Nyakaishiki & 3 Others v Uganda (Criminal Appeal 199 of 2015) [2024] UGCA 210 (9 August 2024)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

# CRIMINAL APPEAL NO. 0199 OF 2015

(Aising out of the Judgment and orders of Her Lordship Justice Flauia Senoga Anglin at Mbarara in Criminal Session No. 008 of 201 1)

- 1. NYAXAISHIKI PROVIA - 2. ATWONGEIRE RONALD :::::::::::::::::: APPELLANT - 3. MUJUNI JOHNSON alias KIGUDE - 4. NJUNWOHA JOSEPHAT alias FATI

VERSUS

UGANDA ::::::::: :::::::::: : :::: ::::::: :: RESPONDENT

#### CORAM: HON. JUSTICE RICHARD BUTEERA, DC., HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. WSTICE OSCAR KIHII(4, JA

#### JUDGMENT OF COURT

The Appellants were indicted and convicted of the offence of Murder contrary to sections 1 88 and 1 89 of the Penal Code Act and sentenced to 45 years' imprisonment.

The Appellants were dissatisfied with the decision of the trial court and filed this appeal on the following grounds;

1. The learned trial Judge erred in law and fact when she relied upon the repudiated and retracted confessions of the Appellants

I, 2 and 3 to convict all the Appellants thereby occasioning a miscarriage of justice.

- 2. The learned trial Judge erred in law and fact for re\ring on hearsay evidence, inconsistencies, falsehoods and gaps in the prosecution's case and wrongly convicted the appellants that there were common intentions to murder the deceased in the absence of an eye witness. - 3. The sentence the learned trial Judge imposed on the Appellants was harsh, manifestly excessive and that it was ambiguous/ illegal in as much as it was not clear as to whether the period spent on remand had been deducted.

#### Background

On the Sth of June 20 1O, the deceased, the l"t Appellant and a one T\rkamuhebwa were home asleep. At around 2 am, Tukamuhebwa heard noises in the house. Immediately, two men entered her bedroom. They ordered her to dress up and one ofthem dragged her and led her to the bedroom where AI and the deceased had been confined by the other assailant. The two assailants tied T\.rkamuhebwa ald AI with ropes and ordered them to lie down. The assailants then demanded that the deceased gives them money. He gave them 2O,OOO/= but they still demanded for more. They then dragged Al and T\rkamuhebwa to the other room and returned to the room where the deceased had been left. They killed him and immediately fled from the scene.

At 6:0Oam, Tukamuhebwa, whose a-rms were still tied with ropes, went to the home of a one Byabagambi and revealed to him what had happened. Byabagambi rushed to the deceased's home and found him dead. He had bruises around his neck, a deep cut wound on the right fore arm and his genitals had been cut off. AI then revealed to the residents that assailants had attacked her family and killed her husband. She also stated that they used a big stone to hit the door and gain entry.

However, police investigations indicated that there was no sign of forcible entry as the door was intact. The 2na Appellant, the deceased's son, immediately went into hiding, which prompted the residents to search for him. He was found at Rwoho Trading Centre and upon seeing the residents, he ran away, heading to Rwoho forest, where he was pursued and arrested. Upon arrest, he admitted to having committed the offence and implicated the 1st, 3rd and 4th Appellants. He was then taken to Ntungamo Police Station and the other Appellants were also arrested and accordingly charged with murder.

#### Representation

At the hearing of this appeal, Ms. Madean Kemigisha appeared for the Appellant while Mr. Sam Oola: Senior Assistant DPP appeared for the Respondent. Both parties filed written submissions and adopted them as their legal arguments.

#### Appellant's submissions

Counsel argued grounds I and 2 together and submitted that in murder cases, participation of an accused person is paramount and prosecution is required to prove beyond reasonable doubt that the Appellants committed the said murder. Counsel further submitted that the evidence on record was that the deceased was found dead in his bedroom and the Appellants were only suspected as killers. Counsel further argued that the only evidence on record implicating the Appellants was the charge and confession statements of the lst, 2"d and 3.d Appellants, which were repudiated during trial. That the Appellants were found guilty solely on the strength of uncorroborated confession statements which were not voluntarily made.

Counsel further submitted that Byabagambi Yorokam, PW1 and PW8 were determined to incriminate the 1"t and 2"d Appellants because of greed to take over the deceased's property.

With regard to ground 3, counsel submitted that the sentence imposed by the learned trial Judge of 45 years' imprisonment was harsh and excessive in the circumstances of the case. That the learned trial Judge did not consider the mitigating factors of the case and in addition, did not indicate whether the period spent on remand had been deducted from the sentence imposed.

#### Respondents submissions

In reply, counsel submitted that it is clear from the record of proceedings that the trial Judge held a trial within a trial before

admitting the charge and caution statements and found tlq they were voluntarily made. The l"t Appellant in her charge and caution implicated the 2"d Appellant whom he convinced to hire assailants to kill the deceased. This was corroborated by the 2"d Appellant who admitted that the 1"t Appellant approached him to kill the deceased and he approached the 3'd Appellant to join the mission. The 3'd Appellant in his charge and caution also corroborated the confession statements of the l"t and 2nd Appellants and gave a detailed account of how the plan was hatched to kill the deceased.

With regard to sentence, counsel submitted that the learned trial Judge took into account the gruesome manner in which the deceased was killed and rightly concluded that the 4S-year imprisonment sentence was appropriate in this case. Counsel submitted that the period that the Appellants had spent on remand were considered by the learned trial Judge as per the decision in Abelle Asuman Vs Uganda Criminal Appeal No. 66 of 2OL6.

# Dutv of a first Appellate Court

This being a first appellate court the law enjoins it to review and reevaluate the evidence as a whole, closely scrutinize it, draw its own inferences, and come to its conclusion on the matter. This duty is recognized in Rule 3()(11 (a) of the Rules of this Court.

30. Power to reappraise euidence and to take additional euidence.

(1) On ang appeal from a decision of the High Court acting in the exercise of its original juisdiction, the court maA-

(a) reappraise the euidence and dranu inferences offact; and

(b) inits discretion, for sufficient reason, take additional euidence or direct that additional euidence be taken by the tial court or bg a commtssloner.

The cases of Pandya v R [195fl EA 336 and Kifamunte Henry v Uganda SCCA No. 10 of L997 have also succincfly re-stated this principle. We have borne these principles in mind in resolving this appea-l.

# Consideration of the Appeal

# Grounds Lrnd.2

The Appellants' fag[ the decision of the trial Judge for having convicted them while relying solely on retracted confessions.

The charge and caution statement of the 1", Appellant was recorded byD/AlP Muhereza Charles, PW3 and in his testimony, he stated that the 1"t Appellant stated that she used her son Atwongreirwe (the 2"d Appellant) to plan and kill her husband. That she rang her daughter ca-lled Sharon to arrange Shs. I rn/= to solve her own problems at home. She sent A,2 to get the money, which he picked and on the night of 08 16/10 the plan was accomplished by the 2"d Appellant organizing some assailants who found the 1"t Appellant with her husband on the bed, and tied the husband and herself, tied hands and legs and taken to a different room and the husband killed. PW3

recorded the statement in vernacular and read it fully back to her and she signed it and he countersigned it. PW3 also wrote it in English and she signed and he countersigned at Ntungamo Police Station.

IP MuhumuzaDavid PW5 recorded the charge and caution statement of the 2nd Appellant giving a similar narration to that of the 1", Appellant.

IP Mpabaisi Johnson, PW6 recorded the charge and caution statement of the 3.d Appellant on 10.06.1O and followed the procedure in recording the statement. The 3.a Appellant also admitted having participated in the murder of the deceased after being approached by both the 2"d and 1"t Appellants respectively. He stated in his statement that on the night of the murder, the 3'a and 4th Appellants went to the deceased's home at about 1lpm, met the 1"t and 2"a Appellants, went into the house, grabbed the deceased, tied his neck, hands and chopped off his genitals and gave them to the l.t Appellant to perform rituals. The 2"a Appellant tied up the house maid and they left leaving the 1"t Appellant at the scene.

At the hearing, the Appellants all retracted their confessions and the trial Judge held a trial within a trial to establish whether the confessions had been made voluntarily.

The law regarding retracted and repudiated confessions was well set out in by the Court of Appeal for East Africa, the Predecessor to our Supreme Court in Tuwamoi vs. Uganda 1967 EA 84 as follows;

"The present rule then as applied in East Africa in regard to a retracted confession, is that as a matter of practice or prudence the trial court should direct itself that it is dangerous to act upon a statement uhich has been retracted in the absence of corroboration in some mateial particular, but that the court might do so z/ it is fullg satisfi.ed in the circumstances of the case that the confession must be true. "

The position of the law as set out by the above has not changed. Before a trial judge admits in evidence any confession that has not been admitted by the maker, he or she must be satisfied that the confession had been voluntarily made by that accused person.

In this appeal before us, the 1st, 2nd and 3.d Appellants contested their respective confessions contending that they had not been obtained voluntarily and that they were made to sign documents they didn't know. They further alleged that the respective officers that recorded their charge and caution stalemates asked them for money to release them but when they failed to avail the money, statements were made allegedly confessing to the offence.

The trial judge held a trial within a tria-l. In her ruling, she found that the confessions had been voluntarily made and that the details given could only have been known to someone who participated in the murder of the deceased.

We have carefully read the confessions made by the 1"1, lncl 61d Jrrl Appellants and hnd that the narration of the events that led to the murder of the deceased was so corroborative of each other that these statements could only have been made by persons that participated in the murder. In addition to the confessions, the evidence of the 1"t and 2"d Appellants that on the night of the attack, the door to the house was hit with a big stone and forced open left a huge gap in the defence case.

Whereas the evidence of the 1"t and 2"d Appellants was that the assailant hit the door with a big stone, the evidence of PWl and Ndyalia Jackson PW7 indicated that the bolts on the door were intact and there were no marks on the door to show that it had been hit with a big stone.

Section 27 of tbe Evidence Act provides that the Court may take the confessions into consideration against the makers and other accused persons. The section provides that " a/ a tial of more than one personfor the same offence, if a confessionis made bg one of them affecting him and otLrcrs, court may take into consideration such confession against him and others",

Having found that the confessions of the 1"t, 2"d and 3.d Appellants were made voluntarily, court can take them into consideration against the makers themselves and against the 4th Appellant, who was implicated by the 3'd Appellant as having participated in the murder of the deceased.

For the reasons given above, we find that the Appellants jointly participated in the murder of the deceased. Grounds 1 and 2 of the appeal accordingly fail.

## Ground 3

## Review of sentence

The Appellants fault the learned trial Judge for having sentenced them to a 4S-year imprisonment sentence which was harsh and excessive. In addition, the Appellants argue that the period spent on remand was not deducted in accordance with the Supreme Court decision in Ruabugqnde Moses Vs Uganda Cri,m;lnal Appeal No. 25 of 20 14 and Artlcle 23 (8) of tle Constltutlon of the Republlc ofUganda.

While sentencing the appellant, the trial Judge stated:

"Each of the said persons is sentenced to Impisonment for 45 Aears. The offence is a uery serious one carried maximum sentence of death. The manner in which the deceased was killed it was uery terrifying.

Duen his genitals were qfi off for purposes of performing ituals. The deceased was killed ouer family urangles ouer properTA. These are disputed that accused had been amicably settled and the convicts argue not to haue taken the law in tlrcir h-ands.

A message had to be sent out that for disputes argue to be setlled in court in an amicable manner. All of this planning went into the court and moneA also exchanged hands.

While the period spent on remand has been taken into account courl finds that this is a cime that calls for a tough punkhment for all uho ruere inuolued in it.

The 45 gears will suffice to meet the ends of Justice."

Article 23 (8) of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms:

"Where a person is conuicted and sentenced to a term of impisonment for an offence, ang period he or she spends in lawful custody in respect of the offence before the completion of his or her tial shall be taken into accountinimposinq the term of impisonment." IEmphasis added]

In the Ruabugande cose (supra), the expression"takeinto account" the remand period was interpreted by the Supreme Court to entail an arithmetical deduction. The court held as follows:

"It is our uiew that the taking into account of the peiod spent on remand by a court is necessarilg arithmetical. This is because tlre peiod is knoun with certaintg and precision; consideration of the remand period should therefore necessailg mean reducing or subtracting that peiod from the final sentence. That peiod spent in lawful custody prior to the tial must be specificallg credited to an acansed."

Subsequently the Supreme Court clarified the meaning of the expression "take into account" in the case of Abelle Asuman Vs Uganda, Supreme Court Criminal Appeal No.66 of 2O16-(delivered on 19th April 2018) thus:

"What is material in [the Ruabugande] decision is that the peiod spent in lawful anstodg pior to the tial and sentencing of <sup>a</sup> conuict must be taken into account and according to the case of Rwabugonde that remand peiod should be credited to a conuict uhen he is sentenced to a terrn of imprisonment. This Court used the utords to deduct and in an arithmetical way as a guide for the sentencing Courts but those metaphors are not deiued from the Constitution.

Wherc a sentencinq Court has clearlu demonstrated that it has taken into account the peiod spent on remand to the credit of the conuict, the sentence would not be interfered with bu the appeLlate Court onlLl because the sentencinq Judqe or Justices used different words in their iudqment or missed to state that theu deducted the peiod spent on remand. These mag be issues of stgle for uhich a loraer Court would not be faulted uhen in effect the Court has complied uith the Constitutional obligation in Article 23(8) of the Constitution." [Emphasis added]

From the above, it is clear that the guiding question in the resolution of this appeal is whether, from the style used by the trial Court, it clearly demonstrated that it has taken into the period spent by the appellant on remand to his credit.

We think NOT. The sentencing order of the learned trial Judge was made in passing and was clear whether the 5 years the Appellants had spent on remand had been deducted from the sentence passed. In addition, the sentencing order of the trial Judge did not consider the mitigating factors of the case. The trial Judge considered the aggravating factors in isolation of the mitigating factors of the case.

We accordingly allow the appeal against sentence and set aside the sentence of the trial Court.

## Re-sentencing

Section 11 of the Judicature Act vests this court with the same powers as the trial Court in the following terms:

" 11. Court of Appeal to luzue poluers of the court of oiginal juisdiction.

For the purpose of hearing and determining an appeal, the Court of Appeal shall haue all the pouers, authority and juisdiction uested under any witten law in the court from the exercise of the original jurisdiction of which tle appeal oiginallg emanated."

In the exercise of the above mandate, we consider that the Appellants were first offenders that had spent 5 yea-rs on remand. The offence was however committed in a gruesome marrner with the deceased's genitals having been cut off for purposes of performing rituals and as such, the Appellants should be given a deterrent sentence.

We are a-lso a-live to the principle of uniformity arrd consistency in sentencing which we are required to comply with. See: Sentencing

Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2Ol3 - Legal Notice No.8 of 2OL3, and Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No. 27 of 2O15.

In Bakubuye Muzamiru & another Vs Uganda, Criminal Appeal No. 56 of 2O15, where the Supreme Court considered a 4Oyear sentence for the offence of murder to be neither harsh nor excessive and conhrmed it. In Florence Abbo vs Uganda, Criminal Appeal No. 168 of 2O13 this Court upheld a 4Oyear sentence for the offence of murder.

## Decision

- 1. The appeal against conviction is dismissed. - 2. Thre appeal against sentence is allowed. - 3. We consider a sentence of 40 years' imprisonment appropriate in this case for each of the Appellants. We deduct the 5 years spent on remand and sentence each of the Appellants to 35 years' imprisonment to be served from the date of conviction which was 08.06.15.

We so order.

Delivered and dated this day of ...... ,\1'. 2024.

RICHARD BUTEERA Deputy Chief Justice

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CHRISTOPHER GASHIRABAKE **Justice of Appeal**

**.......** . . . . . . . .

OSCAR JOHN KIHIKA<br>Justice of Appeal

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