submitted that the adverse inference drawn from the appellant's absence at the burial of the deceased—his mother, was prejudicial. That this inference unfairly coloured the trial Judge's findings and violated the presumption of innocence enshrined in **Article 28(3)(a)** of the Constitution. - [10] With regards to the third ground, Counsel for the appellant faulted the trial court for heavily relying on the identification and circumstantial evidence of PW2 (Nsengiyumba Alozio) and PW3 (Nivibizi Atanazi) without adequate caution required in cases of visual identification under difficult conditions, as laid down in Abdalla Bin Wendo v. R [1953] 20 EACA 166. - [11] Counsel submitted that PW2, a cousin to the appellant, claimed to have seen the appellant committing the murder from a distance of 30 metres but made no effort to intervene or raise an immediate alarm. Counsel submitted that his explanation that he feared for his life is insufficient justification for not reporting until later. Further still, both PW1 (Emmanuel Tabikwira) and PW2 had a land dispute with the appellant which was the motive for false implication, was not adequately weighed by the trial court. - [12] On the fourth ground, Counsel for the appellant submitted that the trial Judge failed to adequately address the hostile family dynamics and land disputes between the appellant and the key prosecution witnesses. Counsel stated that PW1, the father of the appellant, had a prior land conflict that resulted in the appellant's imprisonment. That this background raised a real and reasonable possibility of false implication which the trial Judge failed to analyse. - [13] Regarding ground five, it was Counsel's contention that the testimonies of PW2 and PW3- the eye witnesses were riddled with numerous contradictions and inconsistencies. That PW2 claimed to have seen the accused cutting the

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deceased, yet did not intervene or immediately report, and admitted he was hiding in fear. Further that PW3 merely saw the accused "running away" unarmed and deduced guilt from that fact. Counsel submitted that this evidence was speculative and fell short of direct evidence.

Counsel also submitted that PW1 testified that it was Kamugisha Milton who reported the incident and that the prosecution's failure to call him as a material witness undermined the prosecution's case.

- [14] Counsel submitted on the sixth ground that the trial Judge erred in law and fact when he imposed a sentence of life imprisonment which was manifestly excessive and harsh in the circumstances, and failed to give adequate consideration to key mitigating factors and principles of sentencing. That while the court rightly expressed revulsion at the act, the sentencing was unduly influenced by emotive and moralistic language, which clouded the impartial assessment of the appropriate punishment. - [15] Counsel invited court to consider several cases where sentences of life imprisonment were reduced to fixed terms of years and cited several decisions including; Kisitu Majaidin alias Mpata v. Uganda, C. A. Criminal Appeal No. 28 of 2007, Tumwesigye Anthony v Uganda, Court of Appeal Criminal Appeal No. 46 of 2012 [2014] UGCA 61 and Kasaija v Uganda, Court of Appeal Criminal Appeal No. 128 of 2008 [2014] UGCA 47. - [16] Counsel concluded by praying that the appeal be allowed, the conviction for murder be quashed and the appellant acquitted. In the alternative, the sentence of life imprisonment be set aside and impose a sentence of 15 years' imprisonment taking into account the period spent on remand.

## **Respondent's submissions**

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- [17] In reply, Counsel for the respondent opposed the appeal and supported both the conviction and sentence passed by the trial Court. - [18] On ground one, it was the respondent's submission that the trial Judge was alive to the fact that the appellant had put up a defence of alibi - that he was at his home at Katikara on the fateful day of 24.06.2013 with his wife and children. Further that, the trial judge then made the finding that the incident took place during broad daylight at 8.30 am and the accused was properly identified killing his mother and the defence could not stand. Further that, the accused was properly placed at the scene of crime. - [19] Counsel for the respondent submitted that the evidence of PW2 and PW3 discredited the defence of alibi set up by the appellant and the trial Judge cannot therefore be faulted in this regard. - [20] On ground two, Counsel submitted that this ground offends Rule 66(2) of the **Judicature (Court of Appeal Rules) Directions** and ought to be struck out. Counsel submitted that it does not specify the point of law or fact or mixed law and fact which is alleged to have been wrongly decided. Counsel further submitted that PW2 and PW3 placed the appellant at the scene of crime and his conduct of running away from the scene and failing to attend the burial of his own mother was that of a guilty person. - [21] On the third ground, regarding the identification evidence of PW2 and PW3, Counsel for the respondent submitted that the conditions favoured correct identification of the appellant. That the appellant was well known to both PW2 and PW3 prior to the incident which occurred at 8.30 am in broad day light, PW2 was 30 meters away when he saw the appellant cut the deceased, and PW3 was 50 meters away when he saw the appellant flee from the scene of crime. Counsel stated that the omission by the trial Judge to warn himself and the assessors was

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therefore not fatal and did not occasion a miscarriage of justice.

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- [22] Regarding corroboration, Counsel stated that the evidence of PW2 was corroborated by the evidence of PW3, and the evidence of PW1 that the appellant had previously threatened to kill PW1 and the deceased so he could inherit the land. Counsel concluded that the identification evidence of PW2 and PW3 was cogent, unchallenged, uncontroverted, reliable, credible and truthful. - [23] On the fourth ground, it was Counsel's submission in reply that the evidence of the land dispute as rightly found by the trial Judge proved the motive by appellant to kill his mother- the deceased. Further that the appellant had been imprisoned three months' prior for threatening to kill PW1 and his wife- the deceased. - [24] On ground five, Counsel highlighted that it offends Rule 66(2) of the Judicature (Court of Appeal Rules) Directions. Further that there were no inconsistencies in the accounts of PW2 and PW3, while the former saw the appellant cut the deceased, the later saw him running away shortly thereafter. In addition, the failure to call Kamugisha Milton as a witness does not amount to an inconsistency. - [25] Finally, on ground six, Counsel for the respondent submitted that the appellant hacked his own mother to death because of greed. That he committed a very heinous and grave offence, and the sentence of life imprisonment is appropriate against the appellant. Counsel cited several decisions in support, including; Muyingo Ibrahim and Others V Uganda Court of Appeal Criminal Appeal No. 149 and 185 of 2021, Mwikirize William V Uganda Court of Appeal Criminal Appeal No. 0349 of 2014 and Kaddu Kavulo Lawrence V Uganda Supreme Court Criminal Appeal No. 72 of 2018. - [26] Counsel prayed that the sentence of life imprisonment be upheld and the appeal dismissed.

Page 7 of 13 # Consideration of the appeal

[27] The duty of the first appellate court stated under Rule 30(1) of the Judicature (Court of Appeals Rules) Directions, is to re-appraise all material evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that it neither saw nor heard the witnesses testify. This principal was also stated in Henry Kifamunte V Uganda, Supreme Court Criminal Appeal No.10 of 1997.

In this regard, we have carefully read the record of the trial court, the submissions of both counsel and the authorities cited, and others not cited by the parties.

#### Resolution of the appeal

#### Ground one:

- [28] The trial Judge was faulted for failing to properly evaluate the appellant's defence of alibi. As rightly stated by Counsel for the appellant, it is trite that once an alibi is raised, the burden lies on the prosecution to place the accused at the scene of crime, beyond reasonable doubt (See; Sekitoleko v. Uganda [1967] EA 531). - [29] At trial, PW2 (Nsengiyumba Alozio) testified that on 24.6.2013, at 8:30am, while in his garden slashing grass to prepare for rice plantation, he saw Kisembo (the appellant) cutting the mother. That PW2 raised an alarm once, but then hid in fear. PW2 stated that his garden was 30 meters away from where the incident occurred. PW3 (Niyibizi Atanazi) stated that he heard a sound of a cry once, and was thereafter the appellant passed by- running. That PW3 then went to his neighbour's home - PW1 (Emmanuel Tabikwira) where he found the wife lying dead in the garden, with cuts on the head, neck and cheek. - [30] On page 6 of its judgment, the Court stated as follows;

"It is the finding and holding of this court that since the incident took place during broad day light at 8:30 a.m. and accused was properly seen killing his mother by PW2, his defence of Alibi cannot stand. The accused was properly

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# pinned to the scene of crime. This is not to forget the testimony of PW3. Niyibizi Atanazi who was at his banana garden and saw the accused running away from the scene of crime,..."

[31] Having duly re-appraised the material evidence, we agree with the submissions of Counsel for the respondent that the conditions for correct identification of the appellant were favourable. The trial Judge considered the defence of alibi and concluded that the appellant had been properly placed at the scene of crime. We accordingly find no merit in ground one and it fails.

#### Ground two:

- [32] Counsel for the appellant contended that the adverse inference drawn from the appellant's absence at the burial of the deceased—his mother was prejudicial and violated the presumption of innocence enshrined in Article 28(3)(a) of the Constitution. In reply, Counsel for the respondent submitted that this ground offends Rule 66(2) of the Judicature (Court of Appeal Rules) Directions and ought to be struck out. - [33] Rule 66(2) of the Judicature (Court of Appeal Rules) Directions provide as follows:

"The memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appeal the matters of law of great public or general importance wrongly decided."

[34] We agree with the submissions of Counsel for the respondent that this ground ought to be struck off as it does not specify the point of law or fact or mixed law and fact which is alleged to have been wrongly decided. Ground two is hereby struck out for offending Rule 66(2) of the Judicature (Court of Appeal Rules) Directions.

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#### Ground three:

- [35] On this ground, the trial court was faulted for heavily relying on the identification and circumstantial evidence of PW2 (Nsengiyumba Alozio) and PW3 (Niyibizi Atanazi) without adequate caution required in cases of visual identification under difficult conditions, as laid down in Abdalla Bin Wendo v. R [1953] 20 EACA 166. Counsel for the respondent conceded that the trial Judge did not caution himself or assessors, but that the conditions favoured correct identification as such, the omission was not fatal and did not occasion a miscarriage of justice. - [36] The courts have over the years evolved rules of practice regarding conviction based solely on visual identification evidence because such evidence can give rise to miscarriage of justice. The Supreme Court in Abudalla Nabulere & 2 Ors v Uganda [1978] UGSC opined that the judge should examine closely the circumstances in which the identification came be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. That all these factors go to the quality of the identification evidence. That if the quality is good, the danger of mistaken identity is reduced but the poorer the quality, the greater the danger. - [37] The Supreme Court further observed that when the quality of identification is good, as for example, when the identification is made in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no other evidence to support the identification evidence; provided the court adequately warns itself of the special need for caution. - [38] In the instant case, the evidence on the court record indicates that PW2 saw the appellant cut the deceased at 8.30 am on 24.06.2014 at a distance of 30 meters. Further that PW3 saw the appellant run away from the scene of crime, thereafter. The appellant was known to both PW2 and PW3, as a relative and neighbour respectively. The conditions for correct identification were in this regard


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favourable. In his evidence, on page 2 on the record of proceedings, PW1 stated that:

"The accused had threatened to kill all of us so that he would inherit over [sic] Kibanja and become rich I had bought accused 3/4 of an acre and 1 added him another. He waited [sic] ours as well, I had reported to Kyabaradiima Police. He had been earlier arrested and imprisoned for 3 months."

[39] The evidence of PW1 corroborates the evidence adduced by PW2 and PW3. All this evidence points to the correctness of the identification and there was no possibility of mistaken identity. We agree with the trial Judge that the appellant was properly identified.

This ground of appeal fails.

### Ground four.

[40] This ground faults the trial Judge on his failure to consider the possibility of false implication due to a known land dispute between the appellant and key prosecution witnesses (PW1 and PW2), who are close relatives. To the contrary, as observed in ground three above, the evidence of PW1 indicates that the appellant had been imprisoned three months' prior for threatening to kill PW1 and the deceased over the land dispute. It is our finding that this can be motive for the offence committed. We find no merit in this ground of appeal and the same fails.

#### Ground five:

[41] Regarding ground five, it was Counsel's contention that the testimonies of PW2 and PW3- the eye witnesses were riddled with numerous contradictions and inconsistencies. We agree with the submissions of Counsel for the respondent that this ground offends Rule 66(2) of the Judicature (Court of Appeal Rules) Directions. Counsel did not specify the inconsistencies in the accounts of PW2 and PW3, this around is accordingly stuck out.

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# Ground six:

- [42] On this ground, the trial Judge was faulted for sentencing the appellant to life in prison, that this sentence is manifestly excessive and harsh in the circumstances. - [43] The principles upon which an appellate court should interfere with a sentence were considered in Kyalimpa Edward versus Uganda, Criminal Appeal No. 10 of 1995, the Supreme Court referred to R vs. De Haviland (1983) 5 Cr. App. R(s) 109 and held as follows:

"An appropriate sentence is a matter for the discretion of the sentencing Judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this Court will not normally interfere with the discretion of the trial Judge unless the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owousa vs. R (1954) 21 E. A. C. A. 270 and R vs. Mohammed Jamal (1948) 15 E. A. C. A. 126".

[44] In sentencing the appellant, the trial Court stated that;

"The convict not only breached one of the Ten Commandments, but violated the Laws of the land by killing his mother in cold blood. As counsel for state submitted, it was a very cruel, crude, shameful, senseless and uncivilized act which cannot be condoned by this court."

[45] We find no reason to interfere with the sentence passed down by the trial Judge on account of any illegality. In addition, we find that it was appropriate in the circumstances. Accordingly, this ground also fails.

#### **Decision of Court**

[46] In the final result, we find no merit in all the grounds of the appeal and it stands dismissed. The appellant will serve his sentence on the terms handed down by the trial Judge.

We so order.

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Dated and delivered at Masindi this ....

$\ldots\ldots 2025.$

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AMAAAA . . . . . . . . . . . . Flavian Zeija (PhD) DEPUTY CHIEF JUSTICE

... day of $\mathbb{R}$

Christopher Gashirabake JUSTICE OF APPEAL

Ketrah Kitariisibwa Katunguka

**JUSTICE OF APPEAL**

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