Nakato and Another v Uganda (Criminal Appeal No. 618 of 2014) [2022] UGCA 30 (11 February 2022)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MASAKA

## CRIMINAL APPEAL NO. 618 OF 2014

# CORAM: (Cheborion Barishaki, Stephen Musota, Muzamiru Kibeedi, JJA)

## 1. NAKATO JOYCE

$5$

2. SENTEZA TWAIBU:::::::::::::::::::::::::::::::::::: $10$

#### **VERSUS**

$UGANDA \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \$

(Appeal from the sentence of the High Court of Uganda at Masaka before Hon. Lady Justice Margaret Oguli Oumo dated 24th April, 2013 in Criminal Session Case No.33 of 2010)

## JUDGMENT OF THE COURT

This is an appeal against both conviction and sentence arising from the decision of Hon. Lady Justice Margaret Oguli Oumo dated 24th April, 2013, where by the appellants, Nyakato Joyce and Senteza Twaibu were convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to 26 and 40 years imprisonment respectively.

The background to the appeal is that on the evening of 29th June 2009, the deceased Bukenya John Edward left Kihimba trading Centre where he operated a shop with his wife from home. He was riding a bicycle his way back home while his wife Rosette Bukenya followed him on foot. As Rosette

continued her journey home, she found her husband lying in a pool of blood $\mathsf{S}$ on a road side. Before the deceased was murdered, the 1st appellant who is also the deceased's daughter had on several occasions threatened to cut him with a panga if he did not give land to her son, Ssenteza Twaibu, 2nd appellant. That the chairman LC1 convened a meeting one time to settle the land problem between the 1st appellant, her children and the deceased but the 1st 10 appellant and her children never showed up but continued to threatened to kill the deceased. That despite several attempts by the Local Council to settle the matter, the 1st and 2nd appellants continued to threatening the deceased that they would cut him with a panga. Three days before his death, the 2nd appellant found him watering cows with his son 7-year-old son Balinda 15 Herbert and attempted to cut him but he fled for his safety.

After the murder the appellants were arrested and upon examination they were all found to be normal. They were tried, convicted of the offence of murder and sentenced to 26 years imprisonment for the 1st appellant and 40

years imprisonment for the $2^{nd}$ appellant. 20

> Being dissatisfied with the decision of the learned trial Judge, they appealed to this Court against both conviction and sentence on the following grounds;

1. That the learned trial judge erred in law and fact when she failed to properly evaluate the evidence and came to a wrong conclusion that the ingredient of participation by the appellants had been proved beyond reasonable doubt.

- 5 2. That the leamed triat jud'ge erred ln la ut and Jact uhen she conticted the appellants solely on circumsto;ntial evidence uithout due regard to the appellants defence oJ alibi whlch uas not contested by the prosecution dnd hence come to a u'rong conclusion. - 3. Thcrt the learted trialiudge erred ln law and fact uthen she failed to stdte the reasons for departing Jron the opinion of the 1"t Assessor in her Judgment, 10 - 4. In the dlternative, the learned trial iudge erred in law uthen she sentenced the 7st olpPettolnt to imprisonment Jor a tenn Jor 26 gears and the 2na appetlant to imPrisonment for a terrn oJ 40 gears uthich sentences are uniustiiiable and uery horsh'

At the hearing of this appeal, Ms' Namawejje Sylvia appeared for the appellants on private brief and Ms Amumpaire Jennifer' Assistant DPP holding brief for Angutoko Immaculate Chief State Attorney' appeared for the 20 resPondent

CounselfortheappellantSoughtleaveofcourttovalidatetheNoticeofappeal and memorandum of appeal having them out of time and the same was granted.

Itwassubmittedfortheappellantsthattherewerenoeyewitnessestothe gruesome murder and that the prosecution's theory that the appellants murdered the deceased since they were known to have a land grudge with him was only relevant to prove the appellants' motive for the murder but ''vas 25

not sufficient to prove the ingredient of participation' That the prosecution failed to adduce evidence of the appellants' acts and omissions either linking them to the murder or placing them at the scene of crime 5

Counsel contended that there were evidential gaps in the prosecutron evidence which suggested other possible suspects but not the appellants' That it's the duty of the prosecution to proof the guilt of the accused beyond reasonable doubt. He cited the case of Miller vs Minister of pensions llg47l2 ALL ER 372 tt 373 and Uganda v' Dick Ojok (1992'93|HCB s4 and contended that the prosecution failed to prove the participation of the standard.

On ground 2, it was submitted that the prosecution-s evidence was circumstantial and other than the evidence of existence of a grudge that only pointed to the motive, no direct evidence was adduced against the appellants linking them to the conclusivelY Point to murder. That the circumstantial evidence did not Faustino vs Uganda CACA No' 0t284 of 2OI-4 and Jephline Lubega & othersvsUgandasccR. APPNo'o5oflgg2forthepropositionthatwhere the prosecution evidence does not point irresistibly to the guilty of the appellant, such evidence is not enough to secure a conviction' 15 20 the guilty of the appellants. He referred to Budri

Regarding the appellants' alibi, it was submitted for the 1't appellant that she was at home in Rugamba village which is a neighboring village to Rwamatengo were the murder was committed and that it's a one hour waik from there' That the l"t appellant could not go to her father's home' the deceased on account that she had delivered twins and certain ceremonies were yet to be 25

5 done before she could visit her father and that it's only the deceased who occasionallY visited her.

It was submitted for the 2'd appellant that at the time of the murder' he was at work and in company of a guard of his employer'

Counselcontendedthatbothalibiwerenotinvestigatedtoeitherconlirmor discredit the said assertions or contested by the prosecution. That in light ol the above, court be pleased to squash the conviction and sentence against the appellants. 10

onground3,itwassubmittedfortheappellantsthatwhilecourtisnotbound to follow the opinion ofassessors, it is required by the law to state the reasons fordeparturefromtheassessors,opinion. HecitedSections2(3)ofTrialon Indictment Act. That one assessor recommended an acquittal and the other a conviction. Counsel contended that it was necessary for the learned trial judge to give reasons of her departure from the l"t assessor's opinion and for agreeing with the 2''l assessor. That the 1st assessor's opinion raised pertinent evidential gaps regarding the appellants- participation and link to the murder demonstratingthattheprosecutiondidnotproveitscase. Thathadthejudge given reasons for the departure, it would have shown that the matters raised by the assessors had been considered by court when determining the matter' That this mandatory requirement was not complied with which was an error 25 on record.

On ground 4, Counsel submitted that the appellants were convicted of the same offence and the I"t appellant was sentence d to 26 years imprisonment

5 well as the 2.d appellants to 40 years. That the trial judge did not give reasons why 2 convicts of the same offence were punished differently' He submitted that the evidence on record shows that it was only the l"tappellant who had agrudge with the deceased which fact was used as alleged motive for the murder. However, that the evidence on record does not specify individual acts and omissions of the appellants to have warranted court to meet out different sentences against the aPPellants 10

Counsel further submitted that the learned triai judge did not correctly consider all the mitigating factors i.e. that the both appellants were lst timc offenders. That the judge erroneously considered the age of then appellants as at sentencing as opposed to the time the offence was committed as stated inthesentencingguidelines,Thatatthetimetheoffencewascommitted,the l"t appellant was aged 35 years o1d female, a primary care giver of infants while the 2'd appellant was an 18 years old and a first time offender'

Further, that whereas the trial judge recognized that the appellants had been on remand for 4 years at the time of sentencing, there was no indication that theremandperiodwasdeductedofftheirSentencesasrequiredbylaw. 20

Counsel cited Obwalatum Francis v Uganda SCCA no 30 of 2O15 where the appellant was tried convicted of murder and sentenced to 50 years having caused the ioss of life of 2 people through torture On appeal' the sentence was reduced to 20 years imprisonment' Counsel contended that in the instant case the sentences of 26 and.40 years were harsh and excessive and prayed for a lenient sentence of 10 years each'

- 5 In reply, the respondent adopted its submissions in the trial court on this matter and further submitted for the respondent that whereas no direct evidence was adduced by the prosecution to prove participation of the appellants, they relied on a strong chain of corroborated circumstantial evidence of PW1, PW2, PW3, PW4, PW5, PW6' PW7' PW8' - Regarding the 1"1 appellant's participation, PW3' PW4' PWs and PW6 clearly testified about her participation' That the deceased had been cut on the head and was lying in the middle of the road and this was synonymous with the threats and attempts that had been made by the appellants which the witnesses alluded to. 10 - ThatPWl,BalindaHerbertstatedthatthe2"dappellantattemptedtokillthe deceased at the well but failed' That the threats and attempts to kill the deceased by lst and 2nd appellants where made within the proximity and time within which the deceased was murdered That the deceased's utterances and the testimonies of the witnesses in support of participation of the 1"1 appellant 15

made reference to the 2'd appellant' He relied on Mureeba Janet and Anor v Uganda SCA 13 of2OO3 and Waihi and Anor v Uganda (19681 E,A278 for the proposition that evidence of prior threat or an announced intention to ki11 is always admissible evidence against a person accused of murder' but its probative value varies greatly and regard must be had to the manner in which thethreatiSuttered,whetheritisspokenbitterlyorimpulsivelyinsudden anger of jokingly, and the reason for the threat' if given and the length of time between the threat and killing are material ' 20 25

- 5 Thatthemodeinwhichthemurderwasexecutedwasconsistentwiththat described in the appeliants' threats, the deceased was severally cut with a sharpcuttingobject. Thatthecircumstantialevidenceirresistiblypointsto nothing but the guilt of the appellants and the inculpatory facts are incompatible with their innocence and only explain the guilt of the appellants' - He cited simon Musoke v R (1958f E. A, Sharma and Kumar v uganda SCCA No. 44 of2OOO. 10

On ground 2, it was submitted for the respondent that the trial judge considered the alibi of both appellants and rightly found that the prosecution hadsufficientlydestroyedthealibi. Thatthecircumstantialevidenceover whelming pointed to the participation of the appellants He contended that the 1"1 appellant did not raise an alibi but only denied and stated that since she gave birth to twins she did not go home until a ceremony to welcome twins is performed. That the 2"d appellant raised an alibi that he was at work'

Counselsubmittedthatthedeceasedwasnotmurderedathishomebutby the road side about 150 meters away from his home and that basing from the prosecution evidence, the distance between the scene of crime and the residents of the appellants is walkable within I hour' That the respondent adduced cogent circumstantial evidence that placed the appellants at the scene of the crime and disapproved their alibi' 20

Onground3,itwassubmittedfortheappeliantthatthetrialjudgereasons for not agreeing with the 1"r assessor were comprised in her elaborate analysis of the evidence. That there is no particular standard' style or structure required for the trial judge to state such reasons for departing from the

5 assessors' opinion. That be as it may, no miscarriage of justice was occasioned since the judge is not bound to conform to the opinion of assessors'

On ground 4, counsel submitted that, the maximum sentence of murder being deathasstatedinS.lsgofthePenalCodeAct,thesentencesof26and40 years were within the one that is prescribe by law' He cited Kiwalabye Bernard v Ug SCCA NO.143 of 2OOl for the proposition that an appellate courtwillonlyinterferewiththeSentenceimposedbythetrialcourtifitis evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive if the circumstances of the case'CounselcontendedthattheSentenceswerejustiliableconsideringthe fact that the maximum sentence is death' The trial judge properly exercised

herdiscretionwithintheprecinctsofthelawandindoingsotookintoaccount the aggravating and mitigating factors, and the period the appellants had spent on remand. 15

Inrejoinder,itwassubmittedfortheappellantsthattheprosecution'stheory thattheconflictthatledtothedeceaseddemisewasrelatingtolandwhich wasthel"tappellant. Smotiveforkilling. Thatbothappellantstestifiedthat they had a good relationship with the deceased as a father and grandfather' That even though the deceased's widow PW3 and her 3 sons' PWl' PWS' and PW6 gave a contrary account, the investigation did not confirm or discredit eitherversionandthattheevidenceofmotivedidnotsatisfytheingredientof participation. 20 25

Counselsubmittedthattheprosecution.sevidencethatthel"tappellanthad been seen within the village did not place her at the scene of crime and that

5 the evidence did not rebut the alibi' That the case of Mubeere Janet and 2 others v Uganda Supra is distinguishable from the instant case as the circumstantial evidence therein was able to show who was liable for the murder and by what means they murdered and who specificaily executed the deed. That in the present case, the circumstantial evidence only shows the appellants as the mostly likely suspects without clarity on who specifically executed the deed and how it was done' 10

That the assessor's opinion and the requirement in section 82(3) of the Trial on Indictment Act requiring the trial judge to give reasons for her departure fromtheassessor.sopinioncannotbesatisfiedwithintheevaluationof evidence as suggested by the respondent' That the provision makes it mandatory for the trial judge to state reasons for departure from the assessors' oPinion.

She concluded by submitting that the ingredient of the appellantsparticipation was not proved beyond reasonable doubt and that the circumstantial evidence on record was not sufficient for a conviction'

The duty of this Court as a first appellate court is to re-evaluate all thc evidence on record and come to its own conclusions as Rule 30 (1) (a) oI the Jrtdtcature (Court oJ Appeal Rules,f Directions' SI 13-10 was held in the case of Orgem Richard us llganda; Crlmlnal Appeal No' 22 oJ 2014 25 (sc,

Wehavecarefullystudiedthecourtrecordandconsideredthesubmissions ofbothcounsel. Wearealsoalivetothestandardofproofincriminalcases

10 I

and the principle that an accused person should be convicted on the strength of the prosecution case, and not on the weakness of the defence' See: Akot Patrlck & Others vs' Uganda; Court oJ Appeal Crlmlnal Appeal No. 60 of 2OO2' 5

The first ground of this appeal faults the learned trial Judge for not evaluating 10 the evidence and came to a wrong conclusion that the ingredient of participation by the appellants had been proved'

From the submissions of counsel for the appellants' the only ingredient in contention is participation of the appellants' We are also alive to the fact that there were no eyewitnesses to the murder and all the evidence available on record is circumstantial evidence'

In a case depending exclusively upon circumstantial evidence' the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused' and incapable of explanation upon any other reasonable hypothesis than that of guilt' See Slmon Musoke

## as. R[1958]D 775. 20

Throughout the record, it was submitted for the appellants that the existence of a land grudge was only proof of motive but this did not prove the participation of the appellants in the murder' Suffice to note the presence of amotivecanbere]evantandStrongcircumstantialevidencetendingtoprove that an accused did or did not do a certain act for which he is charged' These facts are relevant facts as per sections 9' 10 and 13 of the Evidence Act'

While determining the appellant's participation in the murder' the learned

11 I

trial judge stated as follows; $\mathsf{S}$

> "Most of the threats by Nakato on the deceased's life intensified in the month of June. Also A3 tried to carry out his mission on Sunday 28th june 2009 but failed because of PW1's presence with his father the deceased at the well, it was on 24th June, 2009 that Nakato was seen near her father`s shop threatening to kill him. PW4 the deceased`s mother informed court that 2 weeks before the deceased was killed he had told her of the death threats made by

$A1.$

$\bullet$

Its court's view that the threats and occurrences made by A1 and A3 were within the proximity and time within which the deceased was killed. The sequences follow each other until the mission was executed."

PW2, Twino Charles Mansio Detective inspector testified that the deceased body had cuts on the hand and multiple cuts on the neck, two fingers were cut off because we found them at the road side. That the body had cuts on the leg.

It was PW3, Rosette Mugenyi Muhume widow to the deceased testimony that 20 the deceased and the 1st appellant the deceased's daughter had grudges over land disputes. That the deceased came and told her at the shop that the 1st appellant had told him to add her more land and if not she would cut him into pieces. That on 28th June 2009 her and the deceased went to the land in question with the chairman and insisted that he will not add the 1st appellant 25 and her sons more land since he also had other children and that if the 1st appellant and her sons wanted to kill him, they should do so.

12 | Page

5 pw4, Christine Nakisiba Nalongo the mother to the deceased testilied that the deceasedtoldherthatifsheheardthathewasdead,itwouldbethel"t appellant who would have killed him' That the deceased told her that he had given the l"t appellant her land, but she wanted more for her son Kamuli sincehershadbeenoccupiedbyTwaibuthe2ndappellant'Thatthedeceasec( refused to give her more land and that's why he was killed. That after 2 weeks after their meeting she heard that her son had been killed' 10

PWS,PatrickMagozasontothedeceasedalsotestifiedthatthel"tappellant cametotheshopcallingandquarrellingwiththedeceasedtogivehermore land. Thatshequarreledandsaidthat..weshallkillyou."Andthatwithina week, BukenYa died.

pws witnessed the quarrel that he heard the l"t appellant quarrelling and he saw her. And this was on 24s June 2010. That he was familiar with the l"t appellant's voice since he knew her since she was born'

PW6,senjobeEriaalsosontothedeceasedtestifiedthatwhenheheardan alarmherespondedandfoundhisfatherhadbeenCutontheheadandwas lyinginthemiddleoftheroad'Thatthedeceaseddidn.thaveanygrudgewitlr anyone except his daughter the 1"t appellant regarding the small land they hadgivenherasshewantedabiggeroneforherchildren'Thatthegrudge hadtakenlongandthel"tappellanthadsaidthatifthedeceaseddoesnot giveherkibanja,shewouldcuthim. Hefurthertestilredthatwhilecoming fromoneSembuya.sfuneral,thel"tappellanttoldthemthatitsonly3of them i.e. the deceased himself and another who were barring her from getting thekibanjaandthatifthedeceaseddidnotgiveittoher'shewouldkillhim' 20 25

13 I

5 He further stated in evidence that he heard the l't appellant say that she had procured a machete and they would cut him if he did not add her more land'

PW1, Baiinda Herbert a son to the deceased testified that he was at the well with his father giving cows water and the 2"d appellant came with a panga' he wanted to hack the deceased and when he saw him' he started jeering him'

PW6,senjobaEriatestifiedduringhiscrossexaminationthatthedeceased told him that after the meeting the deceased had arranged with the chairman to show the 1st appellant her boundaries flopped on Sunday 28l6l09 as tl:.e l"tappellantandhersonsrefusedtocome,thedeceasedwenttogivecows water and the 2'd appellant wanted to cut him but since PW 1' Balinda Herbert wastherehecouldn-t. Thatafterthatattempt'thedeceasedwaskilledthe 10 15

following daY, on MondaY.

PW7, Senkoto Patrick testified that when he was called by the vice chairman to go at the scene where the deceased had been murdered' they found that he had been cut with a panga on the head and neck' That on 26'6'2009 at about 8;30-9:30am, the I"t appellant had come to him complaining about not being given land by her father the deceased' He told her that he would convene a meeting with all of them to talk about it' That on 27 '6 '2OO9 at around 8:0Oam the deceased told him that the 1"t appellant and her sons wanted a kibanja and if he didnot give it to them, they would harm him' That on 28 '6 '2O2O when the LC Committee and the deceased went to talk to the l"t appellant andhersons,theyfoundtheirhomeclosed. Thatthefollowingday'heheard thatthedeceasedhadbeenmurdered'Hefurthertestiliedthatthelst 20 25

5 appellant and her children had a land grudge with the deceased who said that if he did not add them more kibanja they would do harm to him'

That the deceased had a grudge with the 2"d appellant because of the house' Thatthe2ndappellantcutsticksthathewasgoingtobuildanotherhousebut Bukenyarefusedhim. Thatthedemandforkibanjabythel"tappellantwas

well known in the village. 10

> PW8, Sagala James testified that on Sunday' he went to the deceased's home andthedeceasedtoldhimthatthel".appellantandherchildrenwanttokill him as they want more land. That the following day, on Monday, he was informed that the deceased had been killed'

The principle regarding past threats on the deceased was laid down in the case of Mureeba Janet & Anor versus Uganda SCCA No' 13 of 2OO3 wherein court stated that 15

"Past threatts on the deceased bg his or her assailant can be good euidence leading to a conuiction. Hotueuer, there must be sufficient proximity bettueen tle threats and the occurrence of the death in order to a form a transaction' then it uould not constitute ciranmstances of the transaction leading to the death of the deceased. The ciranmstances must be ciranmstances of a transaction. General expression indicating fear or suspicion' whether of a partianlarind.iuidualorothenliseandnotdirectlgrelatedtotheoccasionofthe 2s death."

Ali the prosecution witnesses testified to the existence of a land grudge between the 1't appellant and the deceased and indeed the 1"t appellant was

1sI

5 in cohort with her sons especially the 2"d appellant' Threats to kill the deceased were regularly made and attempt on his life by the 2"d appellant was made a day before the actual murder'

Even if most witnesses were told about the threats and attempts by the deceased which would be hearsay evidence, their testimonies are relevant and admissible under section 30 of the evidence Act'

Section 3O ofthe Evidence Act provides;

Cases in which statement of releuant fact bg person uho is dead or cannot be found, etc. is releuant

statements, uritten or uerbal, of releuant facts made bg a person uho is dead' or ruho cannot be found, or who has become incapable of giuing euidence' or uhose attendance cannot be proanred without an amount of delag or expense uhich in the circumstances of the case appears to the court unreasonable' are themselues releuant facts in the follouing cases-(a)uhen the statement is made bg a person as to the cause of his or her death' or as to any of the cira. Lmstances of the transaction tt'thich resulted in his or her death' in cases in uthich the cause of that person's death comes into question and the statements are releuant whether the person tt-tho made them uas or was not' at the tine uhen theg uere mad.e, under expectation of death' and uhateuer may be the nahtre of tlrc proceeding in rtthich the cause of his or her death comes into 15 20

25 question

It,sclearfromtheevidenceonrecordthatthesethreatsandtheattemptto kiilthedeceasedweremadewithintheproximityandtimewithinwhichthe

5 deceased was killed' This is because the threats to cut' harm and kill intensified in the month of June' PW4' Nakisiba the mother to deceased testified that 2 weeks before his son's murder' he had told him that sh<''uld he be killed, it would have been the lst appellant to have killed him due to land grudge. This evidence was further corroborate by the testimonies of other prosecution witnesses. Ort' 24th June 2009 the 1st appeliant was heard and seen by PWS, Patrick Magoza threatening to kill the deceased if he did not give her more land PW6, Senjoba Eria heard the l"t appellant say to them that it's them barring her to bet more land from his father the deceased and that she would kilt him if he refused She further told them that she had produced that Machete and they would use to cut him' On 28e June 2009 at thewell,the2.dappellantattemptedtocutthedeceasedwithapangabuthis plan failed due to the presence of PWl, Balinda Herbert' On 27h June 2009' the deceased told PW7 the chairman about the threats by the 1st appellant andhischildrentokillhimifhedidn.taddthemland. Thefollowingday2Sth June 2009 a Sunday, the deceased told PW6' Sagala James stiil about the 1"t and 2'd appellant's threats to kill him' 15 20 10

PW3 Rosette Mugenyi, PW4 Nakisiba Nalongo' PW7 Sentoko Patrick and PW8' Sagala James testified that they were told by the deceased that the lst appellant and her children had threatened to kiil him if he didn't add them more land. It was after a few weeks, days and hours that the deceased was murdered in cold blood on 29th June 2009'

The deceased had told PW3, Rosette Mugenyi that the l"t appellant hari threatened to kill him and cut him into pieces. PW6 Senjoba Eria testified thai'

L7 I

5 heheardthel"tappe]]antSayingthatshewouldcutthedeceasedifherefused to give her more land and that she had produced a machete for that purpose' PW2, Twino Charles Mansio, when he saw the deceased with cuts on his hand' neckandhisfingershadbeencutoff. PWT,sentokoPatrickalsotestifiedthat when he went to the scene he saw the deceased had been cut with a panga on his neck. The day before, the 2nd appellant had attempted to cut the deceased at the Panga at the well' 10

The nature of the appellant's threats and attempt to kill him with a panga were corroborated by the Postmortem Report Exh P'E 1 where in it was stated that he had deep cut wounds on parietal region involving the skull' on the left and right side of the neck, the left posterior palm had deep cut wounds and fingers cut off and the Doctor concluded that a sharp cutting object was used'

In Katende semakula veraua uganda, sccA No. 11 of 1994; the court stated that another requirement concerning circumstantial evidence is that it must be narrowly examined, because evidence of this kind may be fabricated to cast suspicion on another. It is therefore necessary before drawing the inferenceoftheaccused'sguiltfromcircumstantialevidencetobesurethat there are no other co-existing circumstances which would weaken or destroy the inference 20

In light of the above evidence, it's clear that the appellant's threat to kill the deceased and the attempt on his life were squarely made within the proximity and the time he was murdered and the only reasonable inference to be made is that it's the appellants who executed their earlier threats and attempt and killed the deceased. The use of the panga and cutting of the deceased on the 25

18 I

5 hand, neck and chopping of his hngers speaks to no other inference than that thattheappellants.executedtheirthreatsofcuttingintopiecesandkilling him with the panga which the 1"t appellant had procured and there are no co existing circumstances which would weaken or destroy this inference'

On ground 2, the appellants fault the iearned trial judge for convicting the 10appellants solely on circumstantial evidence without due regard to the appellants defence of alibi which was not contested by the prosecutton'

ItiStritethatwhenanaccusedpersonraisesadefenceofalibi,itisnothis duty to prove it. It is up to the prosecution to destroy it by putting the accused person squarely at the scene of crime and thereby proving that he is the one who committed the crime. See: sekitoleko us. uganda [1968] EA 537'

While determining this matter the trial judge stated as follows;

20 "A1 raised the defence of alibi and total deniolshe said since she had giuen birth to tuins sle could not go uhere her father u-tas staging because a ceremonA for the twins had not been catied out and that actuallg it was Senjobe PW6 who had grudges tttith the deceased' The defence was qtashed bg fiue uitnesses who saw A1 at the place uhere her father utas residing thus destroging her alibi, she d-id not call tttitnesses to support her position that it actuallA could haue been Senjobe uho killed the deceased"""""A3 Ssenteza Tuaibu also raised the defence of Alibi and total denial' but uas seen uith a panga at the uell on28th June, 2009'His mission failed as PWl was present 25

at the scene."

1eI

5 DW1, the 1"t appellant stated that ort 29h June 2OO9 she was at her home andhewascalledandtoldherfatherhadbeenkilled. Thatshehadgivett birth to twins in 2OO8 and could not 80 at her father's home not until the ceremony to welcome twins was conducted' That since then it was the deceased who used to visit her'

10 DW3, the 2'd appellant stated that on June 2grh 2OOg he was at work'

The scene of crime was at a village calied Rwandengo 150 meters away from his home and t hour and half from the deceased's home' PWS Patrick Magoza testified that he saw and heard the 1"t appellant at the deceased's shop' We must note that this was not the scene of crime as stated by the learned trial judge therein above in her decision'

In Kazarwa Henry versus uganda' sccA No' 17 of 2oL5; the appellate court stated that:

"We haue to point out that the issue is about "scene of cime' Scene oj crime cannot be enlarged to mean an area. This utas a statement bg the Court not supported by euidence on record ' If a murder is committed in Kampala Distict, it uould' be too farfetched to say that a suspect has been put at the scene of cime because he or she too utas in Kampala District or area of that time' The mateial and releuant issue u'tas the scene of cime uhether there utas euidence placing him at the scene of cime, i.e. the partictilar place where the attack was done "

In Bogere Moses and Another versus Uganda' SCCA No' 1 of 1997; it was held that what then amounts to putting an accused at the scene of crime? We

?s 5 think that the expression must mean proof to the required standard that the accused was at the scene of crime at the material time'

Bethatasitmaythecircumstantialevidenceadducedbytheprosecutionas already discussed in ground I placed the appellants at the scene of crime and disapproves both alibi' Prosecution witnesses alluded to the lst appellant and 2.dappellantandherotherchildren.sthreatstokillthedeceasedbycutting him using a panga' Indeed the day before the murder' the 2nd appellant attemptedtoexecutetheirearlierthreatsagainstthedeceasedatthewellwith the panga but was hindered by the presence of PWl Balinda Herbert' The natureofthethreatsandtheattemptwasvividlyinlinewiththewaythe deceased was murdered. This circumstantial evidence was corroborated by PW6 Senjoba Eria who heard the l"tappellant say she would kill the deceased and that she had produced a machete to that effect' Also the Post Mortem report Exh PE1 speaks to deep cut wounds on the deceased body caused by a sharP object. 15

From the evidence in the case before us' the appellant put up an alibi which the prosecution disproved by the evidence of 8 prosecution witnesses who placed the appellants at the scene of crime' In the context of alluding to the circumstantial evidence lead by the prosecution' the learned trial Judge rightly disbelieved the appellants and we find no reason to fault her finding thatbothalibiweredestroyedandcontestedbytheprosecutionwhenthey placed the appellants at the scene of crime' 20 25

On ground 3, the learned trial judge if faulted for not stating the reasons for departing from the l"t assessor's opinion in her judgment'

2tl

- It was submitted for the appellants that section 82(3) of the TIA enjoins the $\mathsf{S}$ trial judge to give reason for departure from the 1st assessor's opinion and agreeing with the 2nd one. That the 1st assessor's opinion raised pertinent evidential gaps that demonstrated that the prosecution had not proved the case against the appellants beyond reasonable doubt. - It was submitted for the respondent that the reasons for not agreeing with the 10 1st assessor where comprised in her analysis of evidence. That in any case, be that as it may, no miscarriage of justice was occasioned as the trial judge is not bound to follow the opinion of assessors under S. 82(2) of the TIA.

The 1st assessor in her own stated as follows;

"As per participation of the accused persons, prosecution relied on the evidence 15 on the circumstantial evidence, which evidence in my view is not substantial to suggest conviction in respect of the 3 accused persons.

According to the evidence on record, I am of the opinion that someone else could have taken advantage of the situation of Nakato's threats to her father and killed the deceased."

The $2^{nd}$ assessor stated as follows;

"........ prosecution evidence destroys Alibi of the accused. The accused persons A1 and A3 had motive to kill because of the refusal to give them more land in additional to the kibanja, the deceased had given A1. Therefore, the prosecution

has proved that A1,A3 had from several threats in the village a motive to kill 25 Bukenya Edward, while A1, A3 fulfilled on 29th June, 2009.

5 tn mg opinion, I aduise court to acquit A2, Kamuli Peter and find A1' A3 guiltg as charged."

## Section 82 of the Trial on Indictment Act provides that;

"Wherethejudgedoesnotconformtotheopinionsofthemajorityofthe assessors, he or she shall state his or her reasons for departing from their opinions in his or her judgment."

In the instant case there were two assessors' the 1st assessor recommended an acquittal while the 2nd assessor recommended a conviction'

It.sclearfromtherecordthatthejudgeconvictedtheappellantsofmurder. However, no reason where advanced for departing from the l"t assessors opinion. Be that as it may, it's our considered opinion that there was no miscarriage of justice occasioned to the appellants in the circumstances'

On ground 4, the learned trial judge is faulted for sentencing the lst appellant to 26 years imprisonment and the 2nd appellant to 40 years imprisonment which sentences are unjustiliable and very harsh'

The appellants- submission on this ground was hinged on the variance in sentence of the appellants of 20 years and 40 years imprisonment which was notjustirledandthefailurebythelearnedtrialjudgetocorrectlyconsiderall themitigatingfactorsi.e. Thattheappellantswerefirsttimeoffenders,court considered the appellants- age at the time of sentencing instead of at the time of commission of the offence and the judge's non consideration of the period the appellants had spent on remand. ?o 25

5 This Court has the power to reduce a sentence imposed by the lower court when that is found to be the appropriate thing to do. This happens in circumstanceswherethesentenceimposedismanifestlyexcessiveorsolow as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle' See Klwalabge Bernard as tlgandd; Crimlnal Appeal No'143 of 2oOl 10

#### (unreported)

In sentencing the appellants' the learned trial judge stated as follows;

"Murder carries a maximum death sentence' Court has euen the following into considerations in passing the sentence' The acansed parsons are first Lime offenders. The acansed. persons killed their father/ grandfather uiolentlg euen afier hauing giuen them land, but theg didn't think it is enough' He euen utent to the extent of marrying a tuife for A3 and building him a house' 15

Thedeceasedafterreceiuingtlethreatsfromthemwasintheprocessofadding them more land, but they refused to attend the meeting he conuened' Bttt instead planned to kilt him uiolentlg. court also cause listed the follouing f'tcts in mitigation. The acansed persons are 39 and 22 years old respectiuelg ' Both of them haue goung depend'ants to look afier' That haue been on remand for 4 gears. In uiew of the aboue ciranmstances ' I sentence A1 to 26 gears 20

impisonment ond A3 t 4O gears'" 25

> Applying the above principles to the instant case' we have perused the record and studied the sentencing proceedings The trial Judge did consider the

5 mitigating factor that the appellants were first time offenders in her sentencing proceedings While considering the age of the appellants' she stated the 1"t appellant was aged 39 and the 2"d appellant 22 years' This fact wasalsoStatedbycounselfortheappellantsinmitigation. Whiletestifying the l"t appellant testified that she was 48 years and the 2"'l appellant stated 10 that he was 22 Years

The medical examination report Exh PE2 and PE3 state the age of the l't appellant as 35 years and 18 years for the 2"d appellant respectively'

In our view the reliance on the age of 39 years arrd 22 years did not occasloll amiscarriage of justice since the learned trial judge ably considered other mitigating factors.

Regarding the issue of non-consideration of the remand period' in Abelle Asuman versus Uganda, Supreme Court Criminal Appeal No'66 of 2O15 the Supreme Court appears to have revisited the decision in Rwabugande Moses (supra) when it held that;

- \*Where a sentencing Couri has clearlg demonstrated that it has taken into account the peiod spent on remand to the credit of the conuict' the sentence utould not be interfered' with bg the appellate Court onty because the sentencing Judge or justices used different words in their judgment or missed to state that theydeductedthepeiodspentonremand. Thesemaybeissuesofstylefor 20 - uhichalouerCourtuouldnotbefaulteduhenineffecttheCourthascomplieLl with th-e Constitutional obligation in Articte 23(8) of the Constitution" ' 25

5 WenotethatthetrialJudgeStatedthathehadconsideredwhathadbeert submitted for the appellant in mitigation and also the aggravating factors The Appellant's Counsel had clearly stated in mitigation that the appeilant had been on remand since April, 20 12' This meant that the trial Judge had' in our view,consideredtheremandperiodalthoughhedidnotexpresslystateit.u/e find that the requirements of Article 23(8) of the Constitution were met'

While determining that issue the iearned trial judge stated as follows;

"They haue been on remand for 4 gears' In uietlt of the aboue circumstance' I sentence A1 to 26 gears imprisonment and A3 to 40 years impisonment "

15 It's clear from the record that the learned trial judge was alive to and ably tock into consideration the period of four years the appellants had spent on remand. However, no reasons were given for sentencing the 1sr appellant to 26years and the 2nd appellant 40 years' The variance in the sentences was not explained yet both appellants were convicted of the same offence No individual acts or omissions in commission of the offence were advanced to 20 warrant the variance

## SectionlsgofthePenalCodeAct,Cap'l2Oprovidesthat;

" Ang person conuicted of murder may be sentenced to death'"

# Guideline 19 (2) of the Constitution (sentencing Guidelines for Courts of Judicaturel (Practice) Directions, 2O13 provides that;

"ln a case uhere a sentence of death is prescibed as the maximum sentence for an offence, the court shall' consider the aggrauating and 25

26 I

mitigating factors to sentencing range." deterrnine the sentence in accordance tuith the

Upon consideration of all the aggravating and mitigating factors on record and the period the lst appellant had spent on remand' and the fact that the appellant spearheaded the issuing of the threats to kiil her own father and having regard to the circumstances of this case' we find that the sentence of 26years meted out against the lst appellant was justified and we hereby maintain it.

Regarding the 2'a appellant's sentence, having regard to the circumstances of the case and the fact that no reasons were advanced for sentencing him to 40years imprisonment yet the l\*t appellant was sentenced to 26 years imprisonment, and being alive to the fact that he was a young adult at the time of commission of the offence, a first time offender' had spent 4 years on remand. We exercise our power under Section 11 of the Judicature Act to resentence the 2"d appellant afresh'

20 We find that the sentence of 20 years will meet the ends of justice'

It is hereby ordered;

The sentence of 26 years imprisonment for the 1'r appellant is maintained'

The 2nd appellant is sentenced to serve 20 years imprisonment to be served from the time he was convicted'

25 We so order, Dated at Masaka this. ... \\r'^ day of..... ...2022.

Cheborion Barishaki

#### Justice of APPeal

Stephen Musota

Justice of APPeal

Muzamiru Mutangula Kibeedi

Justice of APPeal