Nabigwo aka Hajji Tanywa v Uganda (Criminal Appeal 82 of 2012) [2024] UGCA 139 (7 June 2024)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBALE

lCoram; ligonda-Ntende, Gashirabake & Kihika, JJIJ

### CRIMINAL APPEAL NO. OO82 OF 2OI2

(Arisingfrom Itigh Court criminal session case No.37 of 20ll at Palisa)

10 NABIGWO MUSA aka IIAJJI-IANYWA .. APPI]I-I,ANI'

#### AND

UGANDA.... ........ RESPONDENT

(Appeal against the Judgment of the High Court of Uganda [Musota S. JJ at Pallisa delivered on the 03'd of April 20 I 2)

### JUDGMENT OF THE COURT

#### Introduction

- l] This is an appeal against conviction and sentence. The appellant was indicted and convicted, on 3'd April 2012, by the High Court of Uganda (Musota, J) for the murder of one Tausi Tagairya contrary to sections 188 and 189 of the Penal Code Act. The particulars of the offence were that the Appellant on the 2l't day of September 2010 at Busikwe village in Budaka District murdered one Tausi Tagairya. He was convicted and sentenced to death. - 2l Dissatisfied with the decision of the trial Court the Appellant appealed on the following grounds; - l. 'l'he learned tial Judge erred in law and Jizct in his approach to the inconsistency affecting the credibility of the evidence of PIY 3. - 2. l'he learned triol ,ludge erred in law and .fact in his opprouch kt inconsistencies relaling lo l'W3 and Pl{{'s evidence.

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| 5 | | 3. I'he learned trial Judge erred in law and Jitct in his approach to lhe timing ofdealh, which had to be proved beyond reasonable doubt. | |----|----|-------------------------------------------------------------------------------------------------------------------------------------------------------------| | | | 4. I-he learned trial Judge erued in law and fact in his approach to the evidence oJ the seized panga. | | 10 | | 5. l'he learned trial Judge erred in low and fact by treating the identiJication evidence as reliable rather lhan considering the needfor corroboration. | | | | 6. I'he learned trial Judge erred in his approach to the accused's alibi evidence. | | | | 7. I'he learned ffial Judge erred in law by failing to correctly apply lhe lesl .for lhe discrelionary applicalion ofthe death penalty | | 15 | | 8. 1'he learned tial Judge erred in law by imposing a sentence lhot was manifestly harsh and excessive. | | | | 9. l'he learned trial Judge ened in law by inordinote delay in the case and death row syndrome. | | | 3] | 'fhe Respondcnt opposed the appeal. | | 20 | | Rcprcscntation | | | 4l | 'Ihc Appcllant was represented by Mr. Turyamusiima Geolrey on a private |

brieL Mr. Mbalile Muhammad was on State brief for the Appetlant but was withdrawn. 'fhc Respondent was represented by Mr. Ojok Alex Michael, Assistant DPP in the DPP's office.

## 2s Submissions by Counscl for thc Appellant

5l Counsel fbr thc Appctlant jointly made submissions on grounds I and 2. Counsel argued that there were inconsistencies in the evidence ol PW2 and PW3 which would raise legitimate doubt as to whether PW2 and PW3 obscrved the same person and the assailant of the deceased.

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- 5 6] On ground 3 it was counsel for the Appellant's contention that the evidence by PW2 was not sufficient to prove whether the Appellant was involved in the murder. This is because PW2 did not describe what transpired at the time of the murder of the deceased. - 7] Turning to ground 4, counsel for the Appellant faulted the trial Judge for failure to evaluate evidence relating to the murder weapon. Counsel argued that according to the prosecution witness evidence there seemed to be no time lag for the Appellant to run and hide the weapon of murder when the mob was chasing him. Furthermore, counsel argued that thcrc was no evidence of a blood trail followed towards the house where the weapon was hidden and that there was no evidence adduced as regards the status of the murder weapon when it was found. 10 15 - 8] As regards ground 5, it was argued lor the Appellant that the trial Judge did not pass the test of proper identification as set by case law. Counsel argued that according to the evidence of PW2, she was not familiar with the Appellant. Additionally, counsel argued that the evidence of PW3 was unreliable because viewing someone from 150m away is capable of having a mistaken identity. Counsel therefore argued that the learned Judge ought to have directed himself on the need for proper identification. - 9] On ground 6, Counsel submitted for the Appellant that the prosecution evidence did not dispute the Alibi of the Appetlant. Counsel argued that the prosecution evidence did not rule out the Appellant's Alibi beyond reasonable doubt. - l0] Turning to ground 7, the trial Court was faulted for not following the test of handing down a death sentence. Counsel cited several cases where the Court has held that the death sentence should be handed down only in exceptional 3lPage

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## 5 circumstanccs. Counsel cited AG v Kigula and 417 others [20091 UGSC 6, Mbunya Godfrey v Uganda, SCCA No. 4 of20ll, Kakubi v Uganda, Court of Appeal Criminal Appeal No. 126 of 2008.

- II I Counsel l'urther argued that therc is a nced for the sentencing Coutl to balancc, both the mitigation and aggravating lactors while sentencing. I le citcd Mutema Tegike Muzamiru v Uganda J 20191 UGCA 348. Counsel argued that the Court ought to have considered the age of the Appellant and the fact that hc was a first offender. Counsel cited Munezero v Uganda [20181 UGCA 99, Mbarushimana Vs. Uganda [20181 UGCA 90, Odongo v Uganda [20181 UGCA IIO. - 12) Regarding ground 8, counsel submitted that therc was evidence of mitigating I-actors that would warrant the Court to hand down a lesser sentence than death. Counsel cited similar cases where the courl handed down sentences ranging lrom l7 years to 25 years of imprisonment. Counsel cited several cases to beef up the submission. These included Uganda Vs. Kamusiime Daniel [20091 UGHC 125, Kakubi v Uganda, Court of Appeal No 126 of 2008, Lule Fcsto Vs. Uganda, Criminal Appeal No. 214 of 2009, Odongo Vs. Uganda [20181 UGCA I l0 and Mbarushimana v Uganda [20181 UGCA 90. 15 20 - l3] Counsel also condemns the trial Judgc lor inordinate delay and death row syndrorne. Counsel argued that the inordinate delays have been held by the court to be in breach ofarticles 24 and 44(a) ofthe Constitution. Counsel cited Turyatunga v Uganda, 120241 UGCA 13, Dusabe Odeta v Uganda, Criminal Appeal No. 070 of 2016. - l4l Counsel invited this Court to accept the Appeal.

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## Submissions by counsel for the Respondent

15] In response counsel argued grounds I to 4 jointly. On ground I counsel argued that there was no contradiction between the evidence of PW3 and the medical evidence as alleged by counsel for the Appellant. Counsel cited Alfred Tajar v Uganda, Criminal Appeal No.l6711969 (unreported)

16] As regards ground 2 counsel responded that the witnesses could not be expected to be precise. However, what was important, was that they were agreeable that the incident took place around l:00 p.m. and that it was the Appellant who cut the deceased. 10

- 171 On grounds 3 and4 counsel invited this court to find them untenable. - 181 In response to ground 5 conceming proper identification, counsel submitted that there were favourable conditions for proper identification. Counsel argued that PW2 and PW3 were known to the Appellant and the incident happened during broad day light. 15 - l9l Regarding the defence of Alibi which is ground 7 counsel for the Appellant submitted that PW2 and PW3 squarely placed the Appellant at the scene of the crime. Counsel cited the case of Festo Androa Asenua and anothcr v Uganda, [20181 UGSC 28 which laid down the principles governing the defence of Alibi. 20 - 20) Counsel submitted regarding the discretionary power to hand down the death sentence, that considering the aggravating circumstances in which the offence was committed the trial Judge rightly passed a maximum sentence of death. 25 - 211 On ground 8 regarding the harshness ol the sentence, counsel submitted that this Court would not interfere with the trial court's sentence unless the trial 5lPage

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- 5 court acted on wrong principles or overlooked a material factor where the sentence was manifestly excessive or too low to amount to a miscarriage of justice. - 22) Finally, on ground 9, counsel argued that the delay to prosecute cannot be visited on the State, and besides the appeal has been heard so the submission on inordinate delay and the death row syndrome are redundant

#### ANALYSIS

- 231 It is the duty ofa first appellate Court to review and re-evaluate the evidence before the trial court and reach its own conclusions, taking into account of course that the appellate Court did not have the opportunity to hear and see the witnesses testify and observe their demeanour. See Rule 30(l) (a) of the Court of Appeal Rules and Pandya v R [957] EA 36; Ruwala vs. R [f 9751 EA 570; Bogere Moses v Uganda ll998l UGSC 22; Okethi Okale v Republic [19651 EA 555; Mbazira Siragi and Anor v Uganda [20071 UGSC 2. We shall do so accordingly. - 241 According to the Appellants it was not in contention that there was a death of a one 'l'ausi and it was unlawful. However, what is in dispute is the participation of the Appellant. 20 - 251 The leamed trial Judge reviewed the evidence before him. He noted that in proving their case, the prosecution relied on direct evidence from two eyewitnesses, the recovered kitler panga which had blood stains, and the conduct of the accused person after the offence.

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- 5 261 The trial Judge believed the evidence of I'W 2 and PW3 and disbelicved the alibi by the Appellant that he came back lrom school and found the victim deceased. - 27) According to PW2 Sumini Nakyuka an eye witness, testified that as she moved along the road, she heard something like a big cut. She looked behind and saw the accused with a panga and someone lying down 30 meters from her. She made an alarm stating that it was likely that someone had bcen killed.

281 In response to the alarm, PW3 went to the scene and saw the Appellant run away at about 150 metres with the panga. The trial Judge noted that PW6 knew the Appellant very well as his brother because their lathers are brothers.

- 29) When PW3 arrived at the scene of the crime, he lound that the person killcd was Tausi. As the Appettant ran he stopped and looked at PW3 and ran again. PW3 saw cuts on the hip and left shoulder. 15 - 30] The trial Court was also able to evaluate the conduct o[ the Appcllant after the incident. The evidence ol PW2 and PW3 was that the Appeltant ran away from the scene. If he was innocent, he would have made an alarm. But he claimed he came home and lound the deceased dead so he got a bicycle and went to report and the people started chasing him and that he was the murderer. The act of running away from the scene without making an alarm was a sign of guilty conscience on the Appellant's part. 20 - 31] PW4 Ndoboli Eryakumi also corroborated the fact that the Appellant was chased for the murder of Tausi. 25 - 32) The fact that the Appellant used a panga, to kill thc victim was corroborated by the evidence of PW5, No. 4555 PC Walamuka Samuel and PW6 No. 22908

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- 5 D/CPL Werishe the storekeeper. PW5 affirmed that they conducted a search and found the panga in the papyrus rool'o1'the Appcllant's housc. - 33] In his assessrncnt ofthc cvidcnce conccrning the killcr Panga, thc trial Judgc observed that;

" Regarding failure to take the panga to analyse the blood .rample found lhereon. I will hold that it was nol fatol for lhe same was clearly described by lhe eyewitnesses and recovered the very day in the ceiling of a house belonging lo the accused person. T'here is no evidence that the house did not belong to the accused.

Prosecution evidence has been consislenl v)ilh no controdictions. I'he accused never went into hiding. T'he events leading to his orrest followed each other and in hroacl daylight. No mislake would arise in the circumstances. "

- 34) Mr. Turyamusiima submitted that the evidence was full of contradiction. For instance, PW2 while testifoing PW2 did not describc the fact that the Appellant had a panga and radio and only mentioned the panga. I-{e also argued that postmortem described the wounds that PW claimed to see but failed to describe. Furthermore, counsel argued that the timing of the event was inconsistent, while PW2 stated that was l:00 p.m., PW3 described that it wasl:30 PM. That the other contradiction was PW3 described running to the scene with his wife yet PW2 did not mention PW3's wife. - 35] 'l'hc law on contradictions and inconsistencics in thc prosccution cvidencc is laid down in Obwalatum Francis v Uganda, S. C. C. A No. 30 of 2015 (unrcportcd) where it was held that:

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5 "the law on inconsistency is lo the effect that where lhere are conlradictions and discrepancies between prosecution wilnesses which ore minor and of a tivial nature, lhese may be ignored unless they point to deliberote untrulhfulness. Ilowever, where contradictions and discrepancies are grove, this would ordinarily lead to the reiection of such testimony unless satisfactorily explained. "

- 361 We have analyzed the evidence on record and found no major inconsistencies. They are trivial in nature and cannot go to the root of the matter. There is consistency as to the actual event of death, the person responsible, and the killer weapon. The difference of 30 minutes in the occurrence of the events cannot be said to be a major contradiction. Neither can the description ofwounds by a professional and a layman be said to be a major contradiction that warrants the court to reject the testimony of a wltness. - 371 As regards proper identification, the Judge reviewed the evidence on record in relation to the law regarding proper identification as stated in Abudalla Nabulere v Uganda, [978] UGSC 5 and noted that it was the Appellant who was the assailant of Tausi. The Judge noted that this attack took place at l:30 p.m. during broad daylight. He also clearly noted that PW2 and PW3 knew the Appellant very well as close relatives as such there was no mistaken identity. 20 25 - 38] Considering the above assessment, we are unable to fault the learned trial Judge for believing PW2 and PW3 and rejecting the Appellant's version of events. The evidence of the prosecution was credible and led to only one inference that the Appellant had unlawfully killed Tausi with malice

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- aforethought. The evidence of the prosecution squarely put the Appellant at the scene of the crime, and therefore the defence of alibi cannot stand. 5 - 391 Ground 4 does not state the point of law that the Judge erred, it only states that he had ered in law and fact in his approach. There is no specific point of law where he made an error. - 10 401 Grounds I to 6 {ail.

41) Conceming sentencing, the learned trial Judge stated as follows: -

## Courl: Senlence and rcasons

| | | "The convict is a firsl offender but at his young oge, he committed a | |----|--|-----------------------------------------------------------------------------| | | | heinous crime. I will consider the time spenl on remand bul agree with | | 15 | | the submission by the State that precious life was lost. It cannot be | | | | replaced. T-he circumslances under which the offence was commitled | | | | were so brutol that the deceased died instantly al lhe young age of | | | | barely 30 years. The attack by the convict on his victim was wanton and | | | | savage. The convict is clearly a violent man and a danger lo sociely yel | | 20 | | he is slill young. 'The olJ'ences of murder dre rampanl in this country. | | | | The convict does not appear remorseful and was indffirent throughout | | | | lhe trial. He deserves a senlence that will send a serious signal that | | | | taking life wantonly cannot be condoned by this Court | | | | Il is trite that a dealh penalty can be handed down in exlreme cases | | 25 | | only. Ifind this such a case. | | | | Consequently, I will sentence lhe convict to death in accordance wilh | | | | the law. | | | | Right of appeal explained. " | | | | 42] The death sentence is no longer mandatory following the decision of the |

Supreme Court in Attorney General v Susan Kigula and 417 others, l0 lPage

5 [2009f UGSC 6. The Susan Kigula decision did not make the death sentence illegal. Therefore, a sentencing Judge exercising their discretion can pass a death sentence. The Supreme Court explained the application of the decision of Susan Kigula in Ssekawooya Blasio v Uganda, J20l8l UGSC 6. The Court stated thus;

> "the implication of the Kigila decision was thot a senlencing Judge relained his or her discretion lo delermine an appropriate senlence Jbr a person convicled of murder whereas previously lhe only sentence thdt a trial Court could mete lo a person cont,icled o.f murder was a death senlence "

15 43) 'Ihe circumstances in which an appellate Court can interfere with the sentence imposed by a lower Court are set out in several decisions of this Court and the Supreme Court. In Kyalimpa Bdward v Uganda, Criminal Appeal no. l0 of 1995, (unreported) the Supreme Court referred to R v Haviland (1983)5 Cr. Appeal R(s) 109 where it was stated: -

> "An appropriale senlence is a maller of discretion of the sentencing .iudge. Each cose presenls its own fact upon which a.iudge exercises his discrelion. It is the practice lhat as an appellate court, this court will not normally interfere with the disuetion of the sentencing judge unless the sentence is illegal or unless lhe court is satisfied that the judge was manifestly so excessive as to amounl lo an injuslice. "

441 In his submissions, Counsel for the Appellant argued that the trial Judge erred in law when he failed to consider the two-stage test in deciding whether or not to pass the death sentence.

451 The decision in Attorney General v Kigula and 417 others [supra] was a Constitutional Appeal decided by 7 Justices. It cannot be overulcd by the Supreme 30 11 lPage

- 5 Court in a Criminal Appeal with 5 justices, without being considered. One panel deciding to override an earlier decision by a panel with higher number ofjustices is to abrogate the principle of horizontal precedent. We would thus interfere with the decision of the trial judge with regard to the sentence imposed on the appellant. Having said that, we take the view that Attorney General v Susan Kigula and 417 others (supra) did not take away the discretion to impose the death penalty. It can bc imposed in deserving cases. This case on appeal, in our view, is not one of them, that deserved imposition of the death lpenalty. It is not the rarest of the rare ones or the worst of the worst cases. 10 - 461 Counsel further faulted the trial Judge for not considering the mitigating factors raised by the Appellant. To be more specific the age of the Appellant. However, according to the record, the trial Judge considered the age of the Appcllant and other mitigating factors when he stated that:

"l'he convict is u.first q/fender but al his un 0 he commille.l a heinous crime. I u'ill con,sider lhe time spent on remand...."

41) Counsel for the Appellant also cited several cases to show that this Court and the Supreme Court have passed less severe sentences in similar matters. Counsel cited Uganda v Kansiime Daniel [20091 UGHC 125, Kakubi v Uganda, Criminal Appcal No. 126 of 2008, (unreported), Lulu Festo v Uganda' Criminal Appeal No. 210 of 2009, and Mbarushimana v Uganda' 2018 UGCA 90. 20 25

481 In ground 9, Counscl lbr the appellant talks ofthe death row syndrome. The death row syndrome starts after sentence and could not have been considered by the Trial Judge at the trial. The period spent on pre-trial remand as a result of

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5 delay to prosecute cannot be equated to death syndrome row before conviction The delay to prosecute is deducted lrom the sentence. This ground therefore fails.

49) The principle of consistency is provided for under paragraph 6 (c) of The Constitutional (Sentencing Guidelines for the Courts of Judicature) (Practice)Directions Legal Notice No. 8 of 20 I 3. The principle provides that:

dL'L',OUnl the need.for consistency with appropriate sentencing levels and other means of deoling with o./fenders in respecl of similar offences commitled in similar circumslances; " '' 6. Generul sentencing principles. li,ery courl shall u,hen sentancing an oilbnder take into

50] 1'he Supreme Court in Aharikundira Yusitina v Uganda, SCCA No. 27 of 2015, held that:

> "Ilhile senlencing, an appellate courl musl bear in mind thal il is selling guidclines upon which lower courls shall follou, while scntencing. ,lccording lo lhe doclrine o.f stare decisi,s, the decisions of appellate courls are biruling on lhe kruer courls. Precedents and principles conlained lherein acl os senlencing guidelines lo the lower courls in cases involving similar.ftrcts or offbnces since lhey indicate the appropriate senlenca to be imposecl. "

5l] It was noted that even when the Courts are bound by the decisions of the higher Court in similar matters, the principlc of consistency does not deprive the sentencing Court power to exercise their discretion to pass down a sentence that is appropriate in the circumstances of each case. 25

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## 5 521 In asscssing whcthcr thc scntcncc is harsh and manilestly excessive the Supremc Court in Aharikundira Yusitina v Uganda, (supra), held that;

"I'here is a high threshold to be mel for an appellate court to intervene with the sentence handed dou,n by a trial judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter oJ judicial discretion therefore perfect unirtrmity is hardly possible. I'he key word is "mandeslly excessive". ln anpellate court v,ill only inlervene where lhe rcntence intposed exceeds lhe permissible ronge or senlence ( I:mphasis ours)

531 Section I I of the Judicaturc Act vests this court with the same powers as the trial Court in the lbllowing tcrrns: 15

> " I l. Court of Appeal to have powers of the court of original jurisdiction for the purpose of hearing and determining an appeal, the Court of Appeal shall have the powers, aulhority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated " .

541 In the exercise of the above mandate, we shall consider both the mitigating and aggravating factors adduced at the Trial. In mitigation, it was adduced that the convict is a first offendcr. At his young age of 22 years and in Senior 3, he is capable of reforming and continuing with his education and be useful to the community. On aggravating factors, the attack by the convict on his victim was stated to be wanton and savage. The convict was stated to be a violent man and a danger to society yet he is still young. The offences of murder are rampant in this country. -fhe convict did not appear remorseful and was indifferent throughout the

trial. 30

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5 We are also alive to the principle of uniformity and consistency in sentencing which we are required to comply with. The mitigating factors should have been to the credit of the appellant and leading to a lesser harsh or severe sentence. See: Sentencing Principle No. 6 (C) of the Constitution (Sentencing guidelines for Courts of Judicature) Proclice Directions, 2003 - Legal Nolice No. 8 of 2012, and Aharikundira Yusitina Vs. Uganda, Supreme Court Appeol No. 27 of 2015. 10

551 Ordinarily a sentencing principle, a first offender will not attract the maximum punishment unless the conditions the law has established for imposition of the maximum sentence are established. In this case, in our view no conditions were established that call for the imposition of the death penalty. This is not the rarest of the rare cases.

We consider 30 years' imprisonment as the appropriate sentence in the circumstances of this case.

56] With the above analysis we find that this appeal has merit.

571 Pursuant to section l l of the Judicature Act, we shall proceed to re-sentence the appellant afresh. 20

58] Taking into account the aggravating and mitigating factors mentioned herein before we deem as a sentence of 30 years' imprisonment to be the appropriate sentence in this case. We deduct the period of I year and 7 months the appellant spent in pretrial custody. The appellant shall serve a term of imprisonment of 28 years and 5 months.

Decision

l. Appeal partially succecds

2. The sentence ofthe trial court is set aside.

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3. The appellant shall serve a term of 28 years and 5 months' imprisonment $\mathsf{S}$ from $03^{rd}$ April 2012, the date of conviction.

We so order

Lip $\frac{1}{\cdots \text{ day of } \cdots}$ $\cdots \cdots \cdots 2024$ Dated at Kampala this ....

FREDRICK EGONDA-NTENDE **JUSTICE OF APPEAL**

**CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL**

OSCAR JOHN KIHIKA JUSTICE OF APPEAL

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