Odong v Uganda (Criminal Appeal No. 290 of 2019) [2023] UGCA 72 (1 March 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBALE CRIMINAL APPEAL NO.290 OF 2019 (CORAM: Obura, Bamugemereire & Madrama, JA)

$\mathsf{S}$

$10$

ODONG DAVID OGEN ....................................

**VERSUS**

UGANDA. .................................. (Appeal from the Judgment of Stephen Musota J (as he then was) dated 23<sup>rd</sup> November 2010 in Criminal Session Case No. 40 of 2010 holden at Tororo High Court)

# JUDGMENT OF THE COURT

The appellant was indicted for the offence of Murder contrary to sections 188 and 189 of the Penal Code Act. It was alleged that the appellant on the 13<sup>th</sup> day 15 of July 2008 at Pakong Plain Zone in Tororo district, with malice aforethought unlawfully caused the death of Rosemary Atyang Akello.

## Background

The brief facts leading to this appeal are that on the 13<sup>th</sup> day of July 2008 the accused and deceased, who was his girlfriend, went to attend funeral rights and 20 the two stayed at the funeral drinking till 8:00 pm when they left together. It was alleged that at around 10:00 pm a one Annet Owora heard an alarm from a woman saying "you are killing me"; whereupon she called and informed her father in law; Yovan Owino who got up and ran to the scene which was near his home. At the scene Owino noticed someone bending and when he raised his 25 head up, by the help of the moonlight, Owino recognised him as the appellant. It is further alleged that the appellant immediately made off into the cassava plantation and was arrested sometime after when police heard that he was back in the village. The appellant was indicted, tried and was convicted and sentenced to life imprisonment. 30

Dissatisfied, the appellant appealed against both conviction and sentence.

### Grounds o[ A cal

- L That thc learned trial Judge erred in law and fact whcn hc held that thc appellant had becn propcrly identified. - 2. That the sentence given by the learned trial Judge was illegal, manifestly excessive, harsh and unfair in thc circumstances.

#### Represen tation

At the hearing of the appeal the Appellant was represented by Mr. Geoffrey Nappa on State Brief while Mr. Sam Oola, an Assistant Director of Public Prosecutions represented the Respondent.

Both counsel filed their written submissions, which we have considered in this judgment. 10

#### The Appellant's Submissions

On Ground No.l concerning identification of the assailant; it was counsel's submission that the circumstances leading to the proper identification of the assailant were unfavourable leadlng to a wrongful conviction. Counsel for the appellant submitted that rhe rial Judge erred by believing the evidence o[ PW2. He submitted that the witness could not have properly idenrified the assailant in the dark cassava garden while the witness was l0 metres away. Equally, counsel invited this court to find that the trial Judge erred when he relied on circumstantial evidence of the appellant's disappearance from the village. He asked this court ro allow rhis ground. 15 20

On Ground No. 2, counsel for the appellant submitted that the appellant was sentenced to life imprisonment, a sentence that was harsh. He submitted that the appellant was a young person aged 27 years at the time he commirted the offence, and he was a first offender. Counsel contended that the purpose of <sup>a</sup> custodial sentence is ro reform the convict and therefore a shorter sentence would have served the purpose of rehabilitating him.

lr was counsel's submission that courts have overtime maintained rhe principle of conslstency in sentencing. He cited Aharikundira Yustina v Uganda SCCA No. 27 of 2015 to that effect. Counsel referred to Rwabugande v Uganda SCCA No. 25 of 2Ol4 where the Supreme Court set aside a sentence o[ j5 years and sentenced the appellant to 2l years for the offence of murder.

Counsel submitted that this court should take inro account the period the appellant had spent on remand and deduct the same from the sen[ence to be given by the court.

### The Respondent's Submissions

In reply to Ground No. l, counsel for the respondent invited rhis court to find that the trial Judge properly analysed the circumstantial evidence as adduced by prosecution and correctly found that it pointed to the appellant as the person who unlawfully and fatally wounded thc victim causing her death. Counsel submitted that the conditions were favourable for correct identification that is; the distance of l0 metres; the moonlight and that PW2 chased the appellant in an open field. It was counsel's contention that the appellant was positively identified at the scene. 10 15

Further, counsel contendcd that the trial Judge was mindful o[ the need for corroboration of the evidence of a single eye witness. lt was his submission that the evidence of PW3 and the lies the appellant told PW5 who interrogated appellant immediately after his arrest was corroborative evidence. He relied on Chesakit Matayo v Uganda CACA No. 95 of 2004 where this court obscrved that lies are inconsistent with innocence and if proved, can be used to corroborate prosecution evidence. 20

Regarding Ground No. 2, counsel submitted that rhe trial Judge did not crr when he considered the manner in which the deceased was killed in extreme violence. Counsel added that the sentence of life imprisonment was not harsh. 25

Counsel invited this court to find that the trialJudge considered the mitigaring and aggravating factors before passing the sentence o[ life imprisonment which sentence was appropriate given the circumstances of the case. He cited Karisa Moses v Uganda SCCA No. 23 of 2O16 and Kaddu Kavulu Lawrence v s Uganda SCCA No. 72 of 2Ol8 where the Suprcmc Court upheld the sentencc of life imprisonment in charges of murder.

It was counsel's submission that the appellant has not advanced any compelling reason upon which court can interfere with thc sentence against him. It was counsel's prayer that the conviction and sentence against the appellant be 10 upheld and the appeal be dismissed.

Dccision of Court

We have carefully considered the submissions of counsel; thc rcr:ord of appeal and aurhoriries availed to us. This being a first appeal, we are alive to the dury of this court as a first appcllate court to rcappraisc all the evidence adduccd at rrial and come up

with our own infcrences of law and fact bearing in mind that wc did not see the wirnesses first hand sc',e Kifamunte Henry y Usanda SCCA No. l0 of lry 15

On the first ground the appellant is challcnging the evidcnce of a singlc idenri\$ng winress. Section 133 ofThe Evidence Act provides that; subject to the provisions o[ any other law in force, no particular number of wimesses in any case is required for the

proof of any fact. 20

> Counsel for the appelJant also contended that thc condirions were not suitable to favour correct idenrificarion. We wish to make reference to the famous decision of AMalah Nabulere {g Anor v Uganda (1979) HCB rhat laid down the rules relarinq to idenrifi carion as fol lows;

"The judge should then examine closely the circumstances in which the idenrificarion came to be made, particularly, the length of rimc the accused was under observarion, the distance, the light, the familiariry of the u,itness with the accused- When the 25

identification is made after a long priod of observarion or in sarisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no 'otlrer evidence to support idenrificarion evidence, provided the court adequately warns itself ofthe special need for caurion."

5 We arc cognisant of the nced to wam ourselves on basing convicrions on single identifying wirnesses as was clucidatcd in AMalah Nabulere 6s C)rs v Ueanda (1979) HCB, rvherc Court noted that;

"Where the case against the accused d"p"nd" wholly or substanrially on the colrectness of one or more identificarions of the accused which the defence disputes, theJudge should wam himself and the assessors of the sprcial need for caurion before convicting the accused in reliance on the correctness of the idenrification or identiftcations. The reason for the special caution is that there is a possibiliry that a mistaken witness can be a convincing one, and even a number of such witrresses can all be mistaken..."

- In the instant case, PW2, the single idenrifying witness stated that; "there was moonlight. lt was very brighr that I chased and rried to touch him. It was bright that <sup>I</sup> could recogrize someone 50 meters. I knew the accused very well. He is a son to my brother who is married to the sister to the accused person. In cross-examinafion he stated that; "He entered the cassava garden and I chased him through the garden. I{e 15 - ended up in an open space. I even held him but he overpowered me and continued running. 20

From this narrarion, we observe that the appellant was well known to thc idenrifying witness, PW2 and that there was bright moonlight. PW2 also stared thar he was at a close distance to the apprllant, about l0 meters and that he chased the apprellant for some rime and even n-ied to catch him but out-ran him was able to disappear the cassava garden. This exposed the appellant to the idenrifying winress for a while and being that he was a person who was well known to him, we mle out the possibiliry of mistaken idendry.

We therefore find that the appellant wasproperly idenrified

We funher nore that the rrial Judge also relied on circumstantial evidence to convict the appellant. The trial Judge relied on the evidence of PW5, Deputy OC/CID who stated that he received a report of a murder case on l3'hJuly 2008 and the appellant was

the suspect but he was on the run. He retumed after 6 months and was arrested

In Tindigwihura Mbahe v Uganda SCCA No. 9 of lgSTandKatende Semakula v Uganda SCCA No. ll of 1994 the Supreme Court noted that;

Trial Courts should meat circumstantial evidence with caution, and narrowly examine it, due to the susceptibiliry of this kind of evidence to fabrjcation. Therefore, before drawing an inference of the accused s guilt fiom circumstanrial evidence, there is comprlling need to ensure that there are no other co-exisring circumstances, which would weaken or altogether destroy that inference."

Similarly, in Bogere Charles v. Uganfu SCCA No. l0 of 1996, Court held that; before drawing an inference of the accused's guilt from circumstanrial evidence, the Court

must be sure that there are no other co-exisring circumstances which would weaken or destroy the inference ofguilt." 15

We wish to refer to Remigious Kiwanuka v Uganda CACA No. 4l of 1985 where this coun heid that;

'This court has held in many cases that the disappearance of an accused person from

the area of a crjme soon aftcr the incident may provide corroborarion to other evidence that he has committed the offence sudden disappearance from the area is incompatible with innocent conduct of such a person." z0

In the instant mafter, the apprllant disappeared fiom rhc village after the murder and was arrested 6 months after he rerumed The appellant did not give any explanarion for

his disappearance. 25

Basing on our analysis above and the circumstantial evidence, we are sarisfied that the nialJudge rlglrdy held that the appellant had been properly idenrified.

Ground one of rhe appeal thus fails.

5 Regarding Ground No. 2, on the severiry of sentence, we note that the principles upnn which an appellate court may interfere with a sentence imposed by rhe rrial court r.r,ere considered in KamyaJohnson Wavamuno v Uganda SCCA No. 16 of 2000, where the Supreme Court laid down guidelines as follows;

"...1t is well setded that the Court of Appeal will not inrerfere with the exercise of discrerion unless there has been a failure to take into account a material considerarion, or an error in principle was made. It was not sufficient that the mcmbers of rhe court

would have exercised their discrerion differendy."

In Kyalimpa Edward v Uganda SCCA No.l0 of 1995, Court noted rhar;

manifestly excessive or too low to amoun[ to a miscarriage of justice."

"lt is trite law that an appellate court should not interfere with the discretion of a trial court in imposing a sentence unless the rrial court acted on a wrong principle or overlooked a material factor or where rhe sentencc is illegal or

In the instant appeal, counsel for the appellant contended that the custodial sentence of life imprisonment was extremely excessive.

We have had the opportunity to reappraise the sentence passed by the learned TrialJudge in his judgment when he stated that;

"l consider thc circumstanccs under which thc offencc took place... thc convict is a young man capable of reform. It is true thc death sentence is still good law but has to be handed down in the extreme o[ the most extremc cases. Considering this case as a whole, I will sentcnce the apparently remorseful convict to life imprisonment. "

'10

Z5

The Supreme Court in Aharikundira v Usanda SCCA No. 27 of <sup>2015</sup> underlined the dury of this court while dealing with appeals rcgarding senrencing to ensure consistency with cases that have similar facts.

ln Katurecbc Boaz & Anor v Ueanda SCCA No. 066 o[ 20ll the Suprcmc s Court held that;

"Consistency in sentencing is neither a mitigating nor an aggravating factor, the sentence imposed lies in the discretion of the court which in exercise thereofl may consider sentences imposed in other cases o[ a similar naturc."

We are mindful of the fact that there can barely be consistency in the sentences of this court where each case presents its own unique facts that are distinguishable. However, certaln decisions with quite similar facts have embraced the consistency principle.

ln Turyahika Joseph v Uganda CACA No. 127 of 2014, this Court emphasized that sentences ranging from 20-10 years arc appropriate in cases involving murder unless there are exceptional circumstances to warrant <sup>a</sup> higher or Iesser sentence.

ln Nkurunziza Robert v Uganda CACA No. 539 of 2016, the appellant was convicted o[ murder by strangulation and this honourable courr substituted a sentence of life imprisonment with a sentence of 28 years imprisonment.

2o tn Kaddu Kavulu Lawrencc v Uganda SCCA No. 72 of 2Ol8 the Supreme Court upheld a sentence of Life Imprisonment where the appellant injured his former partner to death by hacking hcr with a panga.

In Karisa Moses v Uganda SCCA No. 23 of 2016, the appellant who was 22 years old was convicted for murder of his grandfather. The Supreme Court confirmed a sentence of imprisonment for the rest of his li[e.

l0

Further in Rwalinda John v Uganda SCCA No. 03 of 2015, the appellant who was 67 years old was sentenced to Life Imprisonment and the Supreme Court confirmed his sentence.

Mindful of the above principles of law and considering the earlier decisions of this Court and the Supreme Court on sentencing that we have discussed above, $\mathsf{S}$ we have taken into consideration the aggravating and mitigating factors and found that a sentence of Life Imprisonment is appropriate in the given circumstances of this case. The trial Judge correctly exercised his discretion and we find no reason to interfere with his sentence.

In conclusion and for the reasons advanced above, we find no merit in this $10$ appeal. The conviction and sentence of the trial court are upheld.

The appeal is dismissed.

Dated at Kampala this....................................

Hon. Lady Justice Hellen Obura Justice of Appeal

Hon. Lady Justice Catherine Bamugemereire Justice of Appeal

30 $\mathbb{Z}$

Hon. Mr Justice Christopher Madrama Justice of Appeal