Okwi and 3 Others v Uganda (Criminal Appeal No. 137 of 2017) [2022] UGCA 31 (11 February 2022)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT JINJA

# CONSOLIDATED CRIMINAL APPEALS NO. 137 of 2017 & 70 of 2020

(Arising from the decision of Batema N. D. A. J sitting at Soroti dated 13<sup>th</sup> April $\mathsf{S}$

2017 in HCT – 09-CR-SC-0097 of 2014)

- 1. OKWI PATRICK - 2. ELUNGAT SAM

3. MORINYANG ASANASIO

4. ODONGO JAMES:::::::::::::::::::::::::::::::::::: 10

#### **VERSUS**

$UGANDA \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \$

HON. LADY JUSTICE ELIZABETH MUSOKE, JA **CORAM:**

HON. JUSTICE CHEBORION BARISHAKI, JA

HON. LADY JUSTICE HELLEN OBURA, JA

## JUDGMENT OF THE COURT

The appellants were charged with Murder c/s 188 and 189 of the Penal Code Act and attempted Murder c/s 204 (b) of the Penal Code Act. At the beginning of the trial, the 1<sup>st</sup> appellant pleaded guilty to all the four counts and was sentenced to fifty two years (52) imprisonment on each count of murder, 3 years for attempted

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murder of Emunyeret Sam and 7 years on count 4 for the attempted murder of Sylvia Gorreti whereas Elungant Sam, Morinyange Asanasio and Odongo James who pleaded not guilty were tried, raised the defense of alibi' they were convicted andsentencedtocustodialSentencesof52yearsformurderofDr. Emunyeret Sam and 52 years for the murder of his wife Oluka Stella and 3 years for attempted murder of Emuneret Sam and 7 years for attempted murder of Gorreti'

Dissatished with the decision of the trial Judge' the 2nd' 3rd and 4th appellants now appeal on the following grounds;

- l. Thelearnedtrialludgeerredinlanlland'factholdingthattheappellants - participated in the murder of the deceased persons and the attempted murder of their children thus arriuing at a tDrong conclusion, prejudicial to the aPPellants. 10 - 2. Tle learned trial Judge erred in lana and facts uhen he imposed a harsh and excessiue sentence - Thel"tappellantfiledseparatememorandumofappealfrom2"d,3rdand4'h appellalts. He appeals against the sentence only on the sole ground that; 15 - 1 . The leamed tial Judge erred in law and in fact tohen he sentenced the appellant to 52 gears for count 1, 3 for count 2 and 7 gears imprisonment for count 3 which utas illegal, harsh and manifestly excessiue'

#### Background

On the 22"'1 day of April 2Ol4 al around/between 8:00am to 9:O0am, Dr' Emunyeret together with his family members were in their garden located within Kachede village, Bukedea District planting crops when the appellants emerged armed weapons including pangas and hoes. They started cutting the deceased

- and his deceased wife killing them instantly. They chased the lstand 2nd survivor with the intention of murdering them too and in the process cut them using pangas. The survivors ran away alarming which alarms were answered by a number of persons who helped to rescue them from the assailants/ accused. - At the hearing of the appeal, Counsel Isabirye appeared for the appellants whilc Malunza appeared for the respondent. 10

# l't appellants' submlssions

Counsel sought leave to appeal against sentence only under Section 132(1) (b) of the Trial on Indictments Act which was granted.

It was submitted for the l"t appellant that the learned trial Judge did not consider the mitigating factors of the case before sentencing the <sup>I</sup>"t appellant and thus passed harsh and excessive sentences. Counsel submitted that the lsr appellant was a first offender with no criminal record. He had spent time on remand and was the sole bread winner of the family with many other responsibilities. Counsel argued that these factors should have been considered in mitigation by the learned trial Judge which he did not. He cited Naturlnda Mtchael Vs Uganda; Crimlnal Appeal No. 244 of 2OL4 cited in PC Amukun Page 3 of 19 15 20

John Michael & Another Vs Uganda CA No. 67 of 2OLL to say that the trial Judge was obliged to explain both aggravating and mitigating factors being considered by court to arrive at the appropriate sentence.

He further submitted that had the trial.judge considered all the mitigating factors and weighed them against the aggravating factors he would have reached a balanced point of view and the l"t appellant would have received a lesser sentence.

He adverted that the sentence was excessive and cited WassaJa Steven Vs Uganda Criminal Appeal L9lL975 for the preposition that it is manifestly excessive to sentence a first time offender to 15 years imprisonment.

counsel for the 1"t appellant further cited Article 23(8f of the constitution which provides that for a person convicted and sentenced to a term of imprisonmen t for an offence, any period he or she spends in lawful custody in respect of thc offence before completion of his/her trial shall be taken into account in imposing

the term of imprisonment. He also cited the decision in Rwabugande Moses vs Uganda; Supreme Court Criminal Appeal No. 25 of 2Ol4 to support the same position. 15

counsel prayed that the sentence be set aside for being illegal and that court should pass a sentence that is iawful and appropriate taking into account the mitigating factors.

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## Respondent's submlsslons

# The 2od, 3'd and 4th appellants' appeal.

Counsel submitted for the 2nd, 3',t and 4th appellants that the learned trial Judge failed to properly evaluate evidence on record as a whole by relying on his owrt s opinion in holding that the appellants participated in the murder of the deceased and attempted murder of their children. He submitted that whereas the learned trial judge judge had judicial discretion in making his decisions, he ought not to be influenced primarily by his personal opinion but evidence'

Counsel further adverted that each ofthe appellants raised an alibi. A2 told court 10 that he went to plant groundnuts in his garden at 6:00am in company of his elder sister Apiot, A3 and two children. A4 also testified on oath that he had spent the night at his second home in Otiokot Village'

He further submitted that 44, odongo James who had spent the night of <sup>21</sup>lO4 12014 in otikot village, in the morning rode his bicycle to his home in 15 Kachade village to show Ikiring Night where to weed in the maize garden.

counsel submitted that once an accused person puts forward an alibi as an answer to a charge made against him, he does not assume the burden of proving that alibi. It was up to the prosecution to bring evidence destroying the alibi and that if the accused properly accounted for their time and whereabouts away from 20 the scene of crime they must be believed. He concluded on this ground hy submitting that the prosecution failed to bring evidence placing the 2nd, 3rd and 4th appellants at the scene of crime.

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on ground two, counsel submitted for the appellants that while arriving at the sentence, the learned trial judge failed to consider the appellants' mitigating factors which included; the fact that the appellants were first time offenders with no previous criminal records since the prosecution had not adduced any S evidence to the contrary. That the learned trial judge had exclusively considered the aggravating factors leaving out the mitigating factors and referred to the constitutional (Sentencing Guidelines for courts of Judicature) (Practicc) Directions,2O13.

Counsel argued that it was manifestly excessive to sentence a ltrst time offender 10 to 52 years imprisonment and referred to waasaJa Steven Vs Uganda (supra) in support of his argument. That the trial judge in his sentence at page 123 of the record failed to take into account the mitigating factors and cited Naturlnda Mlchael ve uganda (supra) to say that the obligation is placed on the trial Judge to explain which factors, both aggravating and mitigating were considered tcr 15 arrive at the appropriate sentence.

The appellants prayed that court finds the sentences imposed on them by the learned trial Judge to be illegal, harsh and excessive.

In reply, it was submitted for the respondent on ground one regarding identification of an accused person, that it is important to expound the principles 20 and laws governing identification. counsel cited Abudala Nabulere and 2 others Vs Uganda; crimlnal Appeal No. 9 of 1978 where court held that the trial judge

should examine closely the circumstances in which the identification came to be

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made, particularly the length of time the accused was under observation, the distance, the source of light and the familiarity of the witness with the accused.

Counsel invited Court to look at the pieces of evidence which squarely placed the appellants at the scene of crime. He submitted that PW1 Emunyeret Ivan at page

s 20 identified the 2",1, 3.d and 4th appellants in court by their names, PWl also identified the appellants at the police station as the attackers a few days after the incident. PWI in addition identified the attackers as their uncles and immediate neighbor's in the village and informed court he had known them since his childhood. PW2 also corroborated the testimony of PWl at page 24 of thle 10 record and PW3 Opio Solomon told Court how he went to the scene of crime tc rescue PW2 and found Stella oluka still alive and she told him that it was the

appellants who had committed the crime.

counsel submitted that the appellants were positively identified at the scene of crime by PWl and PW2 and their testimonies corroborated each other'

15 Counsel further submitted that the distance between the appellants an<l witnesses was so close since the appellants were using pangas which are known to be short weapons and from the demonstration of PW 1, they were in close distance of the courtroom setting where the matter was tried. He cited oPolot Justln and Agamet Rlchard v ugenda sccA No' 31-l2ot4 for the preposition 20 that an alibi can be destroyed by the prosecution evidence which squarely places an accused person at the scene of crime.

He submitted that the conduct of the appellants running away from the scene of crime and their homes after commission of the crime left no plausible explanation other than that of guilt and that the defence they put forth that the relatives of the victims wanted to revenge by killing them is unbelievable since 5 they started by hiding in the bush when nobody thought of harming them'

counsel further submitted for the respondent that from their testimonies, the appellants learnt of the murder incident early enough but avoided the scene of crime and instead went into hiding in the bush assuming there was a likelihood of revenge which they actually disputed and asserted that the most reasonable 10 thing would have been to immediately seek refuge at the nearest police station. counsel cited uganda V John wilson slmbwa sccA No.7/ 1995 to say that the conduct of running away from their homes and from the scene of crime corroborated the testimonies of PW I and PW2 that the appellants participated in the crime.

15 Counsel submitted for the respondent that the dying declaration made by Oluka Stella to PW3 was relevant and admissible under Section 30 of the evidence Act and that the dying declaration corroborated PW1 and PW2',s testimonies.

He submitted that there were several glaring contradictions, however, they dealt with the one between DW3 and DW5 about the motorcycle used from police 20 station aJter reporting the murder incident at police. At page 37 para.4 he stated that they used odongo's motorcycle from police station whereas DwS stated that

the motorcycle used was the one exhibited at the police and that it was ridden

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by a crime preventer. counsel for the respondent cited Nfred TaJar vs. Ugarrda; E. A. C,A Criminal Appeal No. 167 of 169 cited with approval in Uganda Vs' George Wilson Slmbwa SCCA No. 37 | L995.

counsel for the respondent submitted that the appellants were positively s identified at the scene of crime and prayed that this court dismisses the appeal.

counsel submitted that the sentences the learned trial judge gave were lenient bearing in mind the nature of the crimes which caused a miscarriage of justice. He prayed that sentences be varied and enhanced to imprisonment for life for al1 the appellants that is; A1 Okwi Patrick, A2 Elungat Sam, 43 Morinyang Asanasio 10 and A4 Odongo James. That Court had power under section 11 ofthe Judicature Act Cap. 13, section 132(1) (d) of the Trial on Indictment Act and Rule 32 (1) of the Judicature (court of Appeal Rules) Directions SI 13- 10 to effect the enhancement. That the sentences for murder be substituted with life imprisonment for counts, 1 and 2 of murder and count 3 and 4 for attempted 15 murder be substituted with 15 years imprisonment. He cited Busiku Thomas vs. uganda; sccA No. 33|aOLL to demonstrate that the variation was possible

counsel further submitted that the appellants murdered two persons (husband and wife) and left their two children physically incapacitated due to injuries sustained in an attempt to kill them, that the wanton behavior with which the 20 appellants committed these heinous crimes deserved no mercy and prayed that enhancement of the sentence was the only way to meet the ends of justice.

He referred to Guldelines 19 of the Judicature (sentenclng Guldelines for couftE of Judicature) (Practtcef Directlons 2o13, third schedule part 1 where the sentencing range in murder cases is 30 years up to death and starting point being 35 years. The murder was premeditated, and the deceased persons went 5 through a lot of pain due to injuries because the appellants used pangas. There was deliberate loss of lives caused by a group of persons acting in execution cr furtherance of common purpose. Counsel added that murder was a serious offence which carries a maximum sentence of death and the appellants murdered their clan member leaving the surviving children with no parents.

10 He further submitted that atthough counsel for the appellants had raised mitigating factors such as; the appellants being lirst time offenders, the <sup>i</sup>"l appellant pleaded guilty, the appellants were young and had been on remand for five years and five months, the learned trial judge took into account all those factors but these mitigating factors were outweighed by the fact that two people 15 were killed in cold blood and that the appellants attempted to murder two of the deceased-s children.

# Determination of Court.

A first appellate court has a duty to re-evaluate the evidence and come to an independent conclusion on the facts and the law, taking into account that it did 20 not see or hear the witnesses (see Pandya v. R [195fl EA 336; Okeno v. Republlc lLg721F,A32; Charles Bitwire v. Uganda SC Ct' App No' 23 of <sup>1985</sup>

PaBe 10 of 19 ## end Kifamunte Henry v. Uganda SC Cr. App. No. 1O of L997. See also R. 3O of the Court ofAppeal Rules)

The lst appellant's ground of appeal was against sentence only, we shall first determine the same.

5 The lst appellant faulted the learned trial judge for meting out an illegal, harsh and manifestly excessive sentence of 52 gears impisonment for count 1, 3 gears impisonment for count 2 and 7 years impisonment for count 3.

While sentencing the lst appellant at pages 123 and 124 of the record, the learned trial judge clearly made no mention of and never took into consideratior

the period of 5 years and 5 months the 1st appellant had spent on remand. 10

### Artlcle 23(81 of the Constltutlon provides that;

"Where a person is conuicted and sentenced to a term of imprisonment for an offence, ang period he or she spends in lauful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

In Rwabugande Moses versus Uganda (Supra), the Supreme Court held that <sup>a</sup> sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision.

Guideline 15 ofJudicature (Sentencing Guidelines for courts ofJudicature) (Practice) Directions 2O13 provides;

lLl The court sho,ll take into o.ccour.t ang period sPent on remand in determinlng an apptopriate sentence.

5 (2) Tftie court shall deduct the period sPent on remand from the sentence considered appropriate after all Jactors have been taken lnto account'

Indeed, it is crystal clear that the trial judge didn't consider the said period as he only alluded to the aggravating factors and for the said reason the sentence meted out against the 1st appellant was illegal.

We shall now proceed to sentence the appellant afresh pursuant to Sectlon <sup>11</sup> of the Judlcature Act, which provides as follows:

# "77. Coura ol Appeal to hann lxruurs ol the court of orlglnal Jurlsdlctlon.

For the purpose of hearing and determining an appeal, the Court of Appeal shall haue all the pouters, authoitg and iurisdiction uested under ang uritten latu in the court from the exercise of the oiginal jurisdiction of uthich the appeal oiginally emanated" 15

we are alive to and have taken into account both mitigating and the aggravating factors on record which we need not reproduce here, the principle of uniformity in sentencing and the remand period of 5 years and 5 months, we are satisfied 20

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that a sentence of 32 years imprisonment on counts I & 2. On count 3, we shall treat the sentence of 3 years imprisonment as having been served and on courrt 4,'we are of the view that 1 year imprisonment will serve the ends of justice.

#### Conslderation of the 2"d,3rd end 4th appellants' appeal.

5 The appellants raised 4 grounds of appeal in their memorandum of appeal but abandoned 2 of the grounds in their submissions and we shall determine the remaining grounds. The 1st ground is in regards to the 2"d 3'd and 4th appellant's participation.

In a murder charge, the burden lies on the prosecution to prove the following ingredients beyond reasonable doubt; 10

1. Death of a person.

2. The death was unlawfully caused.

3. The death was caused with malice aforethought.

- 4. The accused persons participated in or caused the death of the deceased' - 5. Where there is more than one accused person, it ought to be proved that there was a common intention among them to execute an unlawful purpose. 15

In this case, the first four ingredients are not being contested on appeal. The appellants' case is that the prosecution did not prove the participation of the 2nd, 3'd and 4th appellants in the murder.

In proving participation the following requirements for proper identihcation must be satisfied; familiarity before the incident, sufficient light to enable identification, distance between the witness and the accused and time spent. PW 1 Emunyeret Ivan and PW2 Atai Sylivia Gorreti were familiar with the 5 appellants, the appellants were clan uncles and neighbors of the surviving two eye witnesses. The crime was committed in a broad day light in a clear morning at 7am and not dark night.

As regards the proximity, PW1 and PW2 testified that they were surrounded by the appetlants and assaulted using pangas which are sharp weapons, the cutting 10 was done at a close range and their distance from the appellants was close enough to aid proper identification.

From the above evidence, it is clear that the 2nd, 3rd and 4th appellants were properly identified by PW 1 Emunyeret Ivan and PW2 Atai Sylivia Gorreti (children to the deceased). The appellants were well known to them, because they 15 were neighbors and clan uncles. Above all, there was sufficient light, which ably aided their identihcation. These were satisfactory conditions by people who knew the appellants before. These facts were not challenged and no question of mistaken identification was raised by the appellants. Therefore the saiC appeilants were ably identified as the assailants.

20 We also take cognizant of the doctrine of common intention to commit the offence against the witnesses and the deceaseds.

Sectlon 2O ofthe Penal Code Act provides:

" When tu.to or more persons form a common intention to prosecute an unlawful purpose in conjunction uith one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission u.;os a probable consequence of the prosecution of that purpose, each of them is deemed to haue committed the offence."

The evidence of PWl Emunyeret Ivan is that when they were planting maize together with the deceased persons and PW2 Atai Sylivia Gorreti, the appellar:ts approached them driving their cattle and surrounded them, they were told that it was their last day.

#### The case of Klsegela and Another v. Uganda; Criminal Appeal No. 6 of 1978 (Supreme Court) elaborates on the above provision thus: 10

In order to make the doctrine of common intention applicable, it must be shotun that the accused had shared uith the actual perpetrator of the crime a common intention to pursue a specific unlauful purpose u-thich led to the commission of the offence.. .an unlauful common intention does not implg a pre-arranged plan. Common intention mag be inferred from the presence of the accused persons, their actions and the omlssion of ang of them to disassociate himself from the assault.

The 1"r appellant, together with the 3 appellants, attacked the deceased persons and the victims at around 7:00am. The evidence of the prosecution shows that the appellants chased the victims with intentions of killing them too and when 20

the victims made an alarm and people responded to the alarm, the attackers ran away. This action, in our view, was sufficient enough to prove common intention.

It was held in Klaegerwa and Another v. Uganda (supra) that common intention may be inferred from the presence of the accused persons, their actions and the 5 omission of any of them to disassociate himself from the assault. The <sup>1</sup> appellant was with the 2"d, 3'd and 4th appellants when the attack was made ano at no point did the lst- 4th appellants try to stop the assault. This, in our view, amounts to common intention to commit an offence'

We therefore find that the 2"d, 3.d and 4th appellants participated in the 10 commission of the said offences. we find no reason to fault the learned trtal Judge's finding of guilt of the 2nd, 3'd and 4th appellants.

on ground 2 the learned trial is faulted for meting out harsh and excessive sentences. That he did not take into account the appellants' mitigating factors that they were first time offenders and that the learned trial judge appeared to

15 have exclusively considered the aggravating factors.

While sentencing A2, A3, and A4 the record shows at pages 47 and 48 that the learned trial judge considered the period they had spent on remand of 5 years and Smonths and other mitigating factors such as A2 and A3's young age, them being first offenders, 44 being aged 40 years, had 12 children and a polio victim

20 and had spent 5 years and 5 months on remand.

In light of the above, we are of the view that that the learned trial judge considered the appellant's mitigating factors before sentencing them and we finc no reason to fault him.

we are however alive to the need to ensure consistency and uniformity in 5 sentencing, The Supreme Court has in Mbunya Godfrey V Uganda fSupra), emphasized the need to maintain consistency while sentencing persons convicted of similar offences. court stated that "we ore aliue to the fact that no ILUO cimes are identical. Hotteuer, we should try as much as possible to haue consistencA in sentencing. "

- 10 Guldellne 6 (cf of Judicature (sentenclng Guldellnes for courts of Judicaturef (Practicef Directions 2oo3 provides that every court shall when sentencing an offender take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances - 1s In Adupa Dickens vs uganda, c. A.c. A. No.267 of 2017, where this couri upheld the sentence of 35 years imprisonment and held that it was neither harsh nor manifestly excessive to warrant the intervention of the Appellate court.

In Semanda chrlstopher and another ver8us uganda cAcA 77 of 2O1O, the court maintained the sentence of 35 years on the appellant who had been 20 convicted of murder.

In light of the above decisions on uniformity and sentencing, we accordingly set aside the sentences passed by the High court for being harsh and excessive except on count 3 where the 3 years were taken to have been served. We shall proceed to sentence the appellants afresh pursuant to Section 11 of the Judicature Act, which confers this court with the same powers as the High Court on counts 1,2 and 4.

Having re-considered both the aggravating and mitigating factors of the case as presented before the trial court as already set out in this judgment, and taking into account the period the appellants spent on remand of 5 years and 5 months and the decisions of the courts of Judicature for similar offences we sentence

the 2"d, 3.,i and 4th appellants as follows;

For A2, A3 and A4, we sentence each of them to 40 years' imprisonment in respect of Counts 1 & 2. Since the 3 years imprisonment on Counts 3 were treated as already served at the time of sentencing for A2, A3 and A4, we maintain the sentences on count 3. On count 4, A2, A3 and A4 shall each serve 1 year and 5 months imprisonment.

The sentences for all; A1, A2, A3 and A4 shall run concurrently and to be served from the date of Conviction.

This appeal succeeds in part as regards sentences in the above terms but fails as relates to conviction. 20

We so order,

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$$$ $\mathcal{H}_{jj}$ Telmont $\ldots\ldots\,2022$ Delivered at Jinja this ........... .......... day of .....

$\varphi$

#### Elizabeth Musoke

JUSTICE OF APPEAL

**Cheborion Barishaki**

JUSTICE OF APPEAL

Hellen Obura

JUSTICE OF APPEAL

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