Naziwa v Uganda (Criminal Appeal 633 of 2014) [2025] UGCA 107 (24 April 2025)

<sup>5</sup> THE REPUBLIC OF UGANDA

#### IN THE COURT OF AP OF UGANDA AT Kamoala

### [Coram: Chrlstopher Gashirabake, Dr, Asa Mugenyl and John Mlke Muslsl, JJAI CRIMINAL 0633 0F 2014

[Appeal from the judgment of High Court at Mubende by Elizabeth Ibanda Nahamya J. in Criminal Case 122 of 2OLO delivered on 2 1"t October 20 13]

# NAZZIWA ANNET ::::::::::::::::::3:::::::::::::::::::::::::::: APPELLANT VERSUS

UGANDA :i:::::::r::::::::::::::::i::r::::::::::::::!3:::::::::!i:3:::::: RESPONDENT

#### JUDGMENT O THE COURT

# 1. INTRODUCTION

20 This is an appeal against the conviction and sentence ofthe appellant to 30 years of imprisonment for the offence of murder contrary to Sections 188 and 189 of the Penal Code by Elizabeth Ibanda Nahamya J. The appellant allegedly murdered one Brenda Nakubulwa, a baby of 3 months.

# 2. BACKGROUND

On lltr, October 2OO9, at Kawumulwa Parish, Kiyuni sub-county, Mubende district, it is alleged that the appellant went to the home of one Kasule Joseph and entered unnoticed. She carried away a 3 months old baby ca.lled Brenda Nakubulwa from the house where she had been left sleeping by the mother, one Siama Birabwa. The mother who noticed the baby's absence raised an alarm. The baby was discovered about 1.5 kilometers from the home, alive but it was alleged that part of her tongue and private parts were missing. The baby was rushed to Mubende referral hospital but she passed away on 12th October 2009.


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- 5 The police subsequently arrested the appellant while she was boarding a taxi to Kampala. She was detained at Mubende Police Station where she recorded a charge and caution statement. She raised a defence of alibi. She alleged that she had been tortured before recording the statement. The trial Judge believed the prosecution evidence and convicted the appellalt a1ld sentenced her to 30 years - 10 of imprisonment.

# 3. GROUNDS OF APPEAL

1. The learned Judge erred in law and fact when she relied on inconclusive and weak circumstantial evidence to convict the appellant.

- 15 - 2. That the learned trial Judge erred in law and fact when she acted on a wrong principle prior to passing an ambiguous, manifestly harsh and excessive sentence against the aPPellant.

# 20 Representation

At the hearing on 31"t march 2024, the appellant was represented by Mr' Henry Kunya on state brief while the respondent was represented by Ms. Happiness Ainebyona, Chief State Attorney.

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#### SUBMISSIONS OF PARTIES

### 4. APPELLANT'S SUBMISSIONS.

30 35 on ground 1, the counsel for the appellant submitted that the prosecution evidence as regards the appellant's participation in the murder hinged on circumstantial evidence since none of the prosecution witnesses saw the appellant kill the deceased. counsel argued that there were other co-existing circumstances which could weaken or destroy the inference of the appellant's guilt. He submitted that on the day of the murder, there were a number of people

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- <sup>5</sup> watching video in front of the home. Any one of them would have removed the baby. The counsel invited court to exercise its powers under Rule 30(1) of the Court of Appeal Rules while appraising evidence to draw an inference that any one of the people present may have murdered the deceased. He submitted that the father of the deceased who was at the scene when she was arrested never testified. The missing body parts were never found on the appellant. The appellant was never searched. He submitted that the time span of when the appellant requested PW4 Steven Bukenya to go and summon her brothers and when he came back was not given. The counsel for the appellant further submitted that the circumstantial evidence relied on to convict the appellant does not irresistibly point to her guilt. The appellant was a mere suspect. Counsel submitted that suspicion however strong it may be, is not sufficient to connect a person with criminal responsibility. He invited court to find that the 10 15 - On ground 2, the counsel for the appellant submitted that it is settled law that an appellate court will not interfere with a sentence imposed by the triai court which exercised its discretion while sentencing unless the discretion was such that the court acted on a wrong principle of law or ignored to consider an important matter or circumstances which ought to have been considered. See 20

evidence relied on was weak and inconclusive.

- Bernard Kiutalabge u Uganda, SCCA 143 of 2001. The appellant was a first time offender. She had been on remand for 4 years. She was 19 years at the time the offence was committed. She showed remorse and asked court to pass a lenient sentence. Though the Judge stated the "convict being a womari ought to know the usefulness and importance of a vagina and yet went ahead to cut a piece of 25 - the baby's vagina", PW5 testified that there were no missing body parts on the victim. The counsel submitted that the trial Judge did not take into account the period spent on remand. 30

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### 5 5. RESPONDENT'S SUBMISSION

The counsel for the respondent in reply, conceded that the trial Judge relied on circumstantial evidence to convict the appellant. He argued however that the courts can infer guilt of an accused person from circumstantial evidence. She cited Akbar Hussein Dodi u Uganda Criminal Appeal 3 of 2013 where the court

cited with approval Simmon Musoke u R, (1958) EA page 718 and held that

"ln a case depending exclusively upon circumstantial evidence, the Court must before deciding upon conviction, find exculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt."

The counsel submitted that the trial Judge relied on the evidence of PW4 who said that he saw the appellant standing at the corner of the house at about 8 to 9 pm. The trial Judge noted that PW4 seemed truthful, discerning from his demeanor. The Judge also relied on the evidence of PW3, Siama Birabwa, who testified that the deceased was sleeping in the house. The trial Judge also relied on the confession statement of the appellant which contained detailed information disclosing how she committed the murder. The counsel submitted that the appellant's confession corroborated the evidence of the prosecution witnesses. The appellant in her confession admitted to breaking the baby's necks 20

- and arms. She admitted to stealing the baby so as to get fertility medicine. The piece of evidence is corroborated by the post mortem report which showed that deceased suffered internal injuries. The counsel submitted that it was not necessary to call the father of the deceased as a witness. The evidence of the arrest of the appellant was brought out by other prosecution witnesses. The counsel submitted that the evidence adduced was sufficient to put the appellant at the scene of the crime and through her confession she admitted she committed 25 30 - the murder.

35 On ground 2, the counsel for the respondent submitted that the sentence imposed on the appellant was not harsh and excessive. She submitted that sentencing is at the discretion of the trial Judge. An appellate court can only 4lPage

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- <sup>5</sup> interfere where the sentence is manifestly excessive or low so as to amount to a miscarriage of justice. He cited Kiutalabge u Uganda (supra). Counsel submitted that the fact that the appellant was a first time offender was of no relevance. The appellant acted heartlessly by stealing a baby and killing it. Counsel cited Turyahabute Ezra and 12 others u Ugando SCCA 50 of 2014 where it was stated that "the manner in which the appellants committed such a heinous crime would render the fact that they were hrst time offenders of little relevancy." ln Munga Godfreg u Uganda, SCCA 4 id 2011 it was cited with approval Wandubire Clement u Uganda, SCCA 41 of 2Ol7 by the Supreme Court that "being a first time offender was not enough to negate the death sentence.' The counsel submitted 10 - that the trial Judge considered the mitigating factors before arriving at the appropriate sentence of 30 years. 15

The counsel for the respondent submitted that the sentence was not ambiguous. She submitted that the requirement to mathematically reduce the period spent

- 20 on remand commenced wit}l Rwabugande Moses u Uganda, SCCA 25 of 2014 which was decided on 3'd March 2017. Counsel cited Kizito Senkula u Uganda, SCCA 24 of 2001 where it was stated that "Taking into account does not mean an arithmetical deduction." He a-lso cited Bgamukamo Herbert u Uganda, SCCA 2l of 2Ol4 where the Supreme Court stated that the Ruabugande case which - was decided in March 2017 was inapplicable to the case where the accused was convicted in December 2016. Counsel cited l[ashimolo Paul Kibolo u Uganda, SCCA 46 of 2Ol7 where the Court stated that: 25

uthe decision (Rwabugandel was delivered on 3'a March 2Ol7 . ln accordance with the principie of precedence, this court and the courts below have to follow the position of the law from the date hence forth."

The respondent also cited Sebunga Robert and another u Ugandq SCCA 58 of 2016 where it was held that:

"Rwabugande does not have a retrospective effect on sentences which were passed before it by courts 'taking into account the period (a convict) spends in laMul custody."

Counsel prayed that this court finds the sentence unambiguous.

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#### DETERMINATION

- 26 The appellant was charged with murder of one Brenda Nakubulwa on 11th October 2009 contrary to Sections 188 and 189 of the Penal Code. Sections 188 - 10 of the Penal Code states that "Any person who with malice aforethought causes the death of another person by an unlawful act or omission commits murder." The ingredients for murders are: - 1) There was a death ofa human being, - 2) The death was caused by the accused by some unlawful act or omission, - 15 3) The accused must have participated, - 4) The accused must have acted with malice aforethought.

The above was stated in Maztka and another u Uganda, Criminal Appeal 129 of 2O2O a:rd Criminal Appeal 39 of 2O2O (Consolidatedl, I2O23l UGCA 239, (22"4 August 2023). Under Section 189 of the Penal Code, "Any person convicted of 20 murder shall be sentenced to death."

It is not in dispute that the victim Brenda Nakubulwa died. A post mortem report exhibit 1, was tendered in court which showed that she obtained internal injuries with a dislocation. The cause of death was asphyxia and pain shock. The body

25 of the deceased was identifred by Joseph Kasule, the father. The prosecution witnesses testihed that the deceased died when she was taken to hospital.

Section 91 of the Penal Code defines 'malice aforethought' as:

- "a) an intention to cause the death of any person, whether such person is the person actually killed or not or; - b) Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused." - 35 The trial court stated that malice aforethought being the state of mind of the accused can be inferred from the facts. The post mortem showed that the baby 6lPage

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died of asphyxia and pain shock. Whoever inflicted the pain and asphyxia on the baby had malice aforethought as it caused its death.

The prosecution did not call any witness who saw the appellant kill the deceased. The trial Judge relied on circumstantial evidence to put the appellant at the scene of the crime and which showed that she committed the murder. The trial Judge relied on TLtmuheinte u Uganda, (1967) EA 328, which delined 'circumstantial evidence' as the "euidence of surrounding ciratmstances uhich bg intensified examination, is capable of prouing a proposition uith tlLe accuracy of mathem.atics." The trial Judge noted that in order for circumstantial evidence to constitute the sole basis for conviction of an accused person, it must be such that it creates moral certainty that the accused is guilty of the offence charged. \n Bgaruhanga Fodori u Ugandq SCCA 18 ol 20 it was held that: 10 15

"lt is trite 1aw that where the prosecution case depends solely on circumstantial evidence, the court must before deciding upon a conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt. See also Simon Mus oke u R, [1958] EA 715, Teper u R, (2) AC 480 TindisuLihura Mbahe u Ugando, SCCA 9 of 1987 , Sharma Kooki Kumar u Uganda, SCCA 44 of 2000. More still, the court ought to bear in mind the standard of proof in criminal case, beyond reasonable d,oubt Miller u Minister of Pensions, 11947l. 2 ALLD. R. 372"

Therefore, we have to find whether the exculpatory facts are incompatible with the innocence of the accused and incapable of any explanation upon any other reasonable hypothesis other than that of guilt.

The evidence which the court relied on included that of PW4 Steven Bukenya who put the appellant at the scene of the crime at around 8 to 9 pm. The appellant while at the home of the deceased asked PW4 to go and call her brothers. When PW4 returned the appellant was nowhere to be seen. However, the evidence that pinned the appellant to the murder was the charge and caution

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- <sup>5</sup> statement she made. She admitted to killing the deceased in order to use her parts for ritual purposes in order to improve her fertility. In the statement, the appellant states that she wanted a child to sacrifice. One Kanzaalu asked her to get a piece of a body of a young child so as to get medicine for fertility. Though the mother of the deceased and the medical report show that no body parts were - missing, they both admit that the deceased had injuries and was mutilated. I do not understand how the private parts of a female can be cut out. By their nature they can only be mutilated and pieces removed. In the caution statement the appellant states that she cut pieces from the tongue and the private part. She put them in a handkerchief. The evidence shows that they were mutilated. Therefore, the appellant's submission that the private parts and other body parts 10 15 - were not missing is misconceived.

The counsel for the appellant submitted that the appellant was tortured. From the evidence of PWS William Kirya a police officer, the appellant was brought into his ofhce by SPC Florence Nabawanuka. She was not beaten. She had no gun. The suspect was not handcuffed. He stated on the environment in the room. There were no arms or dangerous weapons. There were seats. The officer was seated on a chair behind a table. He talked freely with the appellant. He used Luganda which was understood by the appellant. We do not see any evidence of torture. 20 25

Though the appellant raised a defence of alibi, she did not call any witness to substantiate it.

- Taking all the above into consideration, the trial Judge was justified to rely on the charge and caution statement which was corroborated by the post mortem report and the evidence of PW4 to convict the appellant. 30 - The appellant contended that the sentence was harsh and excessive. In Kiualabye Bernard u Uganda, SCCA 143 of 2OO1 it was held that it is trite law 35

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<sup>5</sup> that the appellate court is not to interfere with the sentence imposed by a trial court which has exercised its discretion unless the discretion is such that it results in the sentence imposed being manifestly excessive or low 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 <sup>10</sup> sentence or where the sentence is imposed on wrong principle.

The need to subtract the period spent on remand from the sentence of an accused is provided for in the Constitution. Article 23(8) of the Constitution of Uganda provides that;

15 "Where a person is convicted and sentenced to a term of imprisonment for arr offence, any period he or she spends in lawful custody in respect of the offence before completion of his or her trial shall be taken into account in imposing the term of imprisonment."

The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions also provide for subtracting of period in remand. Guideline 15 states 20

#### '15. Remand perlod to be taken lnto account.

- (1) The court shall take into account any period spent on remand in determining an appropriate sentence. - (2) The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been tal<en into account."

ln Ru-tabugande u Uganda, SCCA 25 of 2Ol4 the court stated;

"lt is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision, consideration of the remand period should therefore necessarily mean reducing as subtracting that period from the first sentence."

Though the respondent submitted that the Rutabugande case was decided in 2Ol7, the need to subtract the period spent on remand is provided for in the Constitution promulgated in 1995. Therefore, if the trial court did not consider the period the appellant spent on remand before arriving at the sentence, then the sentence is unconstitutional and illegal.


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The appellant contended that the trial Judge imposed the sentence without $\mathsf{S}$ subtracting the period the appellant spent on remand thereby occasioning a miscarriage of justice. The court stated:

> "In my view, despite her age, a deterrent sentence is necessary. In this case, having taken into account the 4 years spent on remand, I hereby sentence you, Annette Nazziwa, to 30 (thirty) years imprisonment."

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The sentence appears unambiguous. It is clear that the court stated that the period spent on remand was taken in account before sentencing. Guideline 15 requires the trial Judge to deduct the period spent on remand, which she seems to have deducted before imposing the sentence.

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The appellant will continue to serve the sentence of 30 years. The period spent on remand of 4 years was taken into account. Therefore, he will serve a sentence of 30 years from the date of the sentence by the trial court. We so order.

Dated at Kampala this ... Duiday .................................... 20

**Christopher Gashirabake**

**Justice of Appeal**

Dr. Asa Mugenyi

**Justice of Appeal**

**Justice of Appeal**

Mike Musis

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