Nyakaishiki and 3 Others v Uganda (Criminal Appeal No. 0199 of 2015) [2024] UGCA 355 (9 August 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

## CRIMINAL APPEAL NO. 0199 OF 2015

(Arising out of the Judgment and orders of Her Lordship Justice Flavia Senoga *Anglin at Mbarara in Criminal Session No. 008 of 2011)*

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

**VERSUS**

# **UGANDA :::::::::::::::::::::::::::::::::::**

# CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHIKA, JA

#### **JUDGMENT OF COURT**

The Appellants were indicted and convicted of the offence of Murder contrary to sections 188 and 189 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

1,, 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 relying 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 8th of June 2010, the deceased, the 1"t Appellant and a one T\rkamuhebwa were home asleep. At around 2 am, T\-rkamuhebwa 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 conhned by the other assailant. The two assailants tied Tukamuhebwa and AI \rith 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:O0am, T\rkamuhebwa, whose arms 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 2"a 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 lst, 3rd and 4th Appellants. He was then tal<en to Ntungamo Police Station and the other Appellants were also arrested and accordingly charged with murder.

#### Representation

At the hearing of this appeal, Ms. Macklean Kemigisha on state brief 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 1 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 1"t, 2"d and 3.d Appellants, which were repudiated during tria-I. 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 l"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 w'ithin a trial before

admitting the charge and caution statements and found tha 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 3,4 Appellant in his charge and caution also corroborated the confession statements of the 1", and 2".1 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 45-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 2016.

# 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 own conclusion on the matter. This duty is enshrined in Rule 3O(1) (a) of the Rules of this Court.

3O. 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 draut inferences offact; and

(b) inits discretion, for suJficientreason, take additional euidence or direct tlnt additional euidence be taken by the trial court or bg a commtsstoner.

The cases of Pandya v R [195fl EA 336 and Kifamunte Henry v Uganda SCCA No. 1O of 1997 have also succinctly re-stated this principle. We have borne these principles in mind in resolving this appeal.

# Consideration of the Appeal

# Grounds Land,2

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

The charge and caution statement of the 1"t Appellant was recorded byD/AIP Muhereza Charles, PW3 and in his testimony, stated that the 1"1 Appellant used her son Atwongreirwe (the 2"d Appellant) to plan and kill her husband. That she rang her daughter called Sharon to a-rrange Shs. 1 m/= to solve her own problems at home. She sent A'2 to get the money, which he picked and on the night ot03/6/lO. The plan was accomplished by the 2"d Appellant organizing some assailants who found the 1"t Appellant with her husband on the bed, tied the husband's hands and legs who was then taken to a different room and killed. PW3 recorded the statement in vernacular and read

PaBe 6 of 14

it fully back to her and she signed it and he countersigned it. PW3 a-lso wrote it in English and she signed and he countersigned at Ntungamo Police Station.

IP Muhumuza David, PW5 recorded the charge and caution statement of the 2"d Appellant giving a similar narration to that of the 1st Appellant.

IP Mpabaisi Johnson, PW6 recorded the charge and caution statement of the 3.a Appellant on 1O/06 l2OlO 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 l"t and 2"d Appellants respectively. He stated in his statement that on the night of the murder, t-he 3.d and 4th Appellants went to the deceased's home at about 1lpm, met the l"t and 2"d Appellants, went into the house, grabbed the deceased, tied his neck, hands and chopped off his genitals and gave them to the 1"t Appellant to perform rituals. The 2"d Appellant tied up the house maid and they left, leaving the l"t Appellant at the scene.

At the hearing, all the Appellants 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 by the Court of Appeal for East Africa, in Tuwamoi vs. Uganda 1967 EA 84 as follows; "TTte present ruIe th.en as applied in East Afica 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 uthich ho.s been retracted in the absence of corroboration in some mateial particular, but that the court might do so t/ il is fullg satisfi"ed in the circumstances of the case that the confession must be true. "

The position of the law as set out above has not changed. Before a tria-l 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',1 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 statemates 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 trial. 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"t, !n<l srtd Jra Appellants and find that the narration of the events that culminated in 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", 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", and 2"a Appellants was that the assailant hit the door with a big stone, the evidence of PW1 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 the Evidence Act provides that the Court may take the confessions into consideration against the makers and other accused persons. The section provides that " at a trial of more than one personfor the same offence, if a confessionis made bg one of them affecting him and others, court mag take into consideration such confession against him and others",

Having found that the confessions of the 1"t, 2"a 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'a 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 I 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 45-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 Rwabugande Iyloses Vs Uganda Crlmlnal Appeal No. 25 of 2O14 and Attlcle 23 (8) of the Constltutlon of the Republic ofUganda.

While sentencing the appellant, the trial Judge stated:

"Each of the said persorls is sentenced to Imprisonment for 45 Aears. The offence is a uery senous one carried maximum sentence of death. The manner in which tLe deceased was killed it utas uery tenifuing.

Euen his genitals were cut off for purposes of performing ituals. The deceased uas killed ouer fomily wrangles ouer property. These are disputed that accused had been amicablg settled and the conuicts argue not to haue taken tle law in their hands.

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

While the period spent on remand has been taken into account court finds that this is a cime that calls for a tough punishment for all who taere inuolued in it.

The 45 gears will sulfice 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, any peiod he or sh.e spends inlawful custodg in respect of the offence before the completion of his or her tial shall be taken into account inimposinq the term of imprisonment." [Emphasis added]

In the Rurabugande ccse (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 period spent on remand bg a court is necessarilg arithmetical. ?his is because the peiod is knoun uith certaintg and precision; consideration of the remand peiod shouldtherefore necessailg meanreducing or subtracting that period from the final sentence. That peiod spent in lawful custodg pior to the tial must be specifically credited to an accused."

Subsequently the Supreme Court clarified the meaning of the expression "take into account" in Abelle Asuman Vs Uganda, Supreme Court Criminal Appeal No.66 of 2o16\_(delivered on 19th April2O18) thus:

"What is material in [the Rwabugande] decision is that the peiod spent in lawful custodg prior to the tial and sentencing of <sup>a</sup>

conuict must be taken into account and according to the case of Rutabugonde that remand peiod should be credited to a conuict uhen he is sentenced to a term of impisonment. This Court used tLrc uords to deduct and in an aithmetical way as a guide for the sentencing Courts but those metaphors are not deiued from the Constittttion.

Wltere a sentencinq Court has clearlu demonstrated that it has taken into accounLthcpeiod spent on remand to the credit of the conuict, the sentence would not be interfered with bu the aooellate Court onlu because the sentenci nq Judqe or Justices used different words in their iudqment or missed to state that theu deducted the oeiod spent on remand These may be issues of stgle for uhich a lower Court utould not be faulted uhen in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution.' [Emplnsis 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 not 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:

" 1 1. Court of Appeal to haue powers of the court of oiginal juisdiction.

For the purpose of heaing and determining an appeal, the Court of Appeal shall haue all the powers, authoritg and juisdiction uested under anA witten law in the court from the exercise of the oiginal juisdiction of uhichthe appeal oiginallg emanated."

In the exercise of the above mandate, we consider that the Appellants were hrst offenders that had spent 5 yea-rs on remand. The offence was however committed in a gruesome manner 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 alive to the principle of uniformity and consistency in sentencing which we are required to comply with. See: Sentencing Principle No.6(cf of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2Ol3 - Legal Notice No.8 of 2013, and Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No.27 of 2O15.

In Bakubuye Muzamiru & another Vs Uganda, Criminal Appeal No. 56 of 2015, where the Supreme Court considered a 4Oyear

PaBe 13 of 14

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. The 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. 01k fuAl. Delivered and dated this day of 2024.

RICHARD BUTEERA Deputy Chief Justice

CHRISTOPHER GASHIRABAKE Justice ofAppeal

osc KIHIKA Justice ofAre\'

Page 14 of 14