Kisitu v Uganda (Criminal Appeal 66 of 2015) [2022] UGSC 21 (14 January 2022)

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

#### AT KAMPALA

[CORAM: OWINY-DOLLO, C. J; ARACH-AMOKO; OPIO-AWERI; **MUGAMBA; CHIBITA; JJ. S. C.]**

### CRIMINAL APPEAL NO 66 OF 2015

#### **BETWEEN**

#### **KISITU MUHAIDIN :::::::::::::::::::::::::::::::::::**

### **AND**

**UGANDA :::::::::::::::::::::::::::::::::::**

[Appeal from the decision of the Court of Appeal at Kampala (Kasule, Bossa, & Kakuru, JJA) dated 28<sup>th</sup> August, 2015 in Criminal Appeal No. 107 of 2009

#### **JUDGMENT OF THE COURT**

This is a second appeal. It arises from the decision of the Court of Appeal which upheld the appellant's conviction for the offence of Murder, contrary to sections 188 and 189 of the Penal Code Act as well as the sentence of thirty $(30)$ years' imprisonment handed down by the High Court of Uganda sitting at Mbarara.

### **Background**

The lengthy background facts as summarised by the Court of Appeal reveal the following. The deceased was the mother of the appellant and Fatuma Nakawesa (PW2). Their father is Hajji Yunus Kaweesa (PW4). The deceased was the second wife to PW4 and lived in his kibanja in Rwekitooma village, Birere Sub- county, in Isingiro District. Before the deceased's death, in February 2007, in the presence of his sister PW2 and the deceased, the appellant had demanded that the deceased sell the said family land (kibanja) in

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Rwekitooma because he wanted to use the proceeds of sale to trade. He also asked the deceased for money. The deceased refused to accede to his demand for sale of the land but gave him shs. $800,000/=$ .

PW 4 also rejected the demand by the appellant that the deceased sell the kibanja. He told the appellant that he could only cultivate the land but could not sell it. After the February incident, the appellant left. The appellant did not ordinarily live with the deceased but at the time of her death he had recently returned to her home in March 2007 after being away for a long time. He had spent between three weeks and one month at the deceased's home.

He was at the home of the deceased on the eve of the deceased's death.

On the evening preceding the death of the deceased, at around 4.00 pm, the deceased went to her sister Abiiba Nakalema's (PW6) home at the instigation of the appellant. The deceased informed PW6 that the appellant had told her to hurry up and visit PW6 because she (PW6) wanted to see her. This was a lie because the deceased and PW6 had spent the previous day together at the deceased's home. The deceased left the home of PW6 at about 5.00 pm the same day. That evening at 8.00pm, PW6 received information that the deceased was missing. The following day, she received further information that the deceased was dead.

PW2 learnt of her mother's disappearance on the same day. Her daughter, Nakayenga Kudra (PW7), Aisha Nanteza (daughter of the appellant) and Mukasa (son of the appellant), who were staying with the deceased informed her of it. They told her that the

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deceased had gone missing at about 3.00pm when she left for PW6's home. When they inquired from PW6 as to whether she had seen the deceased, she replied that the deceased had left her place at about 4.00 pm to return to her home. When the people in the neighbourhood realised that the deceased was missing, Sebuma Mohamadi, (PW 1), the Secretary of the cell, organised people to search for the deceased the next day. Her body was found in a trench on Sunday, the, day after her disappearance and subsequent death. The body had wounds on the head, neck and both ears were cut. Burial took place the next day.

PW7 testified that the appellant was at the deceased's home on the day of her death. He had returned the previous day. All three children born of PW3 to the appellant, namely Nanteza Aisha, Kisitu Isaac and Babirye also stayed with the deceased at the time of her death.

On the day the deceased died, which was a Saturday, James Musheija (PW5), a cattle keeper, saw the appellant twice. The first time was in the morning. The appellant called PW5 and informed him that the deceased had stopped him from grazing the land, yet the land was his and he should be free to graze the land. He saw the appellant again in the afternoon, coming from the direction where the body was found. The appellant was running from the swamp, where the body was later recovered. It was around 4.00 pm.

The appellant went to the home of Nakanwagi Farida (PW8) a niece to his former wife Nalongo Shakira Kyasimire (PW3), on Saturday March 24, 2007 at Kakoba Ward, Mbarara Municipality, at 8.00

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pm. He told PW8 that he was coming from a journey and that he had received information that his mother was dead. He left the next morning.

PW1, PW2, PW4, PW6 and PW7 testified about a misunderstanding between the deceased and the appellant relating to the kibanja on which the deceased was staying. The appellant wanted the deceased to sell part of the land and give him money to trade. Both the deceased and PW4 refused. They permitted him only to cultivate and graze on the land.

On his part the appellant claimed that he left the deceased's home for Lyantonde in Rakai District on the morning of March 24, 2007 at 11.00 am, after breakfast that was prepared by the deceased. He learnt of the deceased's death through a radio announcement of March 26, 2007.

The appellant did not attend his mother's burial.

The trial court convicted the appellant for the offence of murder and sentenced him to 30 years' imprisonment accordingly. The appellant was dissatisfied with the decision of the trial judge and appealed to the Court of Appeal. The later Court after hearing the appeal confirmed the conviction and sentence. Hence this appeal.

The appellant's final Memorandum of Appeal has four grounds. They read:

1. The learned Justices of the Court of Appeal erred in law when they sentenced the appellant to an illegal sentence of 30 years' imprisonment without taking into account the period spent on remand thereby occasioning a miscarriage of justice to the appellant.

- 2. The learned Justices of Court of Appeal erred in law when they ignored to re-evaluate the major contradictions and inconsistencies on record thereby occasioning $\mathbf{a}$ miscarriage of justice to the appellant. - 3. The learned Justices of Appeal erred in law when they upheld the sentence of 30 years' imprisonment which was manifestly harsh and excessive in total disregard of the mitigating factors. - 4. The learned Justices of the Court of Appeal erred in law when they failed to evaluate the evidence in respect of the Appellant's defence of Alibi and wrongly rejected it hence occasioning miscarriage of justice.

# **Representation**

At the hearing, Mr. Albert Mooli appeared for the appellant on State brief while Mr. Kyomuhendo Joseph, Chief State Attorney appeared for the State.

# **Submissions**

Ground 1, in this ground it was argued on behalf of the appellant that the Court of Appeal erred when they confirmed an illegal sentence handed down by the trial court. They contended that the sentence of 30 years' imprisonment was contrary to the provisions of Article 28(8) of the Constitution saying that it exceeded the maximum penalty provided by the law. They added that the

$\mathsf{S}$

maximum sentence for aggravated robbery is death and that following the preponderance of mitigating factors the sentence could have been reduced utmost to life imprisonment which they argued would lead to a maximum sentence of 20 years' imprisonment.

They argued further that in the circumstances the 30 years' term of imprisonment was in excess of the statutory 20 years provided for under Section 86(3) of the Prisons Act.

The other argument on behalf of the appellant regarding illegality of sentence was that the period the appellant had spent on remand prior to conviction was not taken account, pursuant to Article 23(8) of the Constitution. It was contended that in **Umar Sebide** vs Uganda, SCCA No.23 of 2002 Court held that the period spent on remand has a definite bearing on the sentence to be imposed by court.

The respondent, supported the sentence which was confirmed by the first appellate court. Regarding provisions in Article 28(8) it was submitted that it relates to charges based on acts and which constituted criminal offences at the time they omissions took place but which could no longer constitute offences or constitute different offences or carry different penalties at the time of trial, conviction or sentencing.

Regarding the period spent on remand related by Article 23(8) of the Constitution, it was submitted on behalf of the respondent that they agreed with the finding of the Court of Appeal which had considered the matter and that had court not considered the

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period spent on remand the appellant would have been sentenced to the maximum penalty of death.

In ground 2, it was submitted by the appellant that the learned Justices of the Court of Appeal erred in law when they upheld the conviction of the appellant based on evidence full of contradictions and inconsistencies. It was contended that the lower courts fell short of the standard required by law in cases which are based on circumstantial evidence. In this connection the appellant pointed out that no weapons had been linked to the appellant and that there was no scratch mark left on the appellant resulting from a physical struggle. It was submitted also that the appellant's alibi was not disproved and that the evidence of PW3, PW5 and PW8 was full of gaps and contradictions. It was contended that failure to evaluate that evidence caused a miscarriage of justice.

For the respondent it was submitted that the Court of Appeal subjected the evidence which was submitted at the trial to fresh scrutiny before they confirmed the conviction of the appellant. It was submitted also that the only contradiction and inconsistence the Court of Appeal found was of the date the deceased died, whether it was 2<sup>nd</sup> March 2007, 22<sup>nd</sup> March, 2007 or 23<sup>rd</sup> March 2007 and that such contradictions were minor. The respondent contended that the appellant has not proved this ground.

In ground 3 it was submitted on behalf of the appellant that the Court of Appeal erred in law when it upheld the sentence of 30 years which was manifestly harsh and excessive and in total disregard of the mitigating factors. In this connection, it was argued that the Justices of the Court of Appeal did not consider

$\overline{7}$ the mitigating factors such as the period the appellant spent on remand and that had they done so the appellant would have been sentenced to a lesser term of imprisonment. It was further argued that the appellate Justices considered only the period spent on remand and did not consider the mitigating factors such as the fact that the appellant was 50 years old and that he was willing to reform. He cited Tukamuhebwa David Junior & Anor vs Uganda, **SCCA No.59 of 2016** in support of his submissions.

Counsel for the respondent submitted that the decision of both the trial court and the Court of Appeal on sentence was appropriate. He added that both the High Court and the Court of Appeal had the mitigating factors in mind and that their respective decisions were influenced by those factors.

Counsel pointed out that the Court of Appeal could not interfere with the sentence imposed by the trial court except in cases where the sentence was manifestly excessive or so low as to amount to miscarriage of justice. Counsel contended that he agreed with the Court of Appeal finding that there was no need to interfere with the sentence.

In ground 4 the appellant's argument is that the Justices of the Court of Appeal caused a gross miscarriage of justice when they rejected his defence of alibi to the effect that at the time of the incident he had left home and gone away for work in Isingiro District.

For the respondent, it was submitted that the defence of alibi advanced by the appellant was duly evaluated by the trial judge

and later by the Court of Appeal and that after due evaluation the defence of alibi was rejected.

## Consideration by the court

We have appraised the written submissions tendered before us as well as the authorities available. We have also looked at the record and given consideration to it.

In Kifamunte Henry Vs Uganda, SCCA No. 10 of 1997, this court held that it is the duty of the first appellate Court to rehear the case on appeal by reconsidering all the materials which were before the trial Court and come to its own conclusion and that failure to do so amounts to an error of law. This being a second appeal this Court does not have the onus to re-evaluate evidence unless it has been shown that the first appellate Court did not re-evaluate the evidence on record.

In Areet Sam Vs Uganda, SCCA No. 20 of 2005 this court reiterated the above duty in the following terms: -

"We also agree with Counsel for the respondent that it is trite law that as a second appellate Court we are not expected to re-evaluate the evidence or question the concurrent findings of facts by the High Court and Court of Appeal. However, where it is shown that they did not evaluate or re-evaluate the evidence or where they are proved manifestly wrong on findings of fact, the Court is obliged to do so and to ensure that justice is properly and truly served."

We shall follow the principle above in resolving the four grounds in this appeal.

We shall resolve ground 2 and 4 together because they relate to the same subject matter and later deal with grounds 1 and 3 relate to the sentence handed down to the appellant.

In ground 2 the appellant in his submissions argues that the major contradictions and inconsistences were not considered in his favour by the Court of Appeal. In ground 4 he argues that his defence of alibi was wrongfully rejected by the Court of Appeal.

We note that the appellant raised ground 2 at the Court of Appeal in his memorandum of appeal as ground 3. The Court of Appeal evaluated the evidence and came to the conclusion that the trial Judge properly applied the principles relating to circumstantial evidence before convicting the appellant.

The Court of Appeal then went on to evaluate discrepancies in evidence which included the date of death of the deceased. It found that the deceased died on Saturday March 24, 2007. It further found that the alleged discrepancies were satisfactorily explained by the witnesses and that the differences in dates were not because of deliberate untruthfulness of the witnesses. Court found that the witnesses experienced faded memories because trial of the case did not happen until after three years.

The issue of the defence of alibi was also evaluated by the Court of Appeal. It noted that PW4 and PW7 saw the appellant on the day the deceased died in Rwekitooma and that even the appellant conceded that he was there.

We are satisfied that the Court of Appeal properly explained the discrepancy in the prosecution evidence and that it evaluated also the circumstantial evidence that pointed out the accused person as having killed the deceased.

We must observe that the accused person did not raise ground 4 at the Court of Appeal. Needless to say, the court evaluated it while evaluating the evidence as whole. In our view raising the said ground in this court came as an afterthought.

We find no merit in grounds 2 and 4.

In grounds 1 and 3, the appellant argues that the sentence of 30 years' imprisonment was illegal, first because the trial court did not take into account the remand period and second that the sentence was manifestly harsh and excessive regardless of the mitigating factors.

We note that this ground was raised at the Court of Appeal as an alternative ground in ground 4. In this appeal however it has been split into two but in essence it relates to appellant's sentence of 30 years' imprisonment handed down to him by the trial court and confirmed by the Court of Appeal.

We find it worthwhile to reproduce the entire sentencing passage inclusive of the reasons given by the trial judge;

"I have considered the fact that the accused is a man aged about 50 years who has been on remand for 3 years and he is a first offender. He stands convicted of the worst of the capital offences of murder and murder of his own mother. The deceased, from the injuries found must have died a very

painful death. The accused used cruel violence. He assaulted and strangled the deceased to death. The accused displayed lack of respect and value for human life due to material greed for the family property he was being prevented from selling. His mother was looking after his children after his marriage had failed for whatever reasons therefore he is not a man of responsibility in society. He is a threat to society which this court has a duty to protect.

I have accepted, with difficulty, not to sentence him to death. I will order that he keeps away long enough from society to suffer isolation as a punishment and to give him enough time to reform. I find that a long sentence will serve this purpose.

I sentence the accused to $(30)$ thirty years' imprisonment.

**He has a right to appeal.**" Underlining for our emphasis.

The Court of Appeal evaluated the appellant's sentence and stated as follows;

"Bearing the above principles in mind, we find that the learned trial judge gave detailed reasons for the sentence. He considered all the mitigating and aggravating factors e.g. the fact that the victim was related to the appellant and she was taking care of his children, was considered as an aggravating factor.

In mitigation the learned judge considered the age of the appellant and also considered the years he had spent on remand.

Considering that the maximum sentence for the offence of murder which the appellant was charged with is death, we do not agree with Counsel for the appellant that a sentence of 30 years' imprisonment in the circumstances of this case is **manifestly excessive."** Underlining for our emphasis.

Therefore, we find no valid reason advanced by the appellant for us to depart from the concurrent finding by the lower courts as far as the sentence of the appellant is concerned.

We find no merit in grounds 1 and 3 either.

Before we take leave of this matter, we wish to comment on appellant's submission that the sentence of life imprisonment is equal to 20 years' imprisonment as provided for under Section $86(3)$ of the Prisons Act.

This court in its recent decision of Atugonza and 4 Others vs Uganda, SCCA No.11 of 2018, in reference to Tigo Stephen vs Uganda, SCCA No.8 of 2009, stated as follows;

"The trial court sentenced the appellant to life imprisonment which was confirmed by the Court of Appeal. Nevertheless, in the course of examining whether the sentence was harsh or excessive the Court of Appeal stated that life imprisonment was deemed to be 20 years' imprisonment in accordance with Section 86(3) of the Prisons Act.

This, respectfully is a wrong statement of law in view of Tigo Stephen vs Uganda (supra). As regards this and similar cases therefore the sentence of life imprisonment means

imprisonment for the natural lives of the appellants." Underlining for our emphasis.

Consequently, we uphold the appellant's conviction and confirm his sentence of 30 years' imprisonment with effect from the date when the appellant was convicted.

This appeal lacks merit. It is accordingly dismissed.

Dated at Kampala this $\mathbb{R}$ day of $\mathbb{R}$ day of $\mathbb{R}$ 2021

h. Cha

Hon. Justice Alfonse Chigamoy Owiny-Dollo **Chief Justice**

Hon. Lady Justice Stella Arach-Amoko

Justice of the Supreme Court

Hon. Justice Rubby Opio-Aweri Justice of the Supreme Court

Hon. Justice Paul Kahaibale Mugamba Justice of the Supreme Court

Hon. Justice Mike Chibita Justice of the Supreme Court

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