Okodi and Others v Uganda (Criminal Appeal 168 of 2019) [2023] UGCA 176 (20 June 2023)

with cap.


THE REPUBLIC OF UGANDA

## THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: Cheborion; Mugenyi & Gashirabake, JJA)

#### CRIMINAL APPEAL NO. 168 OF 2019

- 1. JIMMY OKODI - 2. ISAAC OGWANG - 3. DAVID OCEN - 4. RICHARD OKELLO ...................................

#### **VERSUS**

UGANDA ...................................

(Appeal from the High Court of Uganda holden at Lira (Nabisinde, J) in Criminal Case No. 157 of 2015)

$\mathbf{1}$

Criminal Appeal No. 168 of 2019

### JUDGMENT OF THE COURT

### A. lntroduction

- 1 Mssrs. Jimmy Okodi, lsaac Ogwang, David Ocen and Richard Okello ('the Appellants') were arraigned for the murder of Mr. Joel Okunyu (deceased) contrary to sections 188 and 189 of the Penal Code Act, Cap. 120. They were each sentence to a custodial sentence of 45 years. - 2. They have since lodged the present Appeal challenging their conviction and sentence on the following grounds: - l. The leamed trial Judge erred in law and fact when she held that the Appellants were properly identified by the deceased Okunyu Joel and his wife Agoa Scovia (PW2) as the assailants on the fateful night of the attack. - ll. The leamed tial Judge erred in law and fact when she solely relied on the evidence of a single identifying witness PW2 without any corroboration to convict the Appellants thereby causing a miscarriage of justice. - lll. The leamed trial Judge erred in law and factwhen she relied on a purported dying declaration of the deceased which lacked credibility to convict the Appellants thereby causing a miscarriage of justice. - lV. The leamed tial Judge ened in law and fact when she held that the prosecution had discharged its legal burden to the required standard of placing the Appellants at the scene of cime. - V. The leamed tial Judge erred in law and fact when she failed to exhaustively evaluate the evidence on record thereby convicting the Appellants on a charge which had not been proved by the Prosecution to the required legal standard. - Vl. The leamed tial Judge ened in law and fact when she sentenced the Appellants to a harsh peiod of 45 years imprisonment thereby causing a miscaniage of justice.

Criminal Appeal No. 168 of 2019

cnw

3. Atthe hearing of theAppeal, Mssrs. Jimmy Madira and Raymond Otim represented the Appellants on State and private brief respectively; while the Respondent was represented by Mr. Patrick Omia.

### B. Determination

4. The powers of an appellate court in an appeal from conviction and sentence, as is the case presently, are outlined in Section 132 of the Trial on lndictment Act, Cap. 23 (TlA). Section 132(1)(a) and (d) provide as follows:

# Subject to this section -

- a. An accused pe6on may appeal to the Court of Appeal from <sup>a</sup> conviction and sentence by the High Court in the exercise of its origanal jurisdiction, as of right on a matter of law, fact or mixed law and fact; - b. - c.

## And the Court of Appeal may -

- d. Confirm, reveEe ol vary the conviction and sentence; - 5. lt is the duty of a first appellate court to reconsider all material evidence that was before the trial court and, giving allowance for the fact that it neither saw nor heard the witnesses, come to its own conclusion on that evidence. ln so doing, the first appellate court should consider the evidence on any issue in its totality and not any piece thereof in isolation. lt is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. See Baquma Fred vs. Usanda, Criminal Aooeal No. 7 of 2004 (Supreme Couti). ln the earlier case of Kifamunte Henry vs. Uqanda, Supreme eourt Criminal Appeal No. '10 of 1997 that duty had been spelt out as follows

The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the kial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.

6. On the question of evidence, Boqere Moses & Another vs. Uqanda. Criminal Appeal No. 1 of 1997 (Supreme Court) further proposes that a first appellate court

M Wr-V

J

Criminal Appeal No. I 68 of 2019

should 'where available on record, be guided by the impression of the trial judge on the manner and demeaner of the witnesses.'

- 7. ln the matter before us, addressing Grounds 1, 2 and 4 of the Appeal, the trial judge is faulted for disregarding the Appellants' alibi in deference to the uncorroborated evidence of a single identification witness - Scovia Agoa (PW2). Learned Counsel for the Appellants anchors his contestation upon the observation in Festo Androa Asenua & Another vs Uqanda (1998) UGSC 23 that'it is trite law that by setting up an alibi, an accused person does not thereby assume the burden of proving its truth so as to raise a doubt in the prosecution case.' They further rely on R vs Chemulon Wero Olancro (1937) 4 EACA 46, as cited with approval in Festo Androa Asenua & Another vs Uqanda (supra), where it was held that'the burden on the person setting up the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible as to have committed the imputed act.' - 8. On that premise, it is argued that the Appellants duly accounted for their whereabouts on the fateful night and their evidence was duly corroborated. Thus, Jimmy Okodi, the First Appellant (DW1)testified that he was looking after cattle at 8.30 pm that night and sheltered himself from rain at his father's home. This evidence was supposedly corroborated by his father (DW8), who attested to DWl bringing back the cattle at 6.30 pm but, owing to a heavy down pour, took shelter at his (DW8's) home until the rain subsided at 9.30 pm, whereupon he left for his own home. DW2, DW3 and DW4 are similarly opined to have attested to not having been at the scene of crime, evidence that was supported by the testimony of DW5, the deceased's son, who testified that the deceased had not been murdered by the Appellants. - 9. The failure by the Prosecution to place the Appellants at the scene of crime was purportedly acknowledged by the trial judge but she nonetheless convicted them in violation of section 165 of the Evidence Act, Cap. 6 and the position espoused in Okethi Okale & Others vs Republic (1965) EA 555. Learned Counsel for the Appellants challenges the identification evidence relied upon by the trial judge for their conviction on the basis of the legal position on the identification of an accused

Criminal Appeal No. 168 ol20l9

Clfir/t W,

person as advanced in Uqanda vs Georqe Wilson Simbwa. Criminal Aooeal No. 37 of 1995, where the Supreme Court held

> The law is that although identification of an accused person can be proved by the testamony of a single witness this does not lessen the need for testing with the greatest care the evidence of such witness regarding identification, especially when the conditions favouring correct identification are difflcult. . .. Where conditions are unfavourable for correct identification, what is needed is other evidence pointing to guilt from which it can be reasonably concluded that the evidence of identification can safely be accepted as free from possibility of error. The true test is not whether the evidence of such a witness is reliable. A witness may be kuthful and his evidence apparently reliable and yet there is still the risk of an honest mistake particularly in identification. The true test is that laid down by the cases above referred to which, briefly, is whether the evidence can be accepted as free from the possibility of error.

- 10. ln the mafter before us presently, it is argued that the fatal attack against the deceased having ensued between 8.00 - 9.30 pm, PW2 waw neither able to identify the Appellants from torch light that was directed at her nor from a smokefilled kitchen from where she was cooking with firewood. The presence of a solar bulb in the kitchen is disputed, and the failure by PW2 to call out the Appellants' names when making an alarm is opined to support the proposition that the witness did not identify them at the scene of crime. lt is argued that her evidence was devoid of honesty or credibility, and the conditions and state of affairs at the material time did not favour the correct identification of the deceased's attackers. - <sup>1</sup>1 . Wilh regard to the dying declaration that is challenged under Ground 3 of the Appeal, not only is it questioned for restricting itself to the Second and Fourth Appellants, its credibility is questioned for having been purportedly made by a person that could no longer talk on the way to hospital, let alone identify his attackers when (according to the declaration) they commenced their attack by cutting his head. Learned Counsel contests PW3's supposed recording of the dying declaration yet the same witness and DW5 had attested to the deceased being unable to talk; as well as the trial judge's reliance on the same declaration to convict the Appellants, moreover without properly evaluating both sets of evidence.

Criminal Appeal No. 168 of 2019

U/-/\*

- 12. Uqanda vs Georqe Wilson Simbwa (supra) is cited for the proposition that although it is not a rule of thumb that a dying declaration would only support a conviction where it has been corroborated, 'it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject to cross examination unless there is satisfactory corroboration.' Learned Counsel relies on the definition of the term 'corroboration' in Hadiia Nasolo vs Uoanda. Criminal Appeal No. 14 of <sup>2000</sup> (unreported) as 'independent evidence direct or circumstantial which confirms in some material particulars not only that the offence has been committed but also that the defendant committed it.' - 13. Such supportive evidence was allegedly lacking in the present case. Additionally, the Appellants' conduct before, during and after the alleged attack is argued to be incommensurate with their supposed participation in the attack, the evidence on record suggesting that they did join the deceased family at his funeral. - 14. Restating the burden of proof in criminal trials, as well as the well settled principle that any doubts in the prosecution case should be resolved in favour of an accused person; it is argued that although the Appellants were never placed at the scene of crime, the trial judge based her decision not on the strength of the prosecution case but on the supposed weakness of the defence case to convict the Appellants. Finally, the trial court's consideration of only five (5) rather than the allegedly six (6) years spent on remand is opined to render illegal the 4s-yeat sentence handed down to the Appellants. - 15. Conversely, the Respondent contends that the Appellants were convicted on the basis of the cogent identification evidence of PW2, which was corroborated by the deceased's dying declaration made to PW3 in the presence of PW4. That evidence is opined to have been supported by the circumstantial evidence of the proven land dispute between the deceased and David Ocen, the Third Appellant. - 16. lt is argued that the trial judge relied on the case of Abdalla Bin Wendo & Another vs R (1953) EACA 166 to rely on the evidence of a single identification witness PW2, whom she considered a truthful witness. Learned State Counsel supported the trial judge's finding that the circumstances at the scene of crime favoured a

Criminal Appeal No. I 68 of 2019

e

cMr W,

correct identification insofar as the Appellants were well known to PW2, were in close proximity to her in a kitchen that had light from a solar bulb, and she was not the primary object of their wrath and was therefore able to identify each of them.

- 17. The dying declaration and the single identification witness' evidence are opined to corroborate each other, the declaration having been made immediately after the attack and repeated to PW3 in the presence of PW4 when the deceased was being taken to the hospital. The trial judge is supported for addressing her mind to the law on dying declarations as stipulated in @ Criminal Appeal No.9 of 1987 (Supreme Court), cautioning herself on the difficulty of correct identification in the dark, the need for a declaration's corroboration and finding such corroboration in PW2's evidence. The dying declaration was admitted in evidence as PE4. - <sup>1</sup>8. With regard to the Appellants' alibis, the trial judge is opined to have been duly alive to the duty upon the prosecution to rebut an accused person's alibi, as well as the need to evaluate both sets of evidence in arriving at her conclusion. Additionally, deference is made to the observation in R vs Sukha Sinoh s/o Wazir Sinqh & Others (1939) 6 EACA 145, as cited with approval in ftg!q.1\$d-f€ Asenua & Another vs Usanda (supra), that an alibi ought to be raised as early as possible in a criminal trial to allow time for its investigation by the prosecution and the possible cessation of the proceedings. - l9. Reference is further made to Lt. Jonas Ainomuqisha & Others vs Uqanda, Criminal Appeal No. 28 of 1994 (unreported), where the Supreme Court observed that the prosecution could dispose of alibis by either producing cogent evidence that puts the accused person at the scene of crime, or through evidence of police investigations that establishes whether the defence of alibi was raised at the earliest opportunity and if it was investigated. ln the instant case, although there was no evidence in respect of the police investigations, the trial judge is opined to have correctly evaluated the prosecution evidence against the Appellants' alibis and found overwhelming evidence connecting them to the deceased's murder. - 20. ln relation to the contested sentences, it is argued on the authority of Kiwalabye vs Uqanda. Criminal Appeal No.143 of 2001 (Supreme Court) that sentencing is

Criminal Appeal No. 168 of 201 9

L 3-

^///4

c-lvV

at the discretion of a trial judge and an appellate court should only interfere with a sentence so imposed if it is evident that the trial court acted on a wrong principle or overlooked some material fact, or if the sentence is manifestly harsh and excessrve

- 21 . ln support of the sentence handed down in this case, it is argued that the Appellants had only spent 4 lz years on remand, having been indicted in August 2013 and sentenced in February 20'18. Therefore, far from being harsh and excessive, not only did the trial judge take into account the Appellants being first offenders to spare them the maximum death penalty or life imprisonment, she leniently deducted 6 months more from their sentence than they were entitled to. - 22. We have carefully considered the parties' rival submissions in this matter. The Appellants do not appear to challenge the ingredients of the offence of murder, only contesting their participation therein. The trial judge is particularly faulted for supposedly disregarding the Appellants' alibis in deference to the evidence of a single identification witness and the deceased's dying declaration. - 23. The record of appeal reveals that the trial judge discharged herself as follows. After stating the law on alibis as stipulated in a plethora of case law, she observed:

I have also carefully cautioned myself on all the treating alibi by accused persons in lhls case; the accused persons in their individual defences admitted sleeping in their houses thaf night, none left the area. l'm alive to the effect evidence of each of the accused persons. Am also aware that the position of the law is that an alibi ought to be put lorward at the earliest possible time to give prosecution the chance to adduce evidence to test it as per Yusuf Kyobe Semalogo v Uganda tlB 3/67 cited with approval in Uganda v Osherura & Anor HC 1 1 1 <sup>4</sup>- 201 0. the prosecution in t ls case had no oppoftunity to adduce evidence specifically to rebut or test the alibi, be that as it is, the test in the case of Bogere v Uganda and An/r, cited above is applicable to resolve this point.

#### 24. The trial judge then rendered herself as follows:

/n thls case, the prosecution's evidence is that the accused pel'sons A1, A2, and A3 were seen at the scene of crime by PWz The law in regard to identification has been stated in numerous declslons; lt is c/e ar that although a fact can be proved by testimony of a single witnoss tiiis does ,ot lessen the need of testing with the greatest care the

Criminal Appeal No. 168 of <sup>2019</sup> 3

c-rdq \*a evidence of such witness respecting identification especially when conditions favouring conect identification were difficult. See Abdalla Bin Wando and Another v R (1953) 20 EACAl66and Roria v R(1967) EA583. Following on that, I have with the greatest care evaluated all the evidence of the prosecution o, this /ssue and addressed myself to the facts and the law. lt is not disputed that in this case, PW2 was ceftain that she saw and identified each of the four accused persons individually among the seven who attacked her and her husband that fateful evening at the scene of crime - her home. She was asslsfed by a solar light bulb and had known all the assailants before that. She was a/so clear that she heard them talking to each olher as they carried out their attack on her and her husband. I also took time to obseNe the demeanour of PW2. and I was impressed thal she was te ing the truth and had no reason at all to frame any of the accused persons. Her testimony is corroborated by PW3 who came to the rescue and heard the deceased name his aftackers while still alive. He also recorded P. Exhibit No.3(A) and (B) from the deceased. Ih,s /s a/so fottified by the testimony of PW4 who also heard the deceased name his attackers. I have also found that PW3 and PW4 had no motive to frame any of the accused persons: indeed none was raised as to why any of them claimed to have seen or heard what was stated before coutt. I therefore find that the defence evidence is a lame excuse to evade justice, taking into account the fact that there is overwhelming evidence connecting all the four accused persons to the commission of this offence. . .. my own conclusion after weighing the prosecution's evidence and the defence of the accused persons is that the prosecution has discharged its burden of proving the padicipation of each (ofl the accused persons beyond reasonable doubt.

- 25. Evidently, the trial judge was alive to and cautioned herself against the dangers of relying on the evidence of a single identification witness. lt is with that caution in mind that she would appear to have arrived at the conclusion that PW2's identification evidence did in fact place the Appellants at the scene of crime in this case - 26. The /ocus c/asslcus on correct identification in a criminal trial was laid out in Abdala Nabulere & Another vs Uqanda Crim. Appeal No. 9 of 1978 as follows:

The court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. lf the quality is good then the danger of mistaken identity is reduced. The poorer the quality, the greater the danger.

Criminal Appeal No. I 68 of <sup>2019</sup> ,e 4d

- 27. That test of correct identification is applicable to single identification witnesses too, albeit with the need for caution espoused in Abdalla Bin Wendo and Another vs ! (supra) - 28. ln the instant case, the evidence on record indicates that the Appellants were very well known to PW2, a fact that is corroborated by their own testimonies of their relationship with her. With that prior knowledge of them, the witness was able to identify them with light from a solar bulb at the scene of crime, as well as torch light that they directed at the deceased's head before attacking him. The distance between her and the Appellants when they first arrived at the scene of crime was about five meters. This in itself, with the available lighting and her prior knowledge of them, would enable correct identification. However, in addition, the Appellants followed the deceased inside the kitchen where PW2 was thus bringing her into closer proximity with them. They commenced their attack at that close range before dragging the deceased outside and continuing to cut and stab him in multiple places. - 29. Although the length of time the attack took is not indicated, the circumstances of the Appellants identification as highlighted above is undoubtedly strong enough on its own to negate the possibility of mistaken identity. in any case the multiple cuts observed in the post mortem report would not support the possibility that the attack ensued in so short a period of time as to vitiate the accuracy of PW2's identification evidence. We would disallow the notion advanced by the Appellants that PW2's failure to name the deceased's attackers before the trial did much to discredit her identification evidence. We are alive to the risks of a premature disclosure of the attackers insofar as it could have placed her own life in danger as well. - 30. Consequently, we cannot fault the trial judge's finding that the identification evidence apparently placed the Appellants at the scene of crime. The question is whether the alibi raised by the Appellants in their defence creates sufficient doubt as to the sustainability of this finding so as to impugn the Appellants responsibility for the deceased's death. - 31.|t is kite law that the defence of alibi does not shift the burden of proof in a criminal trial to an accused person. The onus to prove beyond reasonable doubt that

l0

Criminal Appeal No. I 68 of 2019

+ W,

accused persons were at the scene of crime remains with the prosecution. See Festo Androa Asenua & Another vs Uqanda (supra) and Se kitoleko vs Uqanda (1967) EA 531 . The accused person would only bear the duty to so account for his/ her whereabouts during the material time a crime was committed as to render it impossible for him/ her to have participated in its commission. \_See R vs Chemulon Wero Olancro (1937) 4 EACA 46 as cited with approval by the Supreme Court in the Festo Androa Asenua case.

- 32. ln the Appeal before us, we find no demonstration to the required standard that the trial judge in any way shifted the burden of proof of the criminal proceedings before her to the Appellants. They did nonetheless bear the duty of proof of the defence that they had set up so as to rebut the identification evidence presented by the prosecution. The mere raising of an alibi is not sufficient to do so; rather, the alibi so raised ought in our view to be supported by credible and cogent evidence before it can be considered to have raised reasonable doubt as to the veracity of the prosecution's case. - 33. ln R vs Sukha Sinqh s/o Wazir Sinqh & Others (supra), the correct approach to the defence of alibi was clarified as follows:

lf a person is accused of anything and his defence is an alibi, he should bring forward the allbi as soon as he can because, flrstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that aliba and if they are satisfied as to its genuineness proceedings will be stopped.

34. ln that regard, the Supreme Court did in Festo Androa Asenua & Another vs Uqanda (supra) conclude as follows

> We should point out that in our experience in Criminal proceedings an this Country it is the tendency for accused persons to raise some sort of alibi always belatedly when such accused persons give evidence. At that stage the most the prosecution can do is to seek adjournment of the hearing of the case and investigate the alibi. But that may be too late. Although for the time being there is no statutory requirement for an accused person to dlsclose his case prior to presentation of his defence at the trial, or any

Criminal Appeal No. I 68 of 201 9

3 cf,,ar{ w)

prohibition of belated disclosure . .. such belated disclosure must go to the credibility of the defence.

- 35. ln this case, PW3 doubled a both Scene of Crime Officer and investigating Officer. As such, he recorded the deceased's dying declaration, as well as the Appellants' statements following their arrest. At that early stage, only the First Appellant raised the defence of alibi stating that he had gone to look after his cattle at the time of the deceased's murder. The rest of the Appellants made no mention of any alibis, the Third Appellant simply alluding to an outstanding land dispute between him and the deceased. Clearly, therefore, they had the opportunity to raise their alibis earlier in the proceedings but did not do so. - <sup>36</sup>ln (supra), it was opined that the raising of alibis months after the earliest opportunity to do so had presented itself raises connotations of a 'prepared' defence. Thus, the tendency by accused persons to raise alibis belatedly by way of evidence at trial was alluded to in feslQ Androa Asenua & Another vs Uqanda (supra) as a matter that impedes the credibility of the defence. ln the instant case, given the strength of the identification evidence reviewed earlier in this judgment, we are unable to disagree with the foregoing propositions. lf indeed the alibis raised by the Second, Third and Fourth Appellants were credible, they should have been raised promptly in the initial statements made upon arrest, rather than close to four years after the deceased's death. - 37. With regard to the First Appellant's defence of alibi, although it was promptly raised, it was riddled with material contradictions that would completely undo its evidential worth. To begin with, the supposed alibi was not duly established as such. The evidence of PW2 and DW6 (an eye witness and the first person that responded to her alarm) would support the conclusion that the fatal attack took place slightly before or about 8.00 pm on the night of 12th August 2013. This evidence was corroborated by that of PW3, who received a phone call informing him of a murder case at about 8.30 pm. That would mean that by that time (8.30 pm) the attack had been concluded and the victim thereof was presumed dead.

Criminal Appeal No. 1 68 of 20 19

t2

+"t ^// +.

- 38. The First Appellant having attested to arriving at the house of DW8 (his father) at 8.30 pm, would not benefit from the defence of alibi because that time would not place him outside the material time within which the impugned act ensued, which is slightly before and/ or about 8.00 pm. To compound matters, rather than corroborate the supposed alibi, DW8's evidence materially contradicted that of the First Appellant as to the time the latter arrived at his father's home. Although DW8 attested to the First Appellant having arrived at his home at 6. 30 pm and left between 9.00 - 9.30 pm (which would have been an acceptable alibi), that evidence contradicted the First Appellant's own testimony of arrival at his father house at 8.30 pm thus leaving the supposed alibi unproven. Consequently, we would disallow the defence of alibi put forward by the Appellants, and agree with the trial judge that the identification evidence in this case correctly placed the Appellants at the scene of crime. - 39. Having so held, we find no reason to consider the dying declaration that is impugned under Ground 3 of this Appeal. ln any case, it was not the primary basis for the Appellants' conviction as propounded in that ground of appeal; rather, the dying declaration was considered by the trial court in corroborative capacity as having corroborated PW2's identification evidence. As stated earlier in this judgment, there is nothing to stop a trial court from relying upon the evidence of a single identification witness provided that, bearing in mind the inherent danger of mistaken identity, it finds that the circumstances prevalent at the scene of crime were such as favoured correct identification by the sole identification witness. This is the case presently. We are satisfied, therefore, that the Appellants were rightly convicted of the offence of murder as indicted. We would therefore disallow Grounds 7 to 5 of this Appeal. - 40. Turning to the contested sentences, the only bone of contention between the parties is the number of years spent on remand that should have been deducted at sentencing; the Appellants allotting five years thereto and the Respondent four and a half years. The material on record is that the Appellants were arrested in August 2013 and sentenced in February 2018. That would be 4 /,years spenton remand, which were apparently rounded off to five years and deducted from a potential 50-year term sentence.

l3

Criminal Appeal No. I 68 of 201 9

3 @r @,

41. We do agree with learned State Counsel that an appellate court may only interfere with a sentence handed down by a trial court in the case of an illegal or manifestly excessive sentence or where the trial court has overlooked important matters or principles that ought to be considered See Kyalimpa Edward vs Uqanda, Criminal Appeal No. 10 of 't995 and Kamya Johnson Wavamuno vs Uqanda, Criminal Appeal No. 16 of 2000 (both, Supreme Court). We are also alive to the need for consistency in sentencing

## 42.ln Ayimani Swaid Dodo & Another vs Uqanda, Criminal Appeals No. 401 &

411 of 2016, in relatively similar circumstances, this Court reduced a 4s-yeat sentence for murder to 30 years taking into account the youthful age of the accused persons in that case, who lacked the benefit of wisdom acquired with age. ln this case, although the First and Second Appellants are in a similar age bracket at 34 and 37 years old respectively, the Third and Fourth Appellants are 54 and 46 yearolds, who might have attracted some degree of leniency but for their failure to exercise more restraint and provide a better example to their younger co-accused. Moreover, the Fourth Appellant was no less than a defence secretary that grossly reneged on his duty to the deceased. To compound matters, all the Appellants were related or associated to the deceased in one way or another, making their hideous actions against him even more inexcusable.

43. Considering the totality of these circumstances, we would only reduce the Appellants' respective sentences to a 38-year term, from which we deduct the 5 years spent on remand.

## C. Disposition

- 44. ln the result, Grounds 1, 2, 3, 4 and 5 of this Appeal fail, and the Appellants' conviction is hereby upheld. - 45. Ground 6 of the Appeal succeeds. The Appellants' respective sentences are hereby set aside and substituted with sentences of thirty-eight (38) years each, from which are deducted the five (5) years spent on remand. They shall each serve a sentence of thirtythree (33) years from the date of their conviction.

l4

Criminal Appeal No. I 68 ol20l 9

Lld M//4

It is so ordered

Dated and delivered at Kampala this day of &"-^{ 2023.

,r--

Barishaki Cheborion Justice of Appeal

I

Monica K. Mugenyi Justice of Appeal

Christopher Gashirabake

Justice of Appeal