Lubango v Uganda (Criminal Appeal No. 827 of 2014) [2023] UGCA 33 (30 January 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

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

# CRIMINAL APPEAL NO. 827 OF 2014

#### LUBANGO ABRAHAM:::::::::::::::::::::::::::::::::::

$10$

### **VERSUS**

#### **UGANDA :::::::::::::::::::::::::::::::::::**

[Appeal from the decision of the High Court of Uganda sitting at Mbale (**Hon.** Justice Lawrence Gidudu) delivered on 19th September 2014 in Criminal Session Case No. 127 of 2012]

#### 15

## JUDGMENT OF THE COURT

The appellant in this case was convicted of the offence of murder c/s 188 and 189 of the Penal Code Act and sentenced to 40 years' imprisonment.

The facts of the case as established by the prosecution and stated by the learned trial judge are that Kakayi Prisicilla was found dead in her house on 7th 20 November, 2011, the appellant was arrested for her murder, indicted and he denied the charges. That a day before her body was discovered, the deceased was planning a journey to Kenya in company of the appellant. The appellant was at the deceased's house where he usually stayed as the two were herbalists. That they had planned to leave very early. The next day, the deceased's son found her

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5 house locked but the animals they reared were still inside. In the afternoon, they decided to open the behind door only to frnd her dead. She had suffered a fractured skull with the brain matter exposed. A post mortem report concluded that she died of hemorrhagic shock due to excessive bleeding. The appellant who had spent a night in the same house was missing. TWo days later, he was sighted in Lwakhakha trading Centre and arrested after a chase. 10

The appellant denied being in the deceased's house or village that day and night. It was his defence that on the fateful day ald night, he was with his sister in Mbale Town helping her with shop keeping. The following day the sister sent him to Lwakhakha trading Centre to shop for goods for sale. That while there he was ambushed by a mob that took him to the police but he was not charged. He

contended that he was later charged to frame him up as revenge for the reports he made about villagers who possessed iilegal guns.

He was later chargcd, indicted ald he pleaded not guilty. He was convicted of the said murder and sentenced to 40 years imprisonment.

- Being dissatisfied by the decision of the learned trial judge, the appellant now appeals under the following grounds; 20 - 1. "The learned tial judge erred in lou and fact in dismissing the appellant's defence of Alibi luithout ong further euidence from the proseoltion thus arriuing at d urong decision to conuict the accused.

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- 5 2. The learned trial judge erred in lou and fact ln his assessment, interpretation and application of the laut on circumstantial euidence, and there bg arriuing at urong decision to conuict. - 3. The leorned tial judge ened in Ia ut and in fact in sentencing the accused to horsh and excessiue sentence in the circum,stances of the case

# 10 Representations:

At the hearing, the Appellant was represented by Ms. Ms. Kevin Amujong on State Brief; while Ms. Immaculate Angutuko Chief State Attorney represented the respondent.

Due to the COVID-19 Pandemic restrictions, the appellant was not physically 15 present in court but attended the proceedings via video link to Prison. Both parties sought, and were granted, leave to proceed by way of written submissions which were already on the court record.

# Appellant's Submissions:

20 25 On ground one, it was submitted for the appellant that the defence pointed out that PW3 did not tell police that the accused was in the home of the deceased 3 times the day before she died. That PW3 Mafukimalayi Partrick told court arrd police that the appellant had been at the deceased-s house but due to panic caused by his mother's death he did not state to police that he slept in the house with the deceased. That the trial judge believed PW3-s explanation and treated it as minor. Counsel contended that a critical analysis of Exhibit DEXl the police

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- 5 statement does not show that PW3 stated that he saw the appellalt in the deceased's home a night before her body was found. That PW3's statement was recorded immediately yet the learned trial judge never considered the relevarlce of firsthand information. He referred court to Obwalatum Francis vs Uganda SCCA No. 3O of 2O 15 for the proposition that firsthand information often 10 provides a good test by which the truth or accuracy of the later statements can be judged, thus providing a safe guard against later embellishments or the deliberately made up case. Truth will often come out in the first statement taken at the time when recollection is very fresh and there has been no opportunity for consultation - Further, the inconsistencies in the statement of PW3 Mafukimalayi made at police and the evidence he gave in court were not minor as the trial judge put it. That had PW3 seen the accused, why did he eliminate such vital evidence from the statement only to reca1l it at a time he was giving evidence in court? 15

The appellant raised a matter that he was being framed for having reported some villagers for having guns and that PW6 Clement Wamalwa did not tell court that the appellarlt had not reported them. That the prosecution did not disprove this and it did not present more evidence in rebuttal of the same as stipulated in 5.76 of the Trial on Indictment Act. 20

Counsel further submitted that the evidence of DW2 Salifu Margret the appellant's sister who affirmed the appellant-s alibi of attending the deceased's burial for around 5-6 minutes does not in aly way, disprove the accused-s alibi 4lPage 25

- 5 on the material day of the alleged murder as the learned trial judge found it to be. That there is nothing wrong to attend a burial to pay condolences and leave the burial. That there is no law specifying the time one should spend at a buria.l and the analysis on burial in line with the defence of alibi was clearly misplaced as it has no correlation with the alibi of the appellant. - The appellalt was arrested by a mob that called him a thief and that later at police he was informed that he was the one who killed the deceased. That there was no need to stretch the Judge-s imagination for it would not be the first time for a mob to attack al innocent person. That this evidence should be weighed against the prosecution witnesses evidence who told court that the accused had 10 - slept at the deceased's home because they had an early journey to Kenya. That if the appellant had planned to go to Kenya with the deceased why then was he still in Uganda when he was arrested after a whole 2 days of discovering the body of the deceased. That if he was indeed guilty; he would have fled to Kenya. 15

He cited Matete Sam v Uganda SCCA No.53 of 2OO1 for the proposition that where an accused person pleads an alibi as a defence, the prosecution must do more than merely place him or her on the scene of the crime. They must disapprove or otherwise discredit the defence of alibi. The mere putting the accused on the scene of crime is not enough. 20

DW2 Safi1u clearly confirmed in evidence, which corroborated DW1, that the appellant had a lock up shop in the village of the alleged murder Buwanunyonyi village which he later sold. That when he separated with his wife, he was all along SlPage 25

- 5 staying with DW2 Safilu at the shop premises. That the prosecution merely attempted to place the appellant at the scene of crime and did not in any way discredit the appellant's alibi. That DW2's evidence was not discredited and or challenged in any,way by the prosecution yet it was their burden to discharge. That the prosecution had mere statements from 2 witnesses PW4 and PWS which did not show that the appellant arrd the deceased were working together, stayed 10 - together and had planned to go to Kenya. That the appellant was not placed at the scene of crime in light of his alibi that was not discredited.

On ground two, it was submitted for the appellalt that there was no single direct evidence to prove the ingredient that it was the appellant responsible for causing

death of the deceased. That the learned trial judge held that the appellant was the last person to be seen with the deceased alive and as such, these a-re inculpatory facts which are incompatible with the innocence of the accused and are facts incapable of explanation on any other reasonable hypothesis other than guilt. Counsel contended that the learned trial judge disregarded the appellant's testimony of the nature of the arrest without any other evidence especially without the testimony of the arresting officer. That he never considered the appellant-s alibi as submitted before reaching a finding that the appellant was 15 20

the last person to be seen with the deceased alive. He cited Amisl Dhatemwa Allas Waibi v. Uganda CACA NO.23 of L997 for the proposition that it is very vital before drawing the inference of the accused's guilt from circumstantia,l evidence that there is no other co-existing circumstances which would weaken or destroy the inference. 25

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5 The Alibi was not discredited at all and the fact that the arresting officer did not testify to the circumstalces of the arrest of the accused created a weakness in the circumstaltial evidence. That had the appellant killed the deceased, he would have proceeded to Kenya as they had agreed with the deceased to travel. That he would not have lingered in Uganda for over two days before his arrest. That all this points to the innocence of the appellant and the circumstantia-l evidence did not prove beyond reasonable doubt prove that he accused was the

one who actually caused the death of the deceased.

On ground 3, it was submitted for the appellant that there were no aggravating circumstances as laid out in paragr ap}l 20 of the Constitutional (Sentencing

Guidelines for Courts of Judicature) (Practice) Directions 2013. That there was no premeditation that was proved, that the murder was gang related, the appellant is a first time offender, he was of advanced age of 53 years, has young children to take care of, has been in custody for 1O years and he was remorseful. He prayed that the sentence be reduced from 40 years to 10 years inclusive of the 1O years that the appellalt has already spent under imprisonment. 15 20

In reply to the above submissions, it was submitted for the respondent that whereas there was no direct evidence proving the participation of the appellant, the prosecution relied on corroborated circumstaltial evidence of PW3, PW4 and PWS which destroyed the appellant's alibi and placed him at the scene of crime. That PW3 stated that the appellant came to the deceased's home, he greeted him he later left and returned at around 6:0Opm. That he stayed there while listening

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5 to radio until about S:OOpm. That the defence challenged his testimony raising contradictions between his testimony and the statement he recorded at police.

Counsel submitted that the alleged discrepancy was explained by PW3 when he stated that he told the police that he saw the appellant at his mother's place in the morning and evening and he stayed in the house. That he did not tel1 the police that he had stayed in the house that night. Counsel submitted and invited court to treat the discrepancy as minor arrd did not point to deliberate untruthfulness since PW3 was in a state of grief at the time of recording the statement. He referred court to Alfred Tajar vs Uganda (19691 EACA Cr. Appeal No. 167 of 1969

- In addition, counsel submitted that PW4 Wakweika Isaac saw the appellant and the deceased at 8:OOpm while the appellant was listening to radio ald the deceased preparing tea. That PWS Makabuli James son to the deceased stated that he saw the appellant enter the deceased's house after the deceased had requested him to look after her cows as she was going for prayers. That PWS later left and came back at around 7:30 pm and saw the appellant listening to radio. That the evidence of PW3, PW4 and PWS overwhelmingly placed the appellant at the scene of crime and proved his participation. That the learned trial judge properly evaluated the defence of a-libi against the evidence of the prosecution and found the defence version to be a 1ie and an afterthought. She cited Jamada Nzabaikukize v Uganda SCCA No. 1 of 2015 wherein the 15 20 25 - Supreme Court cited Bogere Moses v Uganda SCCA No.1 of 1997 on what

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5 amounts to putting the accused person at the scene of crime? That the expression must mean proof to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieved, the court must not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the evaluation of the evidence as a whole. 10

On ground 2, counsel retaliated her eariier submissions on ground one and further contended that circumstantial evidence in law can form the basis for conviction. That the learned trial judge relied on the evidence of PW3, PW4, and PWS who last saw the deceased alive in company of the appellant ald warned himself as well as the assessors on the danger of convicting on circumstantia,l evidence. That the evidence of PW3, PW4 and PW5 was corroborated by that of

PW6. That the inculpatory facts are incompatible with the innocence of the appellalt and incapable of explanation upon any other reasonable hypothesis than that of guilt.

On ground 3, counsel submitted that the appellant was convicted of murder which calls for a death penalty. However, the learned trial judge considered the aggravating and mitigating factors and sentenced him to 40 years after deducting the 3 years he had spent on remand. 20

He cited Kiwalabye Bernard v Uganda SCCA NO. 143 of 2OO1 and Kyalimpa Edward vs Uganda SCCA No. 1O of 1995 for the proposition that an appropriate sentence is a matter of discrction for the sentencing judge. Each case presents 9lPage - 5 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 in the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence by the trial judge was manifestly so excessive as to amount to injustice. - 10 We have considered the submissions of counsel and the record. As a first appellate Court, we are required to re-appraise the evidence adduced and make our own inferences. See Rule 3O(1f of the Rules of this Court and Kifamunte Henry V Uganda, Supreme Court Criminal Appeal No.1O of 1997.

On ground one, the learned trial judge is faulted for dismissing the appellant's defence of a-libi without any further evidence from the prosecution. That the prosecution evidence did not place the appellant at the scene of crime as they failed to discredit his alibi. 15

20 25 It is trite that where an accused raises al a.libi, the prosecution is under duty to place the accused squarely 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 ofthe prosecution evidence 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

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5 versions judicially and give reason why one and not 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 dnd Ano" V

## UgandaCR. App. No. 7 of 7997

PW3 Mafukimalayi Partric a son to the deceased testified that on 6lll /\L morning, the appellant went and sat at the deceased's home. That since he was staying nearby he was able to see the deceased's home. He stated; "The deceased said she was going for prayers but wanted to talk to the appellant about the treatment of people using 1ocal herbs." That the appellant used to treat people together with the deceased and had worked together for 3 months and they could 10

go to Kenya and treat people. 15

> He further testified that as the deceased left for church, she asked the appellant to bring along a "Kannl long tunic which they were to take to Kenya. That at 5:00pm the deceased returned from church and the appellant returned at 6:OOpm.

- He further stated in testimony that; "the deceased asked whether the appeilant had brought the kanzu but appellant promised to produce it shortly. I went to my house and the accused 1eft. But at about 7:O0pm the appellant returned with his bag. My mother took appellant's bag in the house." That the appellant came out with the radio and started listening as the deceased prepared tea and super. 20 - That the appellant used to stay with his mother from September 201 1 to November 201 1. 25

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- 5 PW4 Wakweika Isaac testified that at about 9:00am, the deceased came to his home and told him that she walted to go to Kenya but she had asked a person to go and sew a Kanzu but had not returned. That she was going to say farewell to church. That shortly the appellant appeared as he was talking to the deceased who told them that the Kalzu was being made by a tailor. That PW4 left for the - burial and when he returned at 8:OOpm he found the appellant listening to a radio while the deceased was making tea. He further testified that he passes the deceased's home before going to his and that his home is only 20 meters away. That the appellant and the deceased used to stay together in the same house and that he believed that they were planning for a journey. 10 - PWS Makabuli James Johnstone a son to the deceased testified that on 6l1l llI in the morning at about 9:00am the deceased came to his home which is 5O meters away from hers to ask him to look after her cows as she was heading for prayers. That as they were ta,lking, the appellant who also grew up in the same area also came and entered his mother's house. That later in the evening, after he had chalged the cows and given them water, he left for the trading centre to charge his phone and when he returned at around 7:30pm he checked on her mother and he saw the appellant listening to radio and her mother told him that she had taken his share of milk from the cow to his home. That his mother told 15 20

him that she had a journey to make with the appellant to Kenya. He further

testified that two months before her death, the appeilant had started sleeping at

his mother's house which fact he had told the LCs. That when they found out

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5 that his mother had died, the appellant had disappeared and that he was later arrested trying to run to Kenya.

PW6 Clement Wamalwa the chairman LCI of Bunanyama village testified that he was told by PW3 and PW4 that it's the appellant who must have killed the deceased because they were together planning to go to Kenya and that the appellant was missing yet they had been together.

While giving unsworn evidence, the appellant testified that he had left Bunanyama since the groups of persons he had reported as having guns had threatened to burn his family. That since 2010 he was leaving in Lwakhakha were he used to buy goods and send to Mbale. That he was in Lwakhakha when he was arrested by a group who shouted that he was a thief and they took him

to police. That a police officer later came and said that he had killed someone. That he had not been in Bunanyama viilage since 201O and did not stay with the deceased and she was not his business partner. 15

In support of the appellant's alibi that he was never in Bunanyama village his sister DW2, Salifu Margret testilied that the appellant was staying with her in November 2011 along Kumi road. That after threats to the appellant's family when he reported those who had guns, the appellant sold his property in Bunanyama and went to Mba-le in February 2010 to do business. That on 811ll11 when he went to buy goods he did not return and she later heard that he had been arrested from Lwakha-kha. That from February 2009 up to his time 20 25

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5 of arrest, he was staying with him in the shop premises. That he used to cross to Kenya because goods there were cheaper.

In determining this matter the learned trial judge stated as follows;

"The acqtsed in his euidence stated that ulhile in Luakhakha trading centre on shopping trip, he was all of the sudden arrested bg mob that called him a thief

- and frog matched him to police. At police, he utas infonned he utas the one that killed the deceased. This defence is also incredible. Hout a mob utould suddenlg arrest a person colling him a thief and slrcrtlg the police refer to him as the killer stretches mg imagination too far. When this defence is assessed ttith the prosecution euidence regarding the accused's being seen at the deceased's house, 10 - spending there a night, dkappearing the follouing dag and running auraA into a riuer before his arrest, I find tlnt the accused and his sister's uersion of euents is unbelieuable. The prosecution euidence regarding his presence in tle uillage that dag and night is credible. Tlrc fact that he utqs the last person to be seen uith the deceased aliue constitutes incalpatory facts u-thich are incompattble with the innocence of the accused. Ttrcse facts are incapable of explanation on ang other 15 20 - reasonable hgpothesis other than guilt.

Afi.er careful consideration of the euidence for both sides, I am in agreement u-tith the lady and gentleman assessors that the prosecution ho"s not onlg placed the accused at the scene of cime but also proued through circumstantial euidence that he is the killer.

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5 The defence uersion can onlg be a lie and an ajterthought. The prosecution has proued the co"se against the acqtsed begond reasonable doubt. I find him guiltg of murder and conuict him accordinglg. "

From the analysis of the evidence on record, PW3, Mafukimalayi Partric, PW4 Wakweika isaac and PW5 Makabali James saw the appellant at about 8:00pm with the deceased as they lived in the same homestead. They saw the appellant listening to radio. PW3 and PW5 sons to the deceased testified that their mother told them that she had a journey to Kenya with the appellarrt. These witnesses saw the appellant at the deceased-s home. PW4 used to pass by the deceased's home as he goes to his. PWS testified that when he checked on his mother he was with the appellant in the home. The witnesses further stated that the appellant

used to stay with the deceased for about two months before her death. 15

The evidence was not controverted by the defence during cross examination. The appellant's and DW2 Salifu's evidence that the appellant had left Bunayama village in February 2O 10 and at the time of the murder he was staying with DW2 is tainted with lies. The evidence of PW3, PW4 and PWS who last saw the appellant with the deceased the night before her death is more believable than that of the appellant and DW2. They were al1 consistent that they saw the appellalt in the deceased-s home listening to the radio and by the time they went to sleep he was still in that home.

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5 The evidence that the appellant had left the deceased's village in 2010, never stayed with the deceased and he was not her business partner was an afterthought by the defence.

Putting an accused person at the scene of crime means proving to the required standard that the accused was at the scene of crime at the material time. See:

## Abdu Ngobl os Uganda, SCCA .lYo. I Oof 7997 and Liulngstone Sikuku us Ugand.a SCCA lVo.33 of 2OO3 10

The evidence of PW3 Mafukimalayi Partric, PW4 Wakweika Isaac and PWS Makabuli James clearly shows that the appellant was the last person seen with the deceased that night before she was found dead the next morning. This evidence squarely placed the appellant at the scene of crime and discredited the appellant's alibi.

We agree with the trial judge's findings that the prosecution's evidence placed the appellant squarely at the scene of crime and that the appellant's alibi was tainted with fa,lsehoods and untruthfulness and therefore could not stand.

Ground one fails. 20

On ground 2, the learned trial Judge is faulted for having failed to assess, interpret and apply the law on circumstantial evidence. We note that the evidence of the prosecution was based on direct and circumsta,ntial evidence as some prosecution witnesses testihed to have talked and seen the appellant with the deceased and also that no one saw the appellant committing the offence

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- 5 respectively. Be that as it may, the law governing circumstartial evidence is well settled. In order to justify an inference of guilt, based on circumstantia-l evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explalation upon any other reasonable hypothesis other than that of his guilt. See Andrea Obongo and. Others rrersus R, (7962) E. A. 542 - Ssekandi J. A (as he then was) in his lead judgment in Amisi Dhatemud. Atlas Walbl as Uganda; Supreme Court Critninal Appeal No. 23 oJ 7977, had this to say on circumstantial evidence; 10

"It is true to say that circumstantial euidence is uery ojl,en the best euidence. It is euidence of surrounding circumstances uhich, bg undersigned coincidence is capable of prouing facts in isszre accuratelg; it is no derogation of euidence to saA that it is circumstantial, See: R urs Tailor, Weuer and Donouan, 21 Criminal Appeal R 2O. Houteuer, it is trite lana that circumstantial euidence must alu.tays be narroutlg examined, onlg because euidence of this kind mog be fabricated to cast suspicion on another. It is, therefore necessary before drauting the inference of the accused guilt from circamstantial euidence to be sure that there are no other co-existing circumstances uthich utould uteaken or destrog the inference. See: Teper us P. (1952) A. C 48O at p 489 See also: Simon Musoke us R (1958) E. A 715, cited utith approual in Yowana Seruuadda us Uganda Cr. AppI. No. 11 of 1977 (U. C. A).

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The burden of proof in ciminal coses is alulogs upon the prosecution and a case based on o chain of circumstantial euidence is onlg as strong as its uteakest link."

The Supremc Court reaffirmed the above position of the 1aw in Janet Mureeba qnd 2 others-as Uganda; Suprerne Court Crirrninal Appeal JVo. I3 of 2OO3 10 in the following words:

"There are mang decided cases u.thich set out tests to be applied in relging on circumstantial euidence. Generallg, in a ciminal case, for circumstantiol euidence to sustain a conuiction, the circumstantial euidence must point irresistiblg to the guilt of the accused. In R -us-Kipkering Arap Koske and Another [1949] 16 EACA 135 it utas stated that in order to justifu, on circumstantial euidence, the inference of guilt, the inculpatory focts must be incompatible utith the innocence of the accused and incapable of explanation upon anA other reasonable hgpothesis than that of guilt. That statement of the latu utas approued bg the E. A Court of

Appeal in Simon Musoke us R 119581 EA 715."

ln Bogere Charles os Uganda; Suprerme Court Crlnlnal Appeal No. 70 oJ 7998, tl:,e Supreme Court referred to a passage in Taylor on Evidence 1lth Edition page 74 which states;

"The circumstances must be such as to produce moral certainty to the exclusion of euery reasonable doubt." - 5 The court is required to exercise caution when dea-ling with circumstantial evidence. li Teper as R (2) [7952] AC 48O t}:e court held that before drawing an inference of the accused's guilt from circumstantia-l evidence, the court has to be certain that there are no other co-eisting circumstances which would weaken or destroy that inference. - Prom the above analysis, it is evident that the prosecution-s case was purely based on circumstantial evidence since there was/were no eye witnesses. Be that as it may, the said evidence needed to be corroborated with independent evidence connecting the appellant to the commission of the murder which burden the prosecution discharged. 10 - The appellant's evidence that he was in Lwakhakha to buy goods and he was arrested by a mob on theft allegations and iater the police informed him that he was arrested for killing someone aligns with the evidence of the prosecution, this is because he was arrested on a/ll/71 one day after the murder since he disappeared when they found the deceased dead yet he was last seen with her a night before. 15 20

As earlier held in ground 1 the appellalt was placed at the scene of crime by the prosecution. Even though no witnesses saw the appellant kill the deceased, the evidence that the appellant was the last person seen with the deceased before she was found dead the next day points to no other inference than that it was the appellant who killed the deceased. The deceased told her children PW3 and PW5 that she had a journey with the appellant to Kenya the following day and

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- 5 the logical conclusion is that by the time PW3, PW4 and PWS went to sleep still saw the appellant at the deceased ald it's believable that he stayed with the deceased that night. In addition, PWS Makabuli James's evidence corroborated the evidence of PW3 Mafukimalayi Partric and PW4 Wakweika Isaac. - Ifind the inconsistency in PW3 -s evidence in court that he did not tell the police in his Police Statement (Exhibit DEX 1) that the appellant stayed and slept in the deceased's home that night a minor inconsistency which does not go to the root of the prosecution-s case since PW4 and PW5-s circumstantial evidence that the appellant was the person last seen with the deceased in the night overwhelmingly points to his g.rilt. Even though we disregard PW3's evidence, the remaining circumstantial evidence is so strong against the appellaat. The law is now well settled that inconsistencies or contradictions in the prosecution evidence which are major and go to the root of the case must be resolved in favour ofthe accused. However, where the inconsistencies or contradictions are minor they should be ignored if they do not affect the main substalce of the prosecution's case, save where there is a perception that they were deliberate untruths. See AlJred TaJar Vs, Uganda E,aco Crimlnal Appea.l No. 167 OJ 7969 and Saraplo Tinkalmallrute Vs. Uganda Suprerne. Court Crlmlnal Appeal No. 27 OJ' 1989. 10 15 20

PW3, Mafukimalayi Partric testified and stated that; "I suspect the accused because he was the only one staying in that house and he had disappeared. I never saw accused again until today he was arrested by other people." 25

5 During cross examination PW5 Wakweika Isaac testified that they suspected the appellant to be the killer because they found the dead body in the house where the appellant stayed for a night after he was absent.

The evidence of the appellant having gone missing was corroborated by the testimony of PW6 Clement Wamalwa the LCl chairperson and PW7 Wafula

- Rashid who saw the appellant on 8/ 11 / 1 1 and testified that he pulled the appellant from the river as he was trapped while trying to cross to Kenya when being pursued by the mob. He further stated that the appellant failed to cross because the river was deep and the water had arisen and he seemed not to know how to swim. That the appellant was a stranger in the area and he was running away. That he was identilied by a one Boaz who toid him that the appellant had 10 15 - killed a person and they took him to police. PW8 D/CPI Ouma Isaac Milton a-lso stated that the appellant had been arrested trying to escape to Kenya.

The Supreme Court in the case of Remeglous Kiwanuka os Uganda Crimlnrrl Appeal No. 47 oJ 7995, observed that the disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearance from the area is incompatible with innocence of such a person. 20

On the basis of that authority, we find that the appellant's disappearance from the area of crime provided more corroboration to the other evidence of the prosecution on record on his participation in the offence. The appellant's 25

5 evidence and that of DW2 Safilu that he had been staying in Lwakhakha was untruthful and unbelievable. He only went there after killing the deceased and he was trying to run away.

It is also trite 1aw that an accused person is convicted on the strength of the prosecution case, and not on the weakness of the defence as was held in fsrae I

## Epuku S/O Achouse us . R. [1934] EACA 766 and more recently by the Court of Appeal of Uganda in Akol Patr'lck & Others as. Uganda; Court of Appeal Criminal Appeal No. 6O oJ 2OO2. 10

In light of the above evidence, we find that the learned trial judge properly assessed, interpreted and applied the circumstantial evidence and came to the right conclusion that the appellant killed the deceased. The circumstantial evidence was indeed so strong and points to no other inference than the guilt of the appellant. The inculpatory facts are incompatible with his innocence and the co- existing circumstances that the appellant was in Lwakhakha not Bunayama was untenable. We find no reason to fault him in deciding the way he did.

Ground 2 fails.

On ground 3, the learned trial judge is faulted for sentencing the appellant to a harsh and excessive sentence of40 years' imprisonment. That there were no circumstances aggravating the offence as stipulated in Paragraph 21 of the Constitutional Sentencing Guidelines.

- 5 An appellate Court will not interfere with a sentence imposed by a trial court which exercised its discretion during sentencing unless the exercise of the discretion was such that it resulted in the sentence imposed being malifestly excessive or so low as to amount to a miscarriage ofjustice or where a trial court ignored to consider an important matter or circumstance which ought to be - considered when passing the sentence or where the sentence imposed is wrong in principle. See: Klualabge Bernard Vs Ugandao Srpta. 10

In aggravation, the respondent submitted that the convict was a first time offender, maximum penalty is death, the starting point was 35 years in guideline 20, tl:.e injury on the deceased head was gross, there was premeditation, the brain matter poured out, the deceased's children missed her through the crime and asked for the death penalty. In mitigation, the defence submitted that the appellant was a first time offender, had been on remand for 3 years, he was aged 44 years, requires an opportunity to reform,

he was remorseful and had children

20 In sentencing the appellant, the learned trial judge statcd as follows;

"The conuict is a first offender utlto has been on remand for 3 gears. He is guilty of murdeing the grandmother of his tutfe. He still denies the charges. Ihis is a constitutional right. I haue been asked to sentence him to death. He is aged 44 gears. He has asked for lenience. He uas in a house uith an old tuoman u-tho

had trusted him to do business together. For reasons not clear, he killed her so brutallg tuith single hit that split her brains 25

23 lPage

5 The guidelines prouide for a starting point of 35 gears mouing doutn to 3O or upu-tards to deoth. I would be belieued to impose a death sentence out this u.tould not teqch him much since he utould be gone.

Staging in prison to keep thinking about that death is more retributiue that death uill erase his memorg.

10 He has been on remandfor 3 gears uhich I deduct from the sentence. I therefore sentence the conuict to 4O gears imprisonment."

In our view, it is clear that the learned trial judge took into account both the aggravating and mitigating factors and the period the appeilant had spent on remand before sentencing him to 40 years' imprisonment. In line with Guideline 2O, there existed circumstances which aggravated the punishment and at the same time there existed mitigating factors. In that regard we would not fault the learned trial judge in deciding the way he did. We are alive to the consistency and uniformity principle.

In Mbunga God. Jreg os Uganda Crininal Appeal No.4 oJ 2O77 and Ssekitolelco Ed.ward. as Uganda Criminal Appeal No. 76 oJ 2O72 court held that it is a requirement to maintain consistency in sentencing by taking into consideration the sentences previously imposed by the courts in previous similar cases involving similar facts and circumstalces. 20

5 In Kannga Abdullah & 4 others us Uganda SC CrApp.24 oJ 2O75 the Supreme Court emphasised the need to embrace basic sentencing principles of uniformity, consistency and parity as guidelines while sentencing.

We have also looked at the range of sentences imposed in similar offences after considering both aggravating and mitigation factors.

In Adupa Dickens Vs Uganda, C. A. C. A. No. 267 of 2OL7, 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. 10

## In Semanda Chrlstopher & another versus Uganda, CACA NO.77 OF 2O1O,

the deceased was assaulted by the appellant and he later died in hospital. They were sentenced to 35 years imprisonment for murder and on appeal, this Court upheld the sentence. 15

Owing to the above authorities, we are a view that the sentence of 40 years' imprisonment was harsh and excessive in the circumstances and we therefore set it aside.

Section 11 of the Judicature Act Cap 13 places this Court in the same position as the Court which had original jurisdiction to hear the matter. The said section states thus;

"For the purpose of hearing and determining an appeal, the Court of Appeal sholl haue all the pouters, authoitg and juisdiction uested under ang

*written law in the Court from the exercise of the original jurisdiction of which the appeal originally emanated.*"

We exercise the above powers to sentence the appellant afresh.

With both aggravating and mitigating factors in mind, the 3 years the appellant had spent on remand, the principle of uniformity and consistency and the 10 years the appellant has spent in lawful custody we sentence the appellant to 30

years' imprisonment to run from the date of conviction on 19th September, 2014.

$\ldots \text{ this } 3^{\circ}$ . day of $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\$ Delivered at Jinja. $\omega$

Elizabeth Musoke

**JUSTICE OF APPEAL**

**Cheborion Barishaki**

**JUSTICE OF APPEAL**

Ohura

**JUSTICE OF APPEAL**

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$\mathsf{S}$