Marani & Another v Uganda (Criminal Appeal 40 of 2014) [2024] UGSC 21 (1 March 2024)

Full Case Text

### THE REPUBLIC OF UGANDA,

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

## [CORAM: OWINY - DOLLO CJ, MWONDHA, TIBATEMWA-EKIRIKUBINZA, CHIBITA & MADRAMA, JJ. S. C.

### CRIMINAL APPEAL NO. 40 OF 2014

### **BETWEEN**

## 1. MARANI ALI} 2. MARANI ADAM alias WATENYA? ....................................

### AND

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

(Appeal against the judgment and orders of the Court of Appeal in *Criminal Appeal No.* 829 of 2014 in a judgment delivered on 7th July, *2017 by Musoke, Cheborion and Mugamba, JJA.)*

### 20

$\mathsf{S}$

### **Representation**

At the hearing of the appeal, Counsel Seth Rukundo appeared for the $2nd$ Appellant and held brief for counsel Susan Sylvia Wakabala who represented the 1st Appellant.

*On the other hand, Counsel Rose Tumuheise, Assistant Director of* $25$ *Public Prosecutions represented the Respondent.*

Both Counsel relied on their written submissions filed in this Court.

## **JUDGMENT OF COURT**

## **Background Facts**

The facts as accepted by the lower courts are that, on the afternoon of 11th July 2011, at Buyasere village, Bumooni sub-county, Manafwa District, Kisaka Mary (deceased) was killed and her husband Kuremu Calisti was severely injured.

$10$

$\mathsf{S}$

The $1^{st}$ and $2^{nd}$ Appellants were step sons of the deceased who believed that their bad luck of not settling in marriage and lack of money stemmed from the deceased's witchcraft.

According to the Prosecution witnesses, the events that led to killing 15 of the deceased were that Kuremu, husband to the deceased, asked his daughter in law Zainabu Namakanda (PW4) what one would do if a drinking straw got blocked. PW4 advised that it should be broken. Kuremu then left and went to his home in a frenzy mood. While there,

Kuremu declined to eat food. Shortly, his brother Wabutsamu arrived 20 and demanded for food. Before he could be served, he said he wanted to dig out a pot with fetishes that had been buried at a nearby grave yard.

$25$

Shortly thereafter, Marani Ali (1st Appellant) arrived in company of one Simivu with a hoe. The 1st Appellant said he was going to dig out the pot with charms buried near his brother-Charles' grave.

The 1st Appellant dug out the pot and Wabutsamu raised an alarm which attracted villagers. Wabutsamu and a mob started beating Kuremu accusing him of witch craft. Kisaka Mary (deceased) tried to escape from the home but was met by Marani Adam (the 2nd Appellant) who together with one Simiyu attacked her. The 2nd Appellant stabbed Kisaka Mary with a knife and the duo led her towards a nearby Police Post where she collapsed. She was rushed t o hospital but was declared dead upon arrival.

In the meantime, Kuremu – the deceased's husband - had called the

police which rescued him from further beatings. He had been taken $\mathsf{S}$ to the Police Post at Munamba for safety. Later, he was taken to hospital to treat his bleeding wounds. It was while there that he saw his wife being brought in lifeless.

Subsequently, the $1^{st}$ and $2^{nd}$ Appellants were arrested, charged, tried and convicted of murder of Kisaka Mary (the deceased) contrary $10$ to Sections 188 and 189 of the Penal Code Act and sentenced to 40 years' imprisonment each.

Both appellants appealed to the Court of Appeal against conviction and sentence whereupon the Court of Appeal dismissed their appeal and upheld the conviction for murder. However, the court allowed the $15$ appeal against the sentence of 40 years' imprisonment and reduced it to 27 years' imprisonment.

The Appellants were still aggrieved by the Court of Appeal decision and separately lodged appeals to this Court on the following grounds:

- For the 1st Appellant the grounds were: 20 - $1.$ That the learned Justices of Appeal erred in law when they did not consider the defence of intoxication as being available to the 1st Appellant.

#### $2.$ The Justices of Appeal erred in law when they sentenced $25$ the appellant to an illegal sentence.

And for the $2^{nd}$ Appellant, the grounds of appeal were that:

- 1. The learned Justices of Court of Appeal erred in law when they failed to re-appraise the appellant's child age as at the date the offence was committed occasioning a miscarriage of justice. - The Justices of Court of Appeal erred in law when they $2.$ failed to re-appraise prosecution evidence alongside the appellant's defence evidence thereby wrongfully

$\overline{3}$

maintained conviction order of murder upon the appellant.

$10$

$\overline{5}$

The learned Justices of Court of Appeal erred in law when $3.$ they imposed upon the appellant an illegal, manifestly excessive and harsh 27 years' custodial imprisonment without deducting the remand period. (sic)

For purposes of clarity, we have resolved the appeal of each Appellant separately. 15

## The appeal by Marani Ali- $1^{st}$ Appellant

## Ground 1

## $1st$ Appellant's submissions

On ground 1 of the appeal, the 1st Appellant's counsel relied on the evidence of PW4 one Zainabu Namakanda who heard the 1st $20$ Appellant state that he did not want to kill the deceased. That he just wanted them to beat her. Furthermore, that PW4 had also testified that, the 1st Appellant had taken alcohol. Counsel also submitted that the evidence of PW3 and PW4 as eve witnesses was contradictory regarding the role the 1st Appellant played in commission of the $25$ offence. That PW4 testified that he only gave instructions and did not physically assault the deceased. The 1st Appellant's counsel relied on Section 12 (4) of the Penal Code Act and raised the defence of intoxication. Counsel submitted that it was probable that the 1st Appellant did not intend to kill the deceased. Counsel therefore 30 argued that the Prosecution did not prove beyond reasonable doubt that the 1st Appellant intended to kill the deceased at the material time. That he was involved in drinking alcohol and the confession that he did not intend to kill the deceased from the scene of the crime operates to reduce a charge of murder to manslaughter. She prayed 35 that the court quashes the conviction of murder, sets aside the

sentence against the 1st Appellant and substitutes it with $\mathsf{S}$ manslaughter.

## **Respondent's reply**

In reply, the Respondent's counsel argued that Section 12 (1) of the Penal Code Act provides that intoxication shall not constitute a defence to any criminal charge except in the circumstances provided $10$ in the said Section. That the matter did not fall within the exceptions provided in the cited section of the Penal Code Act. Counsel further submitted that, there was no evidence on record to show that the 1st Appellant was intoxicated at the time he and the 2nd Appellant murdered the deceased. Counsel argued that the evidence of PW4 $15$ relied on by the Appellant's counsel was not sufficient to arrive at the conclusion that the 1st Appellant was intoxicated. Counsel submitted that PW4 did not state the type of alcohol the 1st Appellant took or the quantity. Thus, the Respondent's counsel submitted that the Court of Appeal was right in finding that the defence of 20 intoxication was not available to the $1^{st}$ Appellant.

## Ground 2

## 1st Appellant's submissions

Under this ground, counsel submitted that although the Justices of Appeal reduced the 40 years' imprisonment sentence imposed by the $25$ Trial Judge, it could not be ascertained whether the remand period was deducted from the new sentence. Counsel therefore argued that the sentence was illegal and violated Article 23 (8) of the **Constitution** which requires the pre-trial period to be deducted from the sentence that the court intends to impose. In support of the 30 foregoing submission, counsel relied on the authority of **Rwabugande** vs Uganda; SCCA 25/2014. Counsel also relied on the case of Abdullah Kamya and 4 others vs Uganda; SCCA No 24 of 2015, in which the Supreme Court reduced a sentence of 40 years' imprisonment on a conviction of murder. 35

$\mathsf{S}$

The 1st Appellant's counsel proposed that considering all the $\mathsf{S}$ mitigating factors such as the Appellant being a first-time offender and his remorsefulness, a period of 17 years' imprisonment would serve the ends of justice.

## **Respondent's reply**

In reply, the Respondent's counsel submitted that the appellant was 10 convicted and sentenced for murder which carries a maximum sentence of death. That the learned Justices of Appeal examined the mitigating factors including the three years the appellant had spent on remand and reduced the sentence from 40 years to 27 years' imprisonment. In the premises, the sentence was not illegal. 15 Regarding the ground on the sentence being harsh and excessive. counsel submitted that Section 5 (3) of the Judicature Act Cap 13 prohibits the Supreme Court from entertaining appeals against the severity of sentence. Counsel prayed that ground 2 ought to fail.

#### Court's consideration of the $1st$ Appellant's appeal 20

## Ground 1

We have carefully considered ground 1 of the appeal of the 1st Appellant which is to the effect that the learned justices of the Court of Appeal erred in law when they did not consider the defence of intoxication as being available to the 1st Appellant.

We note that this issue was never raised in the High Court or the Court of Appeal. A perusal of the Record of Proceedings shows that in the summing up notes to the assessors, the learned Trial Judge stated that the defence of the Appellants was the alibi that when the deceased was being assaulted, they were at Munamba Police Post watching over their father who had been detained. Furthermore, there is no evidence on record that there were submissions on the defence of intoxication. What appears on the Record as a defence is the alibi.

$\mathbf{6}$

We find that the defence of intoxication is being raised for the first $\overline{5}$ time on a second appeal and Rule 98 of the Rules of this Court bars a party from arguing a ground of appeal not canvassed in the lower court.

# In the premises, ground 1 is accordingly struck out.

#### Ground 2 10

$25$

In re-sentencing the 1st Appellant, the Court of Appeal stated as follows:

"Taking into account that the appellants were without previous record of conviction, young, remorseful and had been on remand for 3 years, we set aside the sentence of 40 years' imprisonment and substitute it with a sentence of 27 years' imprisonment from 19th of September 2014, the date of conviction $\ldots$ "

In arriving at an appropriate sentence, a court is obliged to balance the mitigating factors against the aggravating factors and thereafter, deduct the remand period.

We note that in the Court of Appeal's sentencing order above, the aggravating and mitigating factors as well as the remand period were handled together. In Rwabugande Moses vs. Uganda (supra), this Court was emphatic that the remand period cannot be lumped together with mitigating factors developed under common law such as age of the convict; fact that the convict is a first time offender; remorsefulness of the convict etc. The Court stated further that a sentence couched in general terms that "court has taken into account the time the accused has spent on remand", is ambiguous.

Court held that the taking into account of the period spent on 30 remand by a court is necessarily arithmetical and this necessarily means reducing or subtracting that period from the final **sentence.** We note that the sentence of the Court of Appeal in the matter before us was ambiguous and furthermore it did not follow what was stated in **Rwabugande** as the correct procedure–first 35

$\overline{7}$

arriving at a final sentence and then deducting the 3 years the $\mathsf{S}$ Appellant spent on remand.

Thus, since the Court of Appeal did not follow the correct procedure during the re-sentencing of the Appellants, this Court hereby sets aside the Court of Appeal's sentencing order and evokes **Section 11** of the **Judicature Act** which provides that:

For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.

Therefore, we re-sentence the $1^{st}$ Appellant as follows:

$10$

$20$

$25$

We note that in the case before us, human life was lost and the maximum penalty for the offence of murder is death. This would be an aggravating factor. However, we take into consideration the mitigating factors presented on behalf of the Appellant. Counsel pleaded in mitigation that the $1^{st}$ Appellant was a first time offender with no previous record of wrong and had family responsibilities.

It is a trite principle of sentencing that a sentencing court must balance the aggravating and the mitigating factors. In the circumstances of this case, we consider a sentence of 30 years as appropriate.

However, we deduct the 3 years the $1^{st}$ Appellant spent on remand and sentence him to 27 years' imprisonment which will run from the time of conviction.

Arising from the above, ground 2 succeeds. 30

We now move on to address the $2^{nd}$ Appellant's appeal. The appeal by Marani Adam-2nd Appellant

#### Ground 1 $\mathsf{S}$

## 2nd Appellant's submissions

The essence of counsel's submissions on this ground were that the Court of Appeal failed in their duty to re-appraise the evidence regarding the 2nd appellant's age at the time of commission of the offence. That had they done so, the Court of Appeal would have realised that the 2nd Appellant was a child aged 17 years at the time he committed the offence.

Counsel explained that during the trial court proceedings held on $8/7/2014$ , the 2nd appellant testified that he was 21 years old; which meant that on $11/7/2011$ when he committed the offence, the 2nd $15$ Appellant was 17 years, 7 months and 11 days.

In support of the above argument, counsel referred to Police Form No.24 dated 19th of January 2012, which is the medical examination of the $2^{nd}$ Appellant. The Police Form revealed that the $2^{nd}$ Appellant was 19 years old at the time of commission of the offence.

Furthermore, counsel challenged Police Form No.24 as being improperly admitted because it was tendered by a witness who professed to be medical officer but the Form lacked a professional stamp and qualifications.

Counsel also contended that the Trial Judge relied on speculation by 25 commenting on the age of the 2nd Appellant as being someone who looked much older than 21 years without support of any evidence on Record. He contended that the Trial Judge's remarks showed suspicion as to the of the $2^{nd}$ Appellant's age and therefore the Judge ought to have inquired into the matter but he did not. 30

## **Respondent's reply**

In reply, the Respondent's counsel submitted that the evidence regarding the $2^{nd}$ Appellant's age had been admitted as an agreed fact under Section 66 (3) of the Trial on Indictments Act and was therefore $\mathsf{S}$ no longer a controversial issue.

# Ground 2

The learned Justices of the Court of Appeal erred in law when they failed to reappraise prosecution evidence alongside the appellant's defence evidence and thereby wrongly maintained $10$ conviction order of murder upon the appellant.

Counsel for the 2nd Appellant submitted that there were contradictions between the testimony of PW3 and PW4. Regarding the testimony of PW4-Zainabu Namakanda, the witness testified that the deceased was beaten by a hostile crowd for about 2 hours. On

- 15 the other hand, the testimony of PW3-Nabifo Diana was that she saw the 2nd Appellant stab the deceased and the 1st Appellant hit her on the head, on the road going to the Police Post. That these events occurred in a time frame of 30 minutes. PW3 also mentioned several - people's names who were present at the scene but also stated that $20$ she decided to retreat to a neighbour's place. On this premise, counsel submitted that PW3 could not have seen the 2nd Appellant stabbing the deceased with a knife since she had retreated to a neighbour's place. Counsel also submitted that the contradicting

time frames stated by PW 3 and PW 4, within which the offence was $25$ committed, pointed to deliberate falsehoods in the Prosecution's case which the Court of Appeal ignored.

The 2nd Appellant's counsel further submitted that the alibi of the Appellants was ignored by the Court of Appeal. That the account of the 2nd Appellant should have been accepted as credible and corroboration of Kuremu's testimony that at the time of assault, the Appellants were at Manamba Police Post.

Furthermore, counsel submitted that the Court of Appeal erroneously applied the doctrine of common intention and held that there was no need to prove participation for a finding of guilty under 35 the said doctrine. Counsel also argued that the 2nd Appellant

dissociated himself from the mob justice by rendering support to his $\mathsf{S}$ father by going with him to the Police Station.

That the conduct of the appellant leaving the area after the death of the deceased was not evidence that he participated in killing the deceased.

#### **Respondent's reply** 10

In reply, the Respondent's counsel supported the findings of the Court of Appeal and maintained that the learned Justices of the Appeal rightly carried out their duty as a first appellate court.

### Ground 3

### 2nd Appellant's submissions $15$

For this ground of appeal, the 2nd Appellant's counsel submitted that the sentence of 27 years' imprisonment imposed by the Court of Appeal was illegal, manifestly excessive and was imposed without deducting the remand period. This ground is similar to the 1st Appellant's ground 2.

In order to avoid repetition, we will not reproduce the Respondent's reply. We have already reproduced the Respondent's reply while addressing the 1st Appellant's appeal.

# Court's consideration of the $2^{nd}$ Appellant's appeal

#### Ground 1 $\overline{25}$

The issue of the 2nd Appellant's age is a finding of fact which was admitted as evidence. The Trial Court proceedings on Record show that the $2^{nd}$ Appellant was examined by a medical doctor who established that on $19/1/2012$ , he was 19 years of age. This fact was agreed by both the Prosecution and the defence sides. The excerpt of the Record regarding the $2^{nd}$ Appellant's age is as follows:

$20$

"Court: Any agreed matters?"

*Prosecutor: We have also agreed on PF.24 representing examination of* $\mathsf{S}$ the accused persons by Dr. Rubanza B.

A.2 [ $2^{nd}$ Appellant- Marani Adam] was examined on 19.1.2012. He was 19 years. He was normal mentally with no injuries on his body.

We apply to tender the two $PF.24$ as $P.2$ .

*Counsel for the Accused: I have discussed with the accused who do* $10$ not contest the death of the deceased but they only deny being *responsible. We agree to the facts stated.*

*Court: Agreed facts explained to accused ...*

$A.2$ : That is the position

*Court: ... the two PF.24 by Dr. Rubanza ... are admitted as agreed* 15 facts under Section 66 T. I. A ... the two PF.24 are admitted as P.2" (Court's emphasis)

From the above excerpt, we note that the $2^{nd}$ Appellant's age was an agreed fact and it is trite law that on a second appeal, the Court is

- precluded from questioning the findings of fact of the trial Court, $20$ provided that there was evidence to support those findings, though it may think it possible, or even probable, that it would not have itself come to the same conclusion. The second appellate court can only interfere where it considers that there was no evidence to support the - finding of fact, this being a question of law. [See: **Kifamunte Henry** 25 vs. Uganda Criminal Appeal No. 10 of 1997 (SC)]

We therefore find no merit in the $2nd$ Appellant's argument that the Trial Judge ought to have inquired into the matter of age because this was not a disputed issue. It was an agreed fact. Furthermore, **Section 66 (3)** of the **Trial on Indictments Act** provides that:

"Any fact or document admitted or agreed (whether the fact or document is mentioned in the summary of evidence or not in a memorandum under this section shall be deemed to have been duly proved ..."

We also note from the excerpt that the $2^{nd}$ Appellant was 19 years in $\mathsf{S}$ 2012 when he was medically examined. Therefore, in 2011 when the $2nd$ Appellant committed the offence, he was 18 years. He was not a child but an adult. Thus, counsel's argument that the 2nd Appellant was 17 years at the time the offence was committed does not suffice.

### We therefore hold that ground 1 fails. 10

### Ground 2

The Appellant faulted the learned Justices of Appeal for failing to reappraise the Prosecution evidence alongside the Appellant's defence evidence.

We have carefully considered the various testimonies on court record 15 to establish whether the Court of Appeal re-evaluated the Prosecution evidence in isolation of the Appellants' defence evidence.

It is trite law that, a court must consider evidence adduced as a whole. A court must not evaluate the case of the Prosecution in isolation and then consider whether or not the case for the defence 20 rebuts or casts doubt on it. (See: Odong Justine vs. Uganda; Supreme Court Criminal Appeal No.13 of 2000; Mwanga Moses vs. Uganda Supreme Court Criminal Appeal No.2 of 2018.)

We are however alive to our duty as a second appellate Court which is to examine whether the first appellate court correctly carried out 25 its role of re-evaluating the evidence as a whole and arrive at its own conclusion. As was held by this Court in Odong Justine vs. Uganda (supra), failure by the first appellate court to re-evaluate the evidence as a whole constitutes an error of law. In such instances of the first appellate court's failure to carry out its duty, the second appellate 30 court will then evoke its powers to rectify the error by re-evaluating the evidence.

In present appeal, the learned Justices of the Court of Appeal reevaluated the evidence of PW3 and PW4 on the record and made a

finding that the inconsistencies in the testimonies of PW3 and PW4. $\mathsf{S}$ were minor.

With regard to identification of the Appellants at the scene of the crime and their participation in assaulting the deceased, the Court of Appeal evaluated the prosecution evidence alongside the alibi presented by the Appellants that they were with the deceased's 10 husband at the Police Station of Munambwa. The Court of Appeal found that the circumstances were conducive for the proper identification of the Appellants at the scene of crime which destroyed the alibi. We note that this was a concurrent finding by both the Court of Appeal and the Trial Court. It is trite law that a second 15 appellate court is barred from questioning the concurrent findings of facts by two lower courts provided that there was evidence to support those findings. (See: Ongom John Bosco vs. Uganda; Supreme Court Criminal Appeal No.21 of 2007.)

In the premises, we find no basis to depart from the concurrent 20 findings of the two lower courts.

We also find that the learned Justices of the Court of Appeal evaluated the Prosecution evidence alongside the Appellants' evidence.

### Thus, we hold that ground 2 fails. $25$

### Ground 3

Ground 3 as presented in the Memorandum of appeal is premised on two limbs: the first one is that the sentence is illegal for being manifestly harsh and manifestly excessive. The second limb is that the sentence is illegal for the Court of Appeal's failure to deduct the period the $2^{nd}$ Appellant spent on remand.

We will address the issue of severity of sentence first.

On the issue of severity or harshness of the sentence, we hold that it $\mathsf{S}$ is now settled law that no appeal lies to this Court against severity of sentence. **Section 5 (3)** of the **Judicature Act** provides that:

In the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence.

Thus, this issue has no merit.

We now move on to the argument that the Court of Appeal did not deduct the remand period and thus imposed an illegal sentence.

In re-sentencing the $2^{nd}$ Appellant, the Court of Appea! stated as 15 follows:

In arriving at an appropriate sentence, a court is obliged to balance the mitigating factors against the aggravating factors and thereafter, deduct the remand period.

- We note that in the Court of Appeal's sentencing order above, the $25$ aggravating and mitigating factors as well as the remand period were handled together. In **Rwabugande Moses vs. Uganda (supra)**, this Court was emphatic that the remand period cannot be lumped together with mitigating factors developed under common law such - as age of the convict; fact that the convict is a first time offender; 30 remorsefulness of the convict etc. The Court stated further that a sentence couched in general terms that "court has taken into account the time the accused has spent on remand", is ambiguous. Court held that the taking into account of the period spent on - remand by a court is necessarily arithmetical and this necessarily 35

means reducing or subtracting that period from the final $\mathsf{S}$ **sentence.** We note that the sentence of the Court of Appeal in the matter before us was ambiguous and furthermore it did not follow what was stated in **Rwabugande** as the correct procedure–first arriving at a final sentence and then deducting the 3 years the

Appellant spent on remand. 10

> Since the Court of Appeal did not follow the correct procedure during the re-sentencing of the $2^{nd}$ Appellant, this Court hereby sets aside the Court of Appeal's sentencing order and evokes **Section 11** of the **Judicature Act (supra)** and re-sentence the $2nd$ Appellant as follows:

- We note that in the case before us, human life was lost and the 15 maximum penalty for the offence of murder is death. However, we take into consideration the mitigating factors presented on behalf of the $2^{nd}$ Appellant- the fact that he was of a youthful age at the time he committed the offence, was remorseful and had family - responsibilities. $20$

Having juxtaposed the mitigating factors with the aggravating factor that the offence involved loss of human life, we find a sentence of 30 years' imprisonment appropriate.

However, in line with Article 23 (8) of the Constitution, we deduct the 3 years the $1$ st Appellant spent on remand and sentence him to 27 $25$ *years' imprisonment which will run from the time of conviction.*

On this premise, ground 3 partly succeeds.

# **Conclusion**

Arising from the above analysis, we hold that save for success of the 30 grounds on sentencing, on the whole, both appeals fail and they are hereby dismissed.

#### $\mathsf{S}$ ORDERS OF COURT

For the reasons given above, we make the following orders:

# 1st Appellant: Marani Ali

1. The conviction of murder contrary to Sections 188 and 189 of the Penal Code Act is upheld.

2. The Appellant is to serve a sentence of 27 years' imprisonment to 10 run from the time of conviction.

# 2nd Appellant: Marani Adam alias Watenya

1. The conviction of murder contrary to Sections 188 and 189 of the Penal Code Act is upheld.

2. The Appellant is to serve 27 years' imprisonment to run from the 15 time of conviction.

1 II day of March 2024. Dated at Kampala this.......

20 HON. JUSTICE ALFONSE OWINY-DOLLO **CHIEF JUSTICE.**

UmenDerl

HON. JUSTICE FAITH MWONDHA, JUSTICE OF THE SUPREME COURT.

L'usalemine.

HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT.

$25$

HON. JUSTICE MIKE CHIBITA **JUSTICE OF THE SUPREME COURT.**

Ryister