Ssebuwufu & 7 Others v Uganda (Criminal Appeal 158 of 2019; Criminal Appeal 191 of 2019) [2021] UGCA 211 (25 October 2021)

#### THE REPUBLIC OF UGANDA.

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

*(Coram: Egonda-Ntende, Bamugemereire, Madrama, JJA)*

## CONSOLIDATED CRIMINAL APPEALS NOs 158 AND 191 OF 2019

1. SSEBUWUFU MUHAMED

# 2. KAYIZA GODFREY alias GODI

- 3. MIRAMBE PHILIP - 4. LWANGA STEPHEN - 5. TASINGIKA PAUL? .................................... - 6. KITAYINBWA YOWERI - 7. SSENTONGO DAMASSENI - 8. ODUTU SHABAN alias GOLOLA

#### **VERSUS**

# UGANDA} ....................................

(Appeal from the decision of the High Court at Kampala; the Hon. Lady Justice Flavia Senoga dated 24<sup>th</sup> June 2019 in High Court Criminal Session $20$ Case No 0493 of 2015)

## JUDGMENT OF COURT

The appellants in count 1 were indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act in that it was alleged that all the accused persons (8 in number) and others still at large on 21 October $25$ 2015 at Pine Car Bond along Lumumba Avenue in Kampala district murdered Betty Donah Katushabe (the deceased). Secondly, and in count 2 all the appellants were charged with aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code Act. It was alleged that the 8 accused persons and others still at large, on the same date and at the same place, robbed $30$ the deceased of her mobile phone particulars of which are given and at or immediately after the said robbery, used a deadly weapon to wit cutlasses, commonly known as machetes or pangas and sticks on the said deceased.

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$\mathsf{S}$

In count 3, the accused persons were charged with kidnap with intent to $\overline{5}$ murder contrary to sections 243 and 242 of the Penal Code Act. The prosecution case was that the accused persons and others still at large on 21st of October 2015 at Bwebajja, Wakiso district kidnapped the deceased in order that the said deceased might be murdered. The learned trial judge convicted the accused persons as charged on all the 3 counts. For the $10$ offence of murder, each of the accused persons were sentenced to 40 years' imprisonment. For the offence of aggravated robbery, each of the accused persons were sentenced to 20 years' imprisonment and ordered jointly and severally to pay compensation of Uganda shillings 100,000,000/= to the family of the deceased. Thirdly on the offence of kidnap with intent to $15$ murder, each of the accused persons were sentenced to 30 years' imprisonment and the sentences were to run concurrently. A 4 whose name appears as the fourth appellant was sentenced to 7 years' imprisonment on each count with the period spent on remand to be deducted. A 4 whose name appears as the fourth appellant did not appeal but his name appears $20$

on record for purposes of numbering in the submissions and to avoid confusion.

The first, second, third, fifth, sixth, seventh and eighth appellants were aggrieved by the decision and appealed to this court on 2 separate memorandums of appeal. The sixth and seventh appellants Mr. Kitayimbwa $25$ Yoweri and Ssentongo Damasseni appealed on the following grounds:

- 1. That the learned trial judge erred in law and in fact when she convicted the appellants on the counts of murder, kidnap with intent to murder and robbery and sentenced the appellants to 40 years' imprisonment based solely on circumstantial evidence which was harsh and unconscionable. - 2. That the learned trial judge erred in law and in fact when she imposed an order of compensation of Uganda shillings 100,000,000/= when there was no basis and justification hence prejudicing the appellants and occasioning a miscarriage of justice.

- 3. That the learned trial judge erred in law and in fact when she misdirected herself by making findings that are not supported by available evidence hence occasioning miscarriage of justice to the appellants. - 4. The learned trial judge erred in law and in fact when she failed to properly evaluate the evidence on record in regard to the offences of murder, kidnap and aggravated robbery in respect of the appellants without any prosecution witnesses identifying and putting them at the scene of crime hence leading to a miscarriage of justice.

The appellants pray that the appeal is allowed and the conviction quashed and sentence and compensation orders set aside. 15

On the other hand, the rest of the appellants appealed apart from the fourth appellant whose name appears for purposes of consistency in numbering. Secondly, the first appellant was dropped out of the amended memorandum of appeal and filed a separate memorandum of appeal. The appellants in the following amended memorandum of appeal are the second appellant, the third appellant, the fifth appellant and the eighth appellant on the following grounds of appeal:

- 1. That the learned the trial judge erred in law and fact when she convicted the appellant of the offence of murder without proof of all the essential ingredients of the offence beyond reasonable doubt. - 2. The learned trial judge erred in law and fact when she convicted the appellant of the offence of aggravated robbery without proof of all the essential ingredients of the offence beyond reasonable doubt. - 3. The learned trial judge erred in law and fact when she convicted the appellant of the offence of kidnap with intent to murder without proof of all the essential ingredients of the offence beyond reasonable doubt. - 4. The learned trial judge erred in law and fact when she convicted the appellants based on the doctrine of common intention for the offences indicted.

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$\mathsf{S}$

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- 5. The learned trial judge erred in law and fact when she convicted the appellants without taking into account their alibis as having been destroyed whereas not. - 6. The learned trial judge erred in law and fact when she imposed a manifestly harsh, illegal and excessive sentences given the circumstances of the case. - 7. The learned trial judge erred in law and fact when she passed an excessive compensation order of Uganda shillings 100,000,000/=.

The appellants pray that this court allows the appeal, quash the conviction and set aside the sentence. The first appellant appeals to this court on the following grounds of appeal:

- 1. The learned trial judge erred in law and fact when she convicted the appellant with murder without proof of all the ingredients of the offence beyond reasonable doubt. - 2. The learned trial judge erred in law and fact when she convicted the appellant with aggravated robbery without proof of all the ingredients of the offence beyond reasonable doubt. - 3. The learned trial judge erred in law and fact when she convicted the appellant with kidnap with intent to murder as an additional offence to murder and not proof of all the ingredients of the offence beyond reasonable doubt. - 4. The learned trial judge erred in law and fact when she failed to properly evaluate the evidence and came to a wrong conclusion that the appellant had a common intention with other co-accused to commit the offences indicted. - 5. The learned trial judge erred in law and fact when she failed to properly evaluate the evidence and came to a wrong conclusion that the alibi of the appellant had been destroyed by prosecution. - 6. The learned trial judge erred in law and fact when she based her decision on the contradictory evidence of PW1, PW2, PW3 to convict the appellant.

$\overline{4}$

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$\overline{5}$

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- 7. The learned trial judge erred in law and fact when she failed to state the reasons for departing from the opinion of the assessors in her Judgment. - 8. In the alternative but without prejudice to the above, the learned trial judge erred in law and fact when she imposed a harsh and excessive sentence against the appellant. - 9. In the alternative but without prejudice to the above, the learned trial judge erred in law and fact when she imposed an excessive compensation order without a factual basis.

The first appellant prays that the appeal is allowed and the conviction quashed and sentence set aside. $15$

At the hearing of the appeal learned counsel Mr. Henry Kunya appearing jointly with learned counsel Ms Susan Wakabala, learned counsel Ms Sylvia Namawejje Ebitu and learned counsel Evans Ochieng represented the first Appellant on private brief. Learned counsel Mr. Ramadhan Akiiki holding brief for learned counsel Mr. Kiyingi Emmanuel represented A6 and A7 on private brief. Learned counsel Ms Susan Wakabala also represented A2, A4, A3, A5 and A8 on state brief. Learned Counsel Ms Nabasa Caroline Hope Senior Assistant DPP represented the respondents. The appellants attended court via video link from their prison homes due to the Covid 19

pandemic public health regulations. $25$

The court was addressed in written submissions.

# The appeal by the sixth and seventh Appellants

The sixth and seventh appellants counsel submitted on the law that need not be repeated here. We will straightaway consider the submissions on the grounds of the appeal. The sixth and seventh appellants counsel argued grounds 1, 3 and 4 concurrently because they relate to the failure by the trial judge to properly evaluate the evidence on record which led according to him to the erroneous conviction of the appellants on all the 3 counts. Grounds 1, 3 and 4 of the appeal are as follows:

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- 1. That the learned trial judge erred in law and in fact when she $\mathsf{S}$ convicted the appellants on the counts of murder, kidnap with intent to murder and aggravated robbery and sentenced the appellants to 40 years' imprisonment based solely on circumstantial evidence which was harsh and unconscionable. - $2$ . The ....

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- 3. The learned trial judge erred in law and in fact when she misdirected herself by making findings that are not supported by available evidence hence occasioning miscarriage of justice to the appellants. - 4. The learned trial judge erred in law and in fact when she failed to properly evaluate the evidence on record in regards to the offences murder, kidnap with intent to murder and aggravated robbery in respect of the appellants without any prosecution witnesses identifying and putting them at the scene of crime hence leading to the miscarriage of justice. - Counsel submitted that the prosecution failed to prove the participation of $20$ the sixth and seventh appellants in the commission of the 3 offences. That the appellants were not put at the scene of the crime at the material time the alleged unlawful acts were committed. The prosecution is required to prove all the ingredients of the offence and any doubt should be resolved in favour of the accused. Further the court should not convict an accused $25$ person on the basis of the weakness in the evidence of the accused but on the strength of the prosecution evidence. The appellants were not identified by any prosecution witnesses. Counsel submitted that the summary of the trial judge's findings on which the learned trial judge convicted the appellants on all the 3 counts should be subjected to thorough scrutiny. The $30$ appellants were convicted on the ground of common intention with the rest of the accused persons and there was circumstantial evidence placing them at the scene of the crime. Further, their subsequent disappearance indicated that they were not innocent. The learned trial judge erroneously relied on the doctrine of common intention and circumstantial evidence to 35 convict the appellant on all the 3 charges. Under section 20 of the Penal Code Act as considered in P. C. Ismail Kisegerwa and another v Uganda;

$\mathsf{G}$

Court of appeal Criminal Appeal No 6 of 1978 and recently in Simba Paul v $\mathsf{S}$ Uganda; Court of Appeal Criminal Appeal No 23 of 2012. In those cases, reliance on the doctrine of common required proof that the accused and shared with the actual perpetrator of the crime, a common intention to pursue a specific unlawful purpose which led to the commission of the offence. Further, common intention does not imply a prearranged plan. $10$ Common intention may be inferred from the presence of the accused persons, their actions and omissions of any and failure to dissociate themselves from the crime.

The appellants contend that they never shared a common intention with the perpetrators of the offence in issue which according to the prosecution 15 included the first appellant Mr. Sebuwufu Mohammed and Kiwanuka alias Golola. It was held in the judgment that the prior agreement between the accused persons was implied from the act of picking the deceased from her home under the guise of settling the matter. There is no evidence on record which shows that the appellants were part of the team who picked the $20$ deceased from her home.

Further none of the witnesses testified about the participation of the sixth and seventh appellants. Further as found by the learned trial judge, not a single witness identified the sixth and seventh appellants.

In addition, the learned trial judge relied on the uncorroborated evidence of $25$ PW 26 and exhibits of the phones of A1, A5, A6 and A7 exhibits P 25A – P $\,$ 25D. These telephone data printouts indicating the areas around the crime scene on 21st of October 2015 where the phone calls could be traced but an examination of exhibit P 26 and exhibit P 57 do not put the appellants at the scene of crime. The contacts of the appellants indicated in the forensic 30 report do not include that of the sixth and seventh appellants as being at the scene of the crime at the material times. The appellants defence is that they were not at the vicinity of the crime and therefore the doctrine of common intention does not apply to the facts.

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- The sixth and seventh appellants counsel further submitted that the learned $\mathsf{S}$ trial judge erroneously relied on circumstantial evidence to convict the appellants. Counsel cited Simoni Musoke v R [1958] (EA) 715 for the proposition that the court must find before deciding on conviction that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than $10$ that of guilt. Further, before drawing any inference of guilt, the court must make sure that there are no coexisting circumstances which weaken or destroy the inference of guilt of the accused (see Mbaziira Siragi and another v Uganda; Supreme Court Criminal Appeal No 7 of 2004.) - The appellants counsel submitted that the circumstantial evidence relied $15$ upon by the learned trial judge was the conduct of the appellants after the death of the deceased and the evidence of PW 25 as well as the telephone printouts which placed to the accused persons within the surrounding areas of the crime scene. - The sixth and seventh appellants counsel submitted that the learned trial $20$ judge erroneously based her conviction on the conduct of the appellants after the occurrence of the offence in issue. This evidence was not corroborated (see Kooky Sharma Another v Uganda; Supreme Court Criminal Appeal No 44 of 2002 and Bogere Moses and another versus Uganda; Supreme Court Criminal Appeal No 10 of 1996). The court must not $25$ base itself upon isolated evaluation of the prosecution evidence alone but must evaluate the evidence as a whole. There was no evidence on record of an effort to trace the appellant's whereabouts and that they could not be traced. All the other officers who participated in the investigation save for - PW 25 never testified to the effect that the appellants were in hiding and 30 their whereabouts were unknown. Further, counsel submitted that it was natural for the appellants to keep away from the crime scene (Pine Car Bond) as the situation normalised because there could be threats of mob justice by members of the deceased's family and the general public. It was not proved by the prosecution that the appellants were summoned by the 35 police to make statements in respect of the charges in issue and that they

$\overline{8}$

declined to corroborate the fact that the disappearance was intentional. In $\mathsf{S}$ the premises, the sixth and seventh appellants counsel submitted that it was erroneous for the learned trial judge to solely rely on uncorroborated circumstantial evidence of PW 25. The other circumstantial evidence was the call was evidence was exhibited as separate D57 and the P 26, telephone printouts which indicate the location of A1 and A7 as being within the $10$ surrounding areas of the crime scene on 21st October, 2015. Counsel submitted that exhibit P 26 and exhibit P2 57 did not place the appellants within the surrounding areas of the crime on 21st of October 2015. In the premises, the learned trial judge wrongly convicted the appellants without any evidence in corroboration and the court be pleased to quash the $15$ conviction and acquit the appellants.

Further, the learned trial judge failed to evaluate the essential ingredients of the offence of murder as no malice aforethought was proved, apart from the fact that the sixth and seventh appellants were never put at the scene of the crime. For the second and third counts, the prosecution failed to prove the key ingredient of participation of the appellants.

In reply, the respondents counsel submitted that the learned trial judge properly evaluated the evidence on record and came to the correct decision. He submitted that the law of common intention applies to the sixth and seventh appellants because they were among the 6 strong men "kanyamas" $25$ who after the commission of the crimes escaped and went into hiding according to the testimony of PW25. Their disappearance soon after the commission of the crime is inconsistent with their innocence. When given a chance to defend themselves, the opted to remain silent so that the learned trial judge was privy to only prosecution evidence against them which she $30$ properly evaluated. In the premises, the respondent supported the findings of the learned trial judge and invited the court to disallow the grounds of appeal.

Appeal of the second, third, fifth and eighth appellants.

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- Susan Wakabala, counsel for the appellants submitted that with regard to $\mathsf{S}$ the offence of murder, as far as ground 1 of the appeal is concerned, the ingredient of whether the death was unlawfully caused was not proved. Further that, it was erroneous for the learned trial judge to find that the injuries inflicted upon the deceased conclusively proved that they led to her - death. The post mortem report exhibit P1 and evidence of PW4 shows that $10$ there were other possible causes of death which included a fatty liver, multiple fibroids in the uterus. Further, neither the deceased's lungs nor kidneys were subjected to any microscopic examination to rule out other possible causes. PW4 further testified that he did not give explanations as to how the blunt trauma led to the death of the deceased but he gave the $15$ cause. In the premises, the death could have been caused by other natural causes and not exclusively as a result of the injuries inflicted upon the

deceased.

On the second ingredient of whether the death was caused with malice aforethought, the testimony of PW 4 is that there were no fractures on the $\overline{20}$ skull of the deceased and no injuries whatsoever to the brain. The deceased body had multiple body injuries but such injuries could not in the very least be deemed to have been intended to cause her death in terms of section 191 of the Penal Code Act. No offensive weapon was exhibited or described by any prosecution witnesses. It was therefore erroneous for the learned trial $25$ judge to impute that there was an intention to kill the deceased or that the assailants ought to have known that the injuries would most likely result into her death.

Further, counsel for the second, third, fifth and eighth appellants submitted that the learned trial judge considered the evidence of PW1 who found the 30 deceased seated down, barefooted with torn clothes and wounds on her face and legs. Secondly the evidence of PW2 who heard a bang like a slap and the deceased screaming and evidence of PW3 who also heard the deceased screaming. Counsel relied on Nanyonjo Harriet & another v Uganda Supreme Court Criminal Appeal No 24 of 2002 where it was held 35 that the court is obliged to consider if death was a natural consequence of

- the act that caused the death and if the accused foresaw death as a natural $\overline{5}$ consequence of the act. Further, the appellants dispute the finding that they participated in the assault of the deceased. In the very least counsel prays that the conviction of murder should be substituted with one of manslaughter. - The appellant's counsel further submitted that on the issue of participation $10$ of the second appellant, the learned trial judge relied on the evidence of PW3. However, PW 3 testified that the second appellant was present at the scene and that he participated in beating him but nowhere does he state that he saw the appellant assaulting the deceased. This was not evidence - that the second appellant participated in assaulting the deceased and he $15$ ought to be acquitted of the charges against him and set free.

With regard to the participation of the third appellant, the learned trial judge found that the third appellant was one of the people identified as among those who assaulted the deceased at Pine bond on 21st October 2015 by PW

- 3. The third appellant refuted these claims in his defence and he denied ever $20$ seeing or assaulting the deceased. He further stated that the third appellant assaulted him. The appellants counsel submitted that being at the scene of the crime does not necessarily mean that the third appellant participated in assaulting the deceased. In the premises, she prayed that the court finds that the third appellant's participation was not proved beyond reasonable $25$ - doubt.

With regard to the participation of the fifth appellant, it was alleged by the prosecution that he was hired by the first appellant for surveillance and to report a false case of theft by the deceased so as to cause her arrest. It was further alleged that he participated in torturing her which resulted in her 30 death. The prosecution did not adduce any evidence to support the allegations and it is not true that the first appellant hired the fifth appellant to lodge a case but it is clear from the evidence of the fifth appellant that he was contacted by DPC Aaron Baguma who introduced him to one Kiwanuka alias Damage and one defective corporal Tumusiime **Annet** with 35 instructions that this should proceed to Bwebajja to arrest the deceased. They went to the scene on 1seventh October, 2015 and bounced and is were $\overline{5}$ instructed to go back again on 21st of October 2015. The deceased was arrested and the circumstances under which was he brought to the Pine Car Bond are detailed in the testimony. He handed over the deceased to one Kiwanuka Sam alias Damage and the left for his usual work. This is supported by the forensic report exhibit P 57 shows that he left Buganda $10$ Road at around 10 AM and went to the Ministry of health and later to Fairway Hotel. At no time did he assault the deceased and none of the prosecution witnesses identified him as the person involved in the torture of the deceased. This evidence is corroborated by the testimony of PW 23. Mr Kiwanuka vanished and the state decided to implicate other persons. $15$

# Participation of the eighth appellant.

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The appellant's counsel submitted that the learned trial judge relied on the evidence of PW 3, who identified him among the people who assaulted the deceased and also assaulted him. However, he did not expressly state that he saw the appellant hit the deceased. His testimony is that the appellant beat him.

# Ground 2 of the appeal of the second, third, fifth and 8 appellants.

With regard to the offence of aggravated robbery, the appellants counsel submitted that the prosecution failed to prove the element of theft of property.

Counsel contended that the learned trial judge relied on the evidence of PW 7 who testified that when they reached the bond, the deceased was waiting for the driver who had her phone. The issue of possession of the phone is confirmed by PW1 who stated that he called the deceased and talked to her. Because the phone has not been accounted for, the reasonable conclusion is that it was stolen and the learned trial judge found that theft had been proved.

On the use of violence, the learned trial judge relied on the testimony of our PW1 who testified that he found the deceased surrounded by Kanyamas with

- her clothes torn and the same was confirmed by PW2 and PW 4. Evidence $\mathsf{S}$ of PW 23 shows that the deceased made calls between 9:10 AM and 4:10 PM. PW1 interacted with the deceased who never mentioned to him her phone as having been stolen. PW 3 interacted with the deceased on her way to and from CPS. In the premises, the ingredient of theft was never proved. - On the use of a deadly weapon, the learned trial judge relied on the evidence $10$ of PW 24 who was declared a hostile witness by the state and later cross examined on the contents of his statement. The learned trial judge found that the evidence could not be relied upon. Counsel further prayed that the evidence of PW 24 should be disregarded. - $15$ On the question of participation, counsel for the appellants submitted that there is no evidence on record pointing at any of the appellants having stolen or deprived the deceased of her phone.

Ground 3 of the appeal of the second, third, fifth and 8 appellants.

Appellants counsel submitted that prosecution failed to prove the offence of kidnapping with intent to murder against the appellants. The ingredients $20$ of the offence were considered in Mbaguta Ronald & Another v Uganda; Criminal Appeal No 61 of 2018 which cited with approval Mukombe Moses **Bulo v Uganda (1998 – 2000) HCB page 1.** The ingredients include taking away or seizure by force or fraud of a person. Secondly, the specific intent to cause the victim to be murdered or put in danger of being murdered which $25$ can be presumed if the victim has not been seen or heard of within a period of 6 months.

Kidnapping is defined as taking away or asportation of a person against that person's will usually to hold the person in false imprisonment or confinement without legal authority. It may also be done for ransom or for furtherance of another crime

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The appellant's counsel submitted that the learned trial judge found that the first appellant instructed the fifth appellant to lodge a case of theft of a vehicle at CPS (Central Police Station) and the reference was used to have

the deceased arrested. She submitted that the true account was that the $\mathsf{S}$ deceased was lawfully arrested by 3 police officers with the intention of taking her to the CPS Kampala and it was the deceased who told them to take her to Pine Car Bond. Further PW3 testified that when he went to rescue the deceased, he found a group of people shouting: "let her give us our money". The person who reported the case, one Kiwanuka, has since $10$ disappeared. Prosecution failed to prove the ingredient of seizure by force considering that it started as a lawful arrest by the police and only fell short of their duties when they handed over the deceased to an unlawful authority. On the second ingredient of intent to cause harm, the police arrested the deceased and handed her over to her creditor because she $15$ requested for it for purposes of negotiation.

### Ground 4

The second, third, fifth and 8 appellants counsel submitted that it was the evidence of PW7 that after arresting the deceased, their destination was the Central Police Station. However, the deceased begged to be taken to Pine $\overline{20}$ Car Bond to settle the matter. Prosecution was never able to produce evidence of the accused persons forming a common intention or agreement to perform an unlawful act. Appellant number 5 reported the matter to police which caused the arrest of the deceased and the one who instructed him to report the matter was Kiwanuka. There is no evidence about the $25$ meeting of minds by the appellants or of any particular unlawful act they agreed to do against the deceased.

#### Ground 5

Counsel submitted that each of the appellants had a defence as to what happened on that day and the events of the day. With regard to appellant number 2, he gave a coherent account of how he was arrested from Kasubi and later transported to CPS where he found several accused persons. The officers demanded Uganda shillings 2,000,000/= from him which he did not have whereupon he was lumped up with the other persons in the cell and taken to court. His alibi was not destroyed by the prosecution.

- As far as appellant number 3 is concerned, he admitted that he is a car $\overline{5}$ broker but clearly indicated that he does not work with the first appellant. He gave a clear narration of his movements on 21st October 2015 and denied ever seeing or assaulting the deceased. His alibi was not destroyed by the prosecution. - Grounds are $6$ and $7$ $10$

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the 2 grounds against sentence. On count 1 the appellants were sentenced to 40 years' imprisonment for the offence of murder. On count 2 of aggravated robbery, they were sentenced to 20 years' imprisonment and in addition were ordered to pay compensation of Uganda shillings $100,000,000/$ to the family of the deceased under section 286 (4) of the Penal Code Act. On the count of kidnap with intent to murder, the appellants were sentenced to 30 years' imprisonment. Counsel submitted that while an appropriate sentence is a matter for the discretion of the sentencing judge, the court would normally only interfere if the sentence is illegal, or is manifestly so excessive as to amount to an injustice.

The second, third, fifth and eighth appellant's counsel submitted that for the offence of murder, the 40 years' imprisonment imposed by the learned trial judge was not only harsh but excessive. Further, that the learned trial judge ignored mitigating factors like the fact that the appellants were first offenders, the appellant was 36 years old at the time of sentence and $\overline{25}$ relatively young, and other binding decisions of the Court of Appeal that offer quidance on the appropriate range of sentences to be imposed. In Rwabugande versus Uganda: Supreme Court Criminal Appeal No 25 of 2014. the High Court had sentenced the appellant to 35 years' imprisonment for murder and this court reduced the sentence to 21 years on account of the $30$ age of the appellant at 24 years and the need for his reformation and reintegration in society. In Kamya Abdullah and 4 Others v Uganda SCCA No 24 of 2015, the Supreme Court reduced a sentence of 30 years' imprisonment to 18 years in a conviction of murder. In Ariko Francis v Uganda; Court of Appeal Criminal Appeal No 241 of 2011 the court found that 35 a sentence of 17 years' imprisonment was appropriate for murder. In **Angue**

Robert v Uganda: Court of Appeal Criminal Appeal No 48 of 2009, a sentence $\overline{5}$ of 20 years' imprisonment was found to be excessive and reduced to 18 years' imprisonment. Counsel prayed that the sentence for murder be reduced to 15 years' imprisonment. In the alternative the conviction be substituted with manslaughter and the appellants sentenced to 8 years' imprisonment for each of the appellants.

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Aggravated Robbery

The appellants had been sentenced to 20 years' imprisonment. In **Uganda v** Waiswa Henry and Others: HC Cr. Session Case No 420 of 2010, on a count of robbery, the same learned trial judge sentenced the convicts to 4 years' imprisonment and awarded compensation of 260,000/- shillings for several 15 items valued at 700,000/- compared to the 20 years' imprisonment she meted out on the appellants in this appeal. She invited the court to set aside the sentence of 20 years' imprisonment and substitute it with a sentence of 2 years' imprisonment appropriate and sets aside the award of Uganda shillings 100,000,000/- and substitutes therefore an award of compensation $20$ of Uganda shillings 300,000/-.

With regard to the offence of kidnap with intent to murder, learned counsel submitted that after the offence of murder has occurred, the intention is clear and kidnap with intent to murder cannot be sustained. The sentence of 30 years' imprisonment imposed by the learned trial judge was harsh and excessive and a sentence of 5 years' imprisonment would be deterrent enough to meet the ends of justice.

In the premises, the second, third, fifth and eighth appellants counsel prayed that the court be pleased to quash the conviction and set aside the sentences imposed as well as to set aside the order of compensation. In the alternative, the court ought to substitute the conviction for murder with that of manslaughter and impose an appropriate sentence. If the court is pleased to maintain the charge of murder, it be pleased to find that the sentences imposed are harsh and excessive and substitute it with a more appropriate sentence considering the circumstances of the case.

- In reply, the respondent's counsel submitted jointly on the appeal of the first $\overline{5}$ appellant, the second appellant, the third appellant, the fifth appellant and eighth appellant. The first appellant however filed a separate memorandum of appeal as well as filed separate submissions and his appeal will be considered separately. - On the first ground as to whether the death was unlawfully caused, the $10$ respondents counsel submitted that the death was not accidental, excusable or authorised by law. The unlawfulness of the death is traceable from the moment the deceased was kidnapped from her home in the morning of 21st of October 2015. The evidence of PW7 was that the deceased - was found at her house and she was going to wash her clothes. She was $15$ not in a near death situation and was in good health. The evidence of PW 3 is that she found the deceased alive but very weak and bleeding as evidenced by bloodstains traced to the chair and walls where she was assaulted from and the car which had been used to pick her from her home - and later used to drive her to the police station by the fourth appellant and $20$ back to the scene. The gravity and nature of her injuries are also confirmed by the post-mortem examination of PW 4 and the report exhibit P1. The learned trial judge rightly found that the prosecution proved this ingredient of unlawfulness and this court ought to uphold the same.

#### Whether malice aforethought was proved $25$

The respondents counsel submitted that the learned trial judge satisfactorily dealt with this issue. This is based on the heinous act and the manner in which it was executed. The nature of injuries that the deceased sustained were not common assault or grievous arm. The post mortem report revealed multiple, sporadic injuries all over her body and serious 30 internal bleeding leading to the death of the deceased. PW1 found the deceased weak, barefooted, with torn clothes and had bruises and was surrounded by strong men (the appellants). The witness witnessed the first appellant kicking the deceased in the breast and her private parts and instructed others to do the same. PW 3 testified that he experienced the 35 brutal wrath of the appellants when he went to rescue the deceased. PW2

gave testimony about how a caller threatened the deceased with death if he $\mathsf{S}$ did not receive his money. The caller talked about Uganda shillings 9,000,000/= which is the exact amount the deceased owed to the first appellant. The respondent's counsel further submitted that the actions of the appellants were preceded by a concerted plan which commenced with reporting a false theft case, surveillance of the home of the deceased and $10$ the eventual kidnap. Counsel further submitted that the requisite intention can be implied from the overt acts of the appellants (see **Bwire v Uganda** [1965] EA 606).

# **Participation**

As far as participation is concerned, the respondents counsel submitted $15$ that this ingredient cuts across all the 3 counts and addressed the issue together with submissions of the appellants on the defence of alibi and the element of common intention.

Ingredients of aggravated robbery

- $\overline{20}$ Theft of the phone. The respondent's counsel submitted that prosecution proved that at the time of the deceased arrival at Pine Car Bond, she was in possession of a phone. PW 7 heard the deceased talking to the first appellant about the money she owed him and by the time the witness left the Pine Car Bond, the deceased had intimated that her phone was with the - driver outside. The only driver on record is appellant 5 and who is the same $25$ person the first appellant was constantly in touch with as evidenced by the phone printouts. It is conceded by the appellant's counsel that the deceased was in possession of the phone and was using it to communicate with those she wanted. The respondent's counsel contends that it is speculation to submit that the phone could have been misplaced at the police when there 30 is clear evidence about the condition of the deceased at the time she was supposedly taken to the police in a care drive by the fourth Appellant and who returned her to the pine bond and the second time she was picked by the police. The deceased was already bleeding internally according to the post-mortem report. The phone was the least of her worries. He submitted 35

- that in the circumstances, the circumstantial evidence was the best $\mathsf{S}$ evidence (see Thiaka v Republic [2006] EA 362). Further, that the circumstances surrounding the case implicate the entire team that was involved in the unlawful purpose that commenced with kidnap, robbery and murder under the direct instructions and active participation of the first appellant. - $10$

# The element of violence

The Respondents counsel submitted that the numerous calls are between 9: 10 AM and 4: 10 PM made by the deceased were calls for help following the torture she suffered at the hands of the appellants. Counsel invited the court to consider the testimony of PW4, PW2 and exhibit PE1 which prove demonstrate that the ingredient of violence was proved beyond reasonable doubt

# The use of deadly weapons or causing death or grievous harm

The respondent's counsel submitted that the death was caused in the process of the attack and there is no need to look for a deadly weapon in $20$ the prosecution evidence. The brutal attack on the victim lasted over 12 hours it caused her death. Had she not died, she would have demanded her phone from her assailants.

# Ingredients of kidnap with intent to murder

The respondent's counsel submitted that the evidence shows that prior to $25$ the incident, the deceased was a customer of the first appellant and owed the first appellant Uganda shillings 9,000,000/=, being the balance for the vehicle she purchased from him. The debt became the basis for falsely accusing the deceased of theft. The testimony of PW 25 was that the fifth appellant opened up a file at the police station on the instructions of the 30 first appellant and the police acting on the instructions of the first appellant started surveillance of the home of the deceased. The fifth appellant later on led a team including PW 7 to the home of the deceased. The vehicle that the fifth appellant used to pick the deceased was UAP 155 T and it was the

same vehicle that transported the deceased and PW 3 in the company of the $\mathsf{S}$ 8 appellant when it was being driven by the fourth appellant after the assault on the deceased. PW 7 testified that when they reached the home of the deceased, the fifth appellant went through a small gate and returned to confirm that she was around. In total the deceased was driven away from her home at the pretext of taking her to the police and the whole transaction $10$ became fraudulent too because the period within which to pay the balance of her indebtedness had not yet elapsed.

### On the ingredient of intent to murder

- The respondent's counsel submitted that this ingredient cannot be divorced from the rest of the events. This included surveillance of the victim's home. $15$ a fictitious police report on the car theft, getting police escorts after misrepresentation of facts, taking the deceased captive to a place which is not gazetted, compromising PW 7 for her to leave the place and the brutal torture that led to the death of the deceased. Further the evidence shows that the perpetrators actions confirmed what they had set out to do which $20$ was to cause the deaths of their captive in case she did not clear the debt. The burden was on the appellants to prove that they did not have contemporaneous intention to murder the deceased or put her in danger of being murdered. Counsel relied on **Godfrey Tinkamalirwe versus Uganda: Supreme Court Criminal Appeal No 5 of 1998** that the necessary intent can $25$ - be inferred by the trial court if the victim had not been seen for a period of 6 months or more. She submitted that the same principle applies where the victim died.

### Grounds 4 & 5 of the appeal of the second, third, fifth and 8 appellants.

#### Participation, alibi and common intention $30$

The Respondents counsel submitted that participation of each of the appellants is a demonstrated in the relevant facts and events of 21st of October 2021 and the evidence of PW1, PW 2, PW 5 and PW 24, Counsel reiterated earlier submissions on the events of 21st October 2021. In summary, the first appellant assaulted the deceased and requested the

- second appellant third appellant, fourth appellant, sixth appellant, seventh $\mathsf{S}$ appellant and 8 appellants who were strongmen to do likewise. The first appellant was positively identified during the identification parade. The fifth appellant was also positively identified. PW2 talked to the deceased on the phone and the issue was the Uganda shillings 9,000,000/= owed to the first appellant. PW3 and became a victim of the brutality of the appellants. The - $10$ first appellant called one Golola including the second appellant and 8 appellants who came from where the deceased was being held and that is where they took PW3. The second appellant punched PW3 on instructions of the first appellant. PW9 also witnessed this. Later on, PW3 and the - deceased were driven by the fourth appellant in motor vehicle number UAP $15$ 155T to the Central Police Station and returned to the torture scene though PW3 jumped out of the car. appellant number 8 was in the same vehicle seated in the co-driver's seat and is the same person who threatened PW 3. PW 12 also identified the eighth appellant as part of the group at the Pine - bond. PW 9 testified that at the time of picking PW 3 and the deceased, the $20$ first appellant was at the scene of the crime and is the person who ordered the fourth appellant drove them to CPS. The same vehicle was the one driven by the fifth appellant as he transported the deceased from her home to the bond. The fifth appellant was identified by PW 7. The fifth appellant is the one who gave PW 7 money to leave the bond. Further the call log shows $25$ - that he was in constant communication with the first appellant during the whole ordeal of the deceased. The phone line number 0752198368 was the one the first appellant used to communicate threats to PW2. - The respondent's counsel submitted that the eyewitness accounts corroborated the call data that located the appellants at the crime scene. 30 Counsel referred the court to the details of the call log and the timelines. She submitted that the call log provides credible circumstantial evidence to the rest of the prosecution evidence in terms of the appellants being at the scene of the crime. - Further the testimonies of the appellants, given not on oath were lies as the 35 call log placed the appellants at the scene of crime destroying the alibi

defence. Further the first appellant at the end the whole operation directly $\mathsf{S}$ and indirectly had some police officers to dance to his tune. The respondents counsel submitted that all the alibis raised by the appellants were disproved by the prosecution and did not in any way raise any reasonable doubt about the quilt of the appellants.

#### **Common intention** $10$

The respondents counsel submitted that all that was done was on the instructions and supervision of the first appellant. That one cannot comply with any instructions unless he or she agrees with the person giving them. He submitted that the appellants all had one target of kidnapping the victim,

torturing her until she produces the money of the first appellant and failure $15$ for which she would be killed. In the premises the learned trial judge was correct to find that unlawful common intention does not imply a prearranged plan. Common intention can be inferred from the presence of the accused persons, their actions and omissions and failure to dissociate from the assault. According to Wangiro Maniro v R [1955] EACA 521, it is $\overline{20}$ immaterial whether the original common intention was lawful so long as the unlawful purpose develops in the course of events.

The respondent's counsel contends that the submission that the different co-accused persons were at Pine bond at various times doing different acts is without merit. All the appellants were linked to the 3 offences and their other possible errands on that day has no relevance to the appeal.

With regard to grounds 6 & 7 in relation to the second, third, fifth and 8 appellants, the respondents counsel supported the decision of the learned trial judge and submitted that all the 3 offices attract a maximum penalty of death.

$25$

With regard to the compensation order, the order to pay Uganda shillings 100,000,000/= was a joint and several liabilities. Counsel submitted that there is no price tag for life. The compensation is to be paid to the family of the deceased. Further the amount cannot be tied to the value of the phone. The respondents counsel relied on section 126 (1) of the Trial on Indictment Act, for the submission that any other person who has suffered loss as a $\mathsf{S}$ consequence of the offence and as appeared from the evidence may be compensated in an amount that the court deems fair and reasonable.

## Appeal of the first appellant

## Ground 1 of the first appellant's appeal

- Mr Ssebuwufu Mohamed, the first appellant's counsel submitted that the $10$ learned trial judge erred in law and fact when she convicted the appellant of murder without proof of all the requisite ingredients. The defence conceded to the first ingredient of death. On whether the death was unlawfully caused, the appellant's counsel submitted that it was erroneous for the learned trial judge to find that the injuries inflicted upon the $15$ deceased conclusively proved that they led to her death. The details of the same submissions were made by the other appellants and we took note of them in this respect. - On whether the death was caused with malice aforethought, counsel submitted that the testimony of PW 4 shows that there were no fractures $20$ on the skull of the deceased and no injuries whatsoever to her brain. Counsel submitted that the multiple body injuries and bruises on the deceased would not in the very least be deemed to have been intended to cause the death of the deceased as defined by section 191 of the Penal Code Act. No offensive weapons whatsoever were exhibited let alone sufficiently $25$ - described by the prosecution witnesses. In the premises, it was erroneous for the trial judge to impute malice aforethought on the first appellant on the ground that the assailants of the deceased must have intended to kill her or ought to have known that such injuries would result into her death. - The appellants counsel further wondered whether the injuries were 30 inflicted by the first appellant at all. In the alternative that the first appellant be deemed to have not intended to kill the deceased and the conviction for murder be substituted with one of manslaughter. The appellants counsel submitted that the learned trial judge found the participation of the first appellant on the basis that phone printouts put him at Pine Car Bond. 35

- Secondly, he was properly identified by several prosecution witnesses and $\overline{5}$ placed at the scene of the crime. Thirdly he was properly identified at an identification parade. Lastly, PW2 and PW3 identified the voice of the first appellant on the phone. Counsel submitted that the first appellant was a businessman dealing in motor vehicle sales and whose principal place of business was at plot 7 Lumumba Avenue and not plot 6. PW 25 conducted a $10$ search and retrieved two trading licences in the names of Pearl Safari and Nakabuye Jackeline and not in the names of the first appellant. The first appellant was moreover not part and parcel of the search party and yet by - Counsel submitted that it is doubtful in whose office the blood swabs used $15$ for analysis were found or whether the deceased was in the office of the first appellant when she was assaulted. Further, counsel contended that the telephone printouts do not necessarily lead to the conclusion that the first appellant actively participated in the assault of the deceased. Further the first appellant had prominently featured in the media/press coverage $20$ before identification parade was carried out and it was likely that the alleged identifying witness had already seen the first appellant long before the parade.

that time he was under police custody.

With regard to the voice identification and phone printouts, the first lines 0772650846, 0788828071 and known telephone appellant's $25$ 0392943989 were taken by police for scrutiny and the alleged phone line 0752198368 which was used to pass over a message of killing the deceased never belonged to the first appellant and prosecution evidence did not show that it belonged to him.

- Further, the first appellant distanced himself from any alleged plan to $30$ assault the deceased as he had already secured post-dated cheques in respect of the outstanding balance owed to him by the deceased. He therefore had no motive to have the deceased killed. Counsel submitted that it was erroneous to find that the first appellant participated in the murder of the deceased. - 35

#### Ground 2 of the first appellant's appeal $\overline{5}$

In ground 2 the issue is whether the ingredients of aggravated robbery were proved to the requisite standard. Counsel submitted that the element of theft of property was not proved. These submissions were previously made by other appellants and we note them here to without having to state the details. The prosecution had the phone details of the deceased and ought to have carried out further investigation to track it. Further or that there was no deadly weapon was recovered. Lastly, there was no evidence of participation of any of the appellants as the person or persons who stole or deprived the deceased of phone.

### Ground 3 of the first appellant's appeal. 15

$10$

The appellants counsel submitted that prosecution failed to prove the offence of kidnap with intent to murder and the submissions in part are the same as the submissions of the other appellants. As far as taking away by seizure or by force, or by fraud, this was not proved against the first appellant. The deceased was arrested lawfully by three police officers as $20$ stated earlier. The arresting officers intended to take the deceased to CPS Kampala but it was the deceased who told them to take her to Pine Car Bond. The evidence of PW 5 shows that he found a group of people shouting: "let her give us our money" showing that the deceased could have been indebted to many people in light of the fact that she was also involved in the $25$ buying and selling of cars. The learned trial judge found that the first appellant instructed the fifth appellant to open a case at the police for purposes of having the deceased arrested. But the said Kiwanuka who reported the case disappeared and the prosecution did not follow him up. There was evidence of the movements of our Kiwanuka on the fateful day. $30$ The SD reference was not a sham and prosecution failed to prove the

ingredient of seizure by force.

The second ingredient of intent to harm or murder of the deceased was not proved. The deceased was lawfully arrested and only handed over to her debtor on her request for purposes of negotiation. There is no evidence that

the arrest was associated with an intention to have the deceased killed. In $\mathsf{S}$ the premises, counsel prayed that this court finds that prosecution failed to prove the offence of kidnap with the intent to murder and to acquit the first appellant.

## Ground 4 of the first appellant's appeal

- This ground relates to the finding of common intention to commit the $10$ offences first appellant and other appellants were convicted of. The first appellants counsel submitted that the evidence of PW 7 was that after arresting the deceased, their destination was CPS but the deceased begged to be taken to Pine Car Bond to settle the matter. Further, the co-accused - of the appellant were at the Pine Car Bond at various times and had different $15$ activities that were not necessarily towards a particular common goal. The prosecution was not able to adduce evidence of a common intention or agreement to perform an unlawful act between the appellant and his coaccused. Further DW5 stated that he reported the matter to the police which caused the arrest of the deceased and the one who instructed him to report $20$ the matter was Kiwanuka. In the premises, the evidence does not show the meeting of minds of the first appellant with his co-accused.

## Ground 5 of the first appellant's appeal.

Whether the learned trial judge erred in law and fact when she came to the conclusion that the alibi of the appellant had been destroyed by the $\overline{25}$ prosecution. The appellants counsel submitted that the first appellant in his defence stated that on 21<sup>st</sup> October 2015 he left his office at Pine Car Bond at 10 AM and rushed to attend court in Mengo. Further, there is ample evidence from prosecution witnesses like PW 26 and exhibit P57 that between 10 AM and 3 PM the phones attributed to the appellant were 30 showing that he was around Mengo areas. PW25 confirmed that the appellant was in Mengo. Though the appellant was within the vicinity of the Pine Car Bond at certain hours of the day, he explained the times and his actions which included meeting with the deceased when she was under one Kiwanuka and police officers and his role in calling the police to rescue the 35

- deceased later in the day. DW9 Brian Tindibwa, confirmed the alibi of the $\overline{5}$ appellant because they attended court together with the appellant and the record of proceedings of the court they attended was admitted as exhibit D7. In the premises, counsel submitted that this alibi was not disproved by the prosecution witnesses and it was erroneous for the learned trial judge to find that the appellant participated in beating the deceased, robbing the $10$ deceased or kidnapping the deceased. - Ground 6

Whether the learned trial judge erred in law and fact when she based her decision on the contradictory evidence of PW1, PW2, PW 3 to convict the appellant. Counsel submitted that the learned trial judge properly 15 addressed herself to the principles of law regarding inconsistencies and contradictions but did not apply them to the facts before her. For instance, the owner of the telephone number 0703592423 was never ascertained by way of credible prosecution evidence. There was no way the learned the trial court could ascertain the fact that the first appellant was the one $20$ making those calls to the witnesses. Further the witnesses tried to create a false picture that the first appellant was actively involved in the assault on the deceased including hitting her in her private parts. The post mortem report never confirmed this. This glaring inconsistencies and contradictions which are major and went to the core of the prosecution case against the $25$ first appellant. Further the evidence of the 3 witnesses were at variance with the police statements which were on record as defence exhibits 3 years after the incident. The police statement of PW2 has nothing to suggest that the first appellant introduced himself as the caller. The 3 prosecution witnesses were on a mission to implicate the first appellant in the $30$ commission of the offences.

Ground 7 of the first appellant's appeal.

The learned trial judge erred in law and fact when she failed to state the reasons for departing from the opinion of the assessors in her Judgment.

The first appellants counsel relied on section 82 (3) of the Trial on $\overline{5}$ Indictment Act which provides that where the judge does not conform with the opinion of the majority of the assessors, he or she shall state his or her reasons for departing from their opinion in his or her judgment. The opinion of the assessors was that the appellant ought to be acquitted because prosecution had failed to prove the case beyond reasonable doubt. In the $10$ premises, there is an error on the record and the conviction of the appellant ought to be guashed for failure to state the grounds for departing from the opinion of the assessors.

## Ground 8 & 9 of the first appellant's appeal.

- The first appellants counsel submitted that the 40 years' imprisonment for $15$ the offence of murder imposed on the appellant was harsh and excessive. He relied on Ederema Thomasi v Uganda; Court of Appeal Crim App No. 554 of 2014 where this court held that it was incumbent upon the trial judge to weigh the mitigating and aggravating factors before he or she imposes - sentence. The mitigating factor was that the appellant was a first offender $\overline{20}$ and 36 years old at the time of the sentence and a relatively young man. He was a family man with relatively young children who are school going and was remorseful. Further, the court ignored binding decisions of the Court of Appeal which could act as a guide on the appropriate range of sentences. - Counsel relied on Kamya Abdulla and 4 others v Uganda; Supreme Court $25$ Crim App No 24 of 2015, John Kasimbazi and 6 others v Uganda; Court of Appeal Crim Appeal No 167 of 2013, Ariko Francis v Uganda; Court of Appeal Crim Appeal No 241 of 2011 and Angue Robert v Uganda; Court of Appeal Crim Appeal No 48 of 2009, which had been relied on by the other appellants for the same propositions and we take note of the same. 30 - In the premises, for the offence of murder the first appellant's counsel submitted that a sentence of 15 years' imprisonment would be appropriate. If the court is pleased to substitute the conviction for murder with manslaughter, counsel submitted that a sentence of 8 years' imprisonment would suffice.

For the aggravated robbery, the appellant's counsel proposed a sentence of $\mathsf{S}$ 2 years' imprisonment. Further the appellant's counsel proposed a compensation amount of Uganda shillings 300,000/= for loss of the phone.

For the offence of kidnap with intent to murder, the first appellant's counsel proposed a sentence of 5 years' imprisonment.

In the final analysis, the first appellant's counsel prayed that the conviction $10$ of the first appellant is quashed on all counts and the sentences and orders of compensation are set aside.

In the reply the respondent's counsel submitted the same points as on the appeals of the second, third, fifth and eight appellants on the following issues:

# 1. Whether the death was unlawfully caused.

$15$

$30$

Whether there was malice aforethought. The respondents counsel added that PW1 stated that he found the deceased was weak, barefooted, with torn clothes, had bruises and was surrounded by strong men. He testified that he witnessed the first appellant kicking the deceased in the breasts and $20$ private parts and instructed others to follow suit. Secondly, PW 2 testified about the phone call where the caller threatened to kill the deceased if he did not receive the money. He submitted that this was not a coincidence because the deceased ordered the appellant Uganda shillings 9,000,000/=.

$25$ On the question of participation, the respondents counsel addressed it together with the other ingredients.

With regard to aggravated robbery, the respondent's reply is that the fifth appellant was working under the direction and control of the first appellant. Further the first appellant conceded that the deceased was in possession of the phone and was using it to communicate with those she wanted. PW 7 testified having heard the deceased talking to the first appellant about the

money she owed him and by the time he left, the deceased had intimated that her phone was with the driver outside. The person who had driven the deceased to Pine Car Bond was the fifth appellant and the fifth appellant

was constantly in touch with the first appellant according to the phone $\overline{5}$ printouts. The respondents counsel submitted that the circumstantial evidence is the best evidence and the circumstances surrounding the offence implicate the entire team of appellants that was involved in the unlawful purpose that commenced with kidnap, robbery and murder under the direct instructions and active participation of the first appellant.

$10$

$20$

## Use of violence

The respondent's counsel submitted that the purpose of the calls made by the deceased was to get help following the torture she endured at the hands of the appellants. It is that violence that culminated into the death of the deceased. In the premises the existence of violence was proved beyond reasonable doubt in light of exhibit P1 and the testimonies on record.

Use of deadly weapon for causing death or grievous harm.

The respondent's counsel submitted that the offence is also caused not only through the threats use of a deadly weapon but where death was caused or grievous harm done to any person. The respondents counsel maintains that the death was caused in the process of the assault on the deceased and there was no need to look for a deadly weapon.

# With regard to the ingredients of kidnap with intent to murder in terms of ground 3 of the first appellant's appeal.

The respondents counsel submitted that the deceased was a customer of $25$ the first appellant to whom she owed to Uganda shillings 9,000,000/= which was the balance of the vehicle she had purchased from him. It is this debt which prompted the first appellant to have her falsely accused of theft of a vehicle. The first appellant does not deny this fact of prior transaction with the deceased. PW 25 testified that the fifth appellant opened up a police 30 reference number on the instructions of the first appellant and had surveillance of the home of the deceased where he later led a team of policemen including PW 7. The respondents counsel submitted that the SD reference file at the police used to arrest the deceased was opened with ill

motives because it was based on lies and was an act of fraud. The $\overline{5}$ submission that they were other people asking for their money from the deceased, support the argument that they were speaking on behalf of the first appellant. The evidence is that the deceased had only purchased one car from the first appellant, and paid part of the price which left a balance of Uganda shillings 9,000,000/=. $10$

Intention to murder.

$25$

The respondents counsel submitted that the resultant outcome of the perpetrators actions conformed exactly what they had set out to do which was to cause the death of the cooperative.

### Grounds 4 & 5 of the first appellant's appeal. $15$

The respondent's counsel submitted that the genesis of the events is traced to the debt of Uganda shillings 9,000,000/= owed by the deceased to the first appellant. On the instructions of the first appellant, the fifth appellant opened a police case which was used to hoodwink PW 7 to support the preplanned unlawful act. Acting under the mistaken belief that the matter could $20$ be settled amicably, she agreed to have the deceased taken to the Pine Car Bond where they found the first appellant. The first appellant assaulted the deceased and instructed the other strongmen to do the same. The first appellant was positively identified. Further, the first appellant was in constant communication with the fifth appellant. The phone line used by the first appellant to communicate threats to PW 2 was 0752198368. Further, the phone calls data proves participation of the first appellant and is corroborated by calls between the first appellant and the fifth appellant. The respondents counsel submitted that there was credible circumstantial evidence that pins the first appellant. There is also direct evidence of the participation of the first appellant who instructed other people assaulted the deceased.

The alibi of the first appellant that he was in Mengo court cannot hold because the call data printouts and the participation of the first appellant put him at the scene of the crime though he was in Mengo for a short time.

Regarding common intention, all that was done was on the instructions and $\mathsf{S}$ with the supervision of the first appellant. Their target was to kidnap the victim, torture her until she produces the debt she owed to the first appellant, failure for which she would be killed.

## Ground 5 of the first appellant's appeal.

The respondent's counsel submitted that the learned trial judge properly $10$ evaluated the evidence on record and came to the right conclusion.

# Ground 6 of the first appellant's appeal.

On the question of contradictions, the kick administered by the first appellant was never revealed in the post-mortem report can be explained by the fact that it did not leave a mark. The respondent's counsel further $15$ submitted that the issue of disparities between police statements and testimonies is not material because the witnesses testified on oath and the court had opportunity to observe their demeanour. Further the prosecution witnesses were subjected to rigorous cross examination and their testimonies stood up to scrutiny. Further there was no chance of any $20$ mistaken identity as the perpetrators of the offence were identified from the parade and later identified in court.

## Ground 7

## Failure to give reasons for departing from the opinion of assessors.

Counsel submitted that section 82 (2) of the Trial On Indictment Act, should $25$ be construed as being directory because interpreting it as mandatory would lead to an absurd result and cause injustice. Section 82 (2) provides that "the judge shall give his or her judgment, but in so doing so shall not be bound to conform with the opinions of the assessors". Counsel submitted that no miscarriage of justice was occasioned to the appellants since the $30$ reasons for conviction and sentences were given in the judgment and the record of appeal respectively. She prayed that this ground of appeal is disallowed.

### Grounds 8 & 9 of the first appellant's appeal. $\mathsf{S}$

On the issue of whether the sentence was harsh and excessive and whether the compensation of Uganda shillings 100,000,000/= ordered against the appellants was erroneous, the respondent's counsel submitted that the offence merited a maximum sentence and the court considered the material factors and circumstances before sentencing the appellants to 40 years' imprisonment for murder, 20 years for aggravated robbery and 30 years for kidnap with intent to murder. The learned trial judge took into account both the mitigating and aggravating circumstances. Further counsel submitted that sentencing is at the discretion of the trial judge and an appellate court ought not to interfere with it unless the learned trial judge acted on a wrong principle or overlooked some material fact or where the sentence is manifestly harsh and excessive in view of the circumstances of the case.

Regarding the compensation order, the respondent's counsel submitted that an award of Uganda shillings 100,000,000/= jointly and severally against the appellants was for loss of life and there was no price tag for life. The court was entitled to consider the injury suffered by the family of the deceased.

The first appellant filed written submissions in rejoinder to the respondent's submissions in reply that we have considered. The submission reinforces the first appellant's submissions in the main and we have considered it in the judgment.

## **Resolution of appeal**

$10$

$15$

$20$

$\overline{25}$

We have carefully considered the three sets of memoranda of appeal, then three sets of submissions of counsel for the various appellants and the reply of the respondents as well as the authorities cited and the law 30 generally. We have further studied the record. This is a first appeal from the decision of the High Court in the exercise of its original jurisdiction and our duty as set out in Rule 30 of the Rules of this court is to retry the case by subjecting the printed evidence on the record to fresh scrutiny and to reach our own conclusions on the matter. (see rule 30 of the Rules of this 35 court). We must bear in mind that we neither seen nor heard the witnesses $\mathsf{S}$ testify and make due allowance for that (See Pandya v R [1957] EA 336, Selle and Another v Associated Motor Boat Company [1968] EA 123 and Kifamunte Henry v Uganda: SCCA No. 10 of 1997).

We shall start with a point of law arising from ground 7 of the memorandum of appeal of the first appellant which is to the effect that the learned trial $10$ judge erred in law and fact when she failed to state the reasons for departing from the opinion of the assessors in her Judgment. In the submissions in support of this ground of appeal, the first appellants counsel submitted that it was a mandatory requirement under section 82 (3) of the Trial on Indictment Act for the trial judge who is not bound to follow the $15$ opinion of the assessors, to state the reasons for departure from the assessor's opinion. On that basis he prayed that the court finds that it is a mandatory requirement which was not complied with and is an error on the record and accordingly prayed that we quash the appellant's conviction and sentence. The second, third, fifth and eighth appellants did not raise this as $20$ a ground of appeal but are equally affected by the ground of appeal in the joint trial. Further the sixth and seventh appellants also did not have a specific ground dealing with the issue of assessors.

No specific authority to the issue was cited by any of counsel. The respondent's counsel relied on the doctrine in civil cases in Kampala Capital $25$ City Authority versus Kabandize and 20 Others; Civil Appeal Number 013 of 2014 which cited and followed the decision of the Supreme Court in the Sitenda Sebalu v Sam K. Niuba and the Electoral Commission; Electoral Appeal Number 26 of 2007 for the proposition that the use of the word "shall" in a particular statutory provision may be mandatory or directory. 30 The court would hold it as directory if to find that it is mandatory would lead to absurdity or to inconsistency with the Constitution or statute or would cause injustice. She submitted that section 82 (2) provides that the judge shall give his or her judgment but in doing so shall not be bound to conform with the opinion of the assessors. The respondents counsel conceded that 35 section 82 (3) of the Trial on Indictment Act was breached but that on the

strength of section 82 (2), we should find that no miscarriage of justice was $\mathsf{S}$ occasioned to the appellants since the reasons for conviction and sentences were given in the judgment. Section 82 of the TIA provides that:

82. Verdict and sentence.

(1) When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. The judge shall take a note of his or her summing up to the assessors.

(2) The judge shall then give his or her judgment, but in so doing shall not be bound to conform with the opinions of the assessors.

(3) Where the judge does not conform with the opinions of the majority of the 15 assessors, he or she shall state his or her reasons for departing from their opinions in his or her judgment.

> (4) The assessors may retire to consider their opinions if they so wish and during any such retirement or, at any time during the trial, may consult with one another.

$20$ (5) If the accused person is convicted, the judge shall pass sentence on him or her according to law.

> (6) If the accused is acquitted, he or she shall be immediately discharged from custody unless he or she is acquitted by reason of insanity.

- There is no direct authority that we have established so far as to the consequences of a trial judge failing to give reasons for his or her $25$ nonconformity with the opinion of the assessors as directed under section 82 (3) of the TIA. In the precedents considered, the duty of a judge to give the reasons for departure from the opinion of assessors has been considered a fundamental duty. - In Ouko v Republic [2007] 2 EA 380 (CAK) the appellant was charged and $30$ convicted of murder. On appeal to the Court of Appeal of Kenya at Nairobi, one of the issues was that the Judge did not refer to or give reasons for agreeing with the assessors. The Court of Appeal of Kenya held that:

"Furthermore, we do not think it is fatal for the Court to omit the mention of the assessors in the judgment when they have all simply returned a unanimous opinion which the Court agrees with. The emphasis that has always been laid by this Court is that a trial court which disagrees with the opinions expressed by the assessors should explain sufficiently his reasons for so disagreeing. See Kihara v Republic [1986] KLR 473. In the Kinuthia case (supra), the court held:

> "In a case involving controversial evidence which ought to be decided either way, it would be a strong action to overrule the unanimous opinion of the assessors on some points. It is therefore, fundamental that a court gives its reason for disagreeing with the assessors."

In our view, the failure by the learned Judge to refer to the unanimous opinion of 15 the assessors which he agreed with, and his failure to give reasons for so agreeing, though it may be desirable for completeness of his judgment, was not fatal to the judgment as a whole. If all other things were equal, we would have made a finding that there was no prejudice caused to the appellant and that the defect, if any, in the judgment was curable under section 382 of the Criminal $20$ Procedure Code."

In Kihara v Republic; Criminal Appeal No. 54 of 1985, ([1986] eKLR the Court of Appeal of Kenya held that:

The fourth complaint was that the assessors unanimously returned the opinion of not guilty of the charge of murder but the judge overruled their opinion and proceeded to convict him on a lesser offence of manslaughter. The learned trial judge agreed with the assessors fully that the prosecution did not prove malice aforethought, an essential ingredient in the murder charge but held that the appellant assaulted the deceased. The judge is not bound by the findings of the assessors under section 322 (2) of the Criminal Procedure Code (cap 75) but a judge who disagrees with the unanimous opinion of the assessors should explain *sufficiently his reasons for so disagreeing.* That is not the case here. (Emphasis added)

Again Kihara v Republic (supra) is not directly to the issue before this court. Generally, the use of the word *shall* under section 82 of the TIA was 35 considered in another context by the Supreme Court of Uganda in Bakubye and Anor v Uganda (Criminal Appeal-2015/) [2018] UGSC 5 (17 January 2018). It was an appeal from the decision of the Court of Appeal and one of the

$25$

$\mathsf{S}$

issues was "Who is responsible for summing up the evidence and the law" $\mathsf{S}$ to the assessors and whether this responsibility can be delegated."

In resolving the issue, the Supreme Court considered section 82 (1) of the **Trial On Indictments Act which provides:**

When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. The judge shall take a note of his or her summing up to the assessors. (Emphasis of Court)

The Supreme Court held that the provision is couched in mandatory language and the presiding judge is duty bound to do the summing up and that duty cannot be delegated. They found that the presiding judge did sum $15$ up the evidence and the ingredients that had to be proved by the prosecution on each count but the summing up notes were read to the assessors by the Deputy Registrar of the Criminal Court Division. In the premises there was no misdirection in the summing up and the reading of the summed up notes

by the Deputy Registrar neither prejudiced the appellants nor caused a $\overline{20}$ miscarriage of justice though it is to be discouraged.

Coming to the facts of this appeal, there is one paragraph in which the learned trial judge commented on the opinion of assessors:

$25$

$30$

$10$

And in disagreement with the opinion of the Assessors, I hereby find all those accused persons guilty as charged on all the three counts and they are hereby convicted as charged.

The learned trial judge only stated that she disagreed with the assessors. The assessors gave a joint opinion on the three counts the appellants were all charged with. On the count of aggravated robbery, the assessors considered the ingredients of the offence and advised the court to acquit all the accused of the offence of aggravated robbery. They found no evidence for the prosecution and the defence that prove the offence of aggravated robbery beyond reasonable doubt.

On the count of kidnap with intent to murder, the assessor's view was that they took into account all the ingredients of the offence. They noted that the 35

deceased had been arrested from her home and found that the prosecution $\mathsf{S}$ had failed to prove the offence beyond reasonable doubt and asked the court to acquit all the 8 accused persons of the offence.

On the count of murder, the assessors opined that they considered all the ingredients of the offence. On the issue of our participation, they found that the prosecution did not prove the participation of the first appellant beyond $10$ reasonable doubt. They found no sufficient evidence of participation of all the other 7 convicts and advised the court to find all the accused persons not guilty of the offence and to acquit them accordingly.

The learned trial judge did not give any reasons for nonconformity to the opinion of assessors'. Granted, she evaluated the evidence and considered $\overline{15}$ all the ingredients of the offence in her judgment with detailed reasons.

Section 82 (3) of the Trial on Indictment Act, is couched in mandatory language and states that:

$20$

(3) Where the judge does not conform with the opinions of the majority of the assessors, he or she shall state his or her reasons for departing from their opinions in his or her judgment.

Though the reasons for departure from the opinion of the assessors were not expressly given in the judgment, could the evaluation of the evidence by the learned trial judge be taken to be the reasons for the departure? What is critical is that section 82 (3) allows the learned judge not to conform with $25$ the majority opinion of the assessors, it follows that she was entitled to. The narrower question in issue is, was she obliged to give reasons for the departure? This reason would not and cannot change the judgment and should be taken to be a matter of procedural justice. Secondly, it would be a question of form and not of substance where the reasons for the 30 judgments are given but are not expressly stated. Section 82 (3) of the TIA is couched in mandatory terms. It follows from the need to have assessors attend the proceedings and to give their opinion as laypersons on matters of fact. This assists the judge and allows the people

to participate in the administration of justice. The assessors advise the $\mathsf{S}$ court on matters of fact after the summing up by the trial judge. As an appellate court, we are obliged to evaluate the evidence for ourselves and come to our own conclusions on all issues of fact and law. The only question that remains to be resolved is whether the failure of the learned trial judge to give reasons rendered the decision invalid. $10$

Generally, use of the word "shall" is considered mandatory. The common law position is stated by Halsbury's laws of England fourth Edition Reissue Vol 44 (1) as to the rules of interpretation in determining whether a provision of a statute is mandatory or directory. In paragraph 1238 pages $730 - 731$ it is stated that:

Mandatory and directory enactments. The distinction between mandatory or directory enactments concerns statutory requirements and may have to be drawn where the consequence of failing to implement the requirement is not spelt out in the legislation. The requirement may arise in one of two ways. A duty to implement it may be imposed directly on the person; or legislation may govern the doing of an act or the carrying on of an activity, and compel the person doing the act or carrying on the activity to implement the requirement as part of a specified procedure. The requirement may be imposed merely by implication.

To remedy the deficiency of the legislature in failing to specify the intended legal consequence of non-compliance with such a requirement, it has been necessary for the courts to devise rules. These lay down that it must be decided from the wording of the relevant enactment whether the requirement is intended to be mandatory or merely directory.

According H. W. R. Wade in, Administrative Law Fifth Edition at page 218, generally, the non-observance of a mandatory requirement in a statute is 30 fatal though there are exceptions to the general rule:

> "Non-observance of a mandatory condition is fatal to the validity of the action. But if the condition is held to be merely directory, its non-observance will not matter for this purpose."

The question we have to determine *inter alia* is whether section 82 (2) of the 35 TIA is an exception to the general rule and therefor directory. H. W. R. Wade

$25$

- (supra) notes at page 223 that in some administrative cases where it is a $\mathsf{S}$ case of failure to explain the authority's main decision, the court will intervene not merely if no reasons were given but also if they are unsatisfactory: - In one such case, where the reasons given by an agricultural arbitrator did not explain what breaches of covenant had been committed by the tenant, this was $10$ held to be error on the face of the award and it was set aside (Re Poyser Mills Arbitration [1964] 2 QB 247). And in a planning case, where the Minister's decision of an appeal was accompanied by obscure and unsatisfactory reasons, the decision was quashed for non-compliance with the procedural rules which govern these appeals and require decisions to be reasoned (Givaudan & Co. Ltd.) $15$ v. Minister of Housing and Local Government [1967] 1 WLR 250.

... Neither of these last two cases quite amounts to holding that the giving of reasons is mandatory in the full sense. For an award which had mere error on its face was not in law a nullity; and in the case of the planning appeal the decision was guashed by invoking the statutory remedies for the Town and Country $20$ Planning Act 1962. Nevertheless, it is probably right to regard these cases as manifesting the court's inclination to hold that the requirement of reasons to be mandatory where there is no alternative remedy. The whole tenor of them is that the duty to give satisfactory reasons is a duty of decisive importance which cannot lawfully be disregarded. They are supported by an earlier decision that where $\overline{25}$ licensing justices were required by statute to specify the grounds of their decision, failure to do so make the proceedings wholly defective, so that they could be required by mandamus to rehear the application de novo (R. v Thomas [1892] 1 QB 426; R. v. Sykes (1875) 1 QBD 52; exparte, Gorman [1894] AC 23). The $30$ justices were empowered to refuse an application on one of four specified grounds, and it was held that this implied a duty to state the grounds of refusal.

In the Modern Law Review; March 1970 volume 88 on the subject of the statutory duty to state the reasons at page $157 - 158$ it is written that:

A duty to state reasons was imposed by the Tribunals and Inquiries Act 1958 on a large number of statutory tribunals, and on Ministers notifying decisions after the holding of a statutory inquiry or in cases where the persons affected by the decision could have required the holding of a statutory inquiry. In such cases "... It shall be the duty of the tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or

notification of the decision, to state the reasons." The statement of reasons is deemed to form part of the record....

Mandamus lies to enforce a statutory duty to state reasons. Alternatively, the decision itself can be attacked for failure to state reasons. The failure does not make the decision void, but only voidable, and it cannot be treated as a nullity in collateral proceedings; but an arbitral award which ought to contain reasons and does not do so can be set aside for error of law on the face of the record, and, in proceedings under section 179 of the Town and Country Planning Act 1962, a decision which failed to state reasons could be quashed on the grounds that the appellants interest had been substantially prejudiced by a failure to comply with the relevant requirements of the Act.

Noteworthy is the fact that in administrative law, failure to give reasons may not make a decision void and the court considers whether substantial prejudice has been occasioned to the interest of the person affected. The failure can be rectified.

- In this case there is a command to give reasons for departure from the $\overline{20}$ opinion of assessors affecting the liberty of the appellants. To resolve the issue, the provisions of section 82 of the TIA have to be considered as a whole. In Rajabu Salum v The Republic [1965] 1 EA 365 the East African Court of Appeal at page 369 held that it is mandatory that assessors must be given the opportunity to express their views on the case generally. In **Zoreka and** $25$ another v Uganda [1986 - 1989] 1 EA 603 the Supreme Court of Uganda reiterated the earlier position that where the court excuses an assessor from attending trial, to proceed with the hearing of the case in the absence of the assessor is lawful. It was however unlawful to allow the absent assessor to resume his seat and give his opinion. In other words, the 30 opinion of an assessor should be preceded by attending all the proceedings. Allowing an absent assessor in part of the proceedings to give an opinion goes to the jurisdiction of the court. Specifically, we would like to quote the rationale reiterated by the Supreme Court at page 607 on the principle of fundamental justice that: - 35

$\mathsf{S}$

$10$

$15$

The Court process is designed to carry into effect the principle of natural justice. that the Court gives a hearing to each side and, having done so, decides the

controversy between them. Justice must also be seen to be done. No accused $\mathsf{S}$ person could feel that justice has been done to him if part of his evidence is not listened to. This appellant had given his defence on oath, and was willing to face cross-examination. No doubt he wasted the Court to hear him answer the prosecutor. Nor could be ever feel satisfied if the assessor who did hear his whole defence advised an acquittal, while the assessor who did not hear him fully, $10$ found him quilty. It is clear that the Court was not properly constituted and was not competent to Judge. The trial was a nullity, and had to be set aside on general principles. To hold otherwise, and to try and distinguish which types of evidence would not vitiate the trial, was to be on the thin end of the wedge leading to cases where it would be possible to ignore some evidence, and cure the defect. Sir $15$ Roger Hall, CJ, set the Courts in the right direction in 1937, when he held that it was immaterial whether the evidence was given in the absence of an assessor during one day or several days, whether the evidence given was for the prosecution or for the defence, or whether it was merely formal. The result of that direction is that all the evidence must be heard by the full Court, and that is $20$ the only way that the legal process can be a rational basis in order that justice cannot only be done, but also be seen to be done.

In the circumstances of this appeal, the learned trial judge summed up to the assessors. The assessors gave their opinion and she did not conform to the same. All procedural rules were complied with and what was left was $25$ the stating of reasons for nonconformity.

In Bakubye and Anor v Uganda (Criminal Appeal-2015/) [2018] UGSC 5, the Supreme Court of Uganda found the same provision to be mandatory. The question is, of what use would it be to the accused persons if they were convicted without explaining the grounds why the learned the trial judge departed from the opinion of the assessors asking the court to acquit them. It follows that the learned trial judge is under a duty to state his or her reasons for departing from the opinion of the assessors in his or her judgment though it is expressly clear under section 82 (2) of the TIA that in giving his or her judgment, the learned trial judge is not bound to conform with the opinions of the assessors. If it is mandatory for the assessors to give their opinion, what of the duty of the learned trial judge to state his or her reasons for departing from the opinion? Judicial precedents show that even if this is not done, if the trial judge agrees with the opinion of the

$\overline{42}$

assessors, no prejudice would have been occasioned to the accused $\mathsf{S}$ persons. We need to consider the evidence as a whole to determine whether the departure from the opinion of the assessors was to the prejudice of the convicts. Fundamentally, the learned trial judge gave her reasons for convicting the appellants on all the counts and therefore her grounds for not conforming to the opinion of assessors may be taken to be those $10$ reasons in the evaluation of evidence. The failure could in the premises, be considered to be a matter of form rather than of substance. Even then, we need to determine whether there was evidence in support of the conviction to determine whether the appellants were prejudiced by the omission to state reasons for departure from the opinion of assessors to determine the $15$ question conclusively. This is enabled by section 34 (1) of the Criminal Procedure Code Act which provides that:

34. Powers of appellate court on appeals from convictions.

(1) The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Section 34 (1) can be considered to have two elements that are relevant. The first element is the proposition that a judgment may be set aside on the 30 ground that it is unreasonable or cannot be supported having regard to the evidence or is wrong on any question of law where there has been a miscarriage of justice. The other element is that even if the appeal may be decided in favour of the appellant on any of the grounds above, the court would dismiss the appeal if no substantial miscarriage of justice has 35 actually occurred on account of the error of fact or law of the trial court. This latter proposition is supported by persuasive English judicial

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precedents applying a statute in *pari materia* with section 34 (1) of the $\overline{5}$ Criminal Procedure Code Act, save for use of one different but similar word in meaning. The Court of Appeal cited with approval these precedents in Byamukama Dominic versus Uganda; Criminal Appeal No. 220 of 2011.

It has been held that where a conviction is supported by the clearest evidence, the courts would not interfere with the conviction on grounds of $10$ irregularity in pleadings or defect in the charge or other matters.

In King v Thompson [1914] 2 KB 99 the court considered on appeal the ...proviso in section 4 subsection 1 of the Criminal Appeal Act 1907, which provides as follows:

"provided that the court may, notwithstanding that they are of the opinion that the point raised in the Appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."

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This provision is in *pari materia* with the exception in section 34 (1) of the CPCA which provides as follows: $20$

> "...; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The only difference in wording in the above provisions is in the use of the $25$ word "provided" in the UK stature as opposed to the use of the word "except" in the Ugandan statute. Secondly, the UK statute uses the permissive word "May" while the Uganda statute uses the imperative word "shall". The meanings of those two paragraphs are in substance the same and are both controlled by the subsequent words which are the same. The words 30 "provided" or "except" achieve the same effect of making a proviso or exception of what follows. Finally, the English provision gives a discretionary power to the court while the Ugandan provision is couched in mandatory words. In **King v Thompson [1914] 2 KB 99** the accused had been charged with incest $\overline{5}$ and convicted. On appeal, Isaacs Chief Justice *inter alia* considered the rationale for the law and held that:

... One of the objects of s. 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the legislature was that justice should be done in spite of the wrong decision and that the court should not interfere if it came to the conclusion that. notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The court must always proceed with a caution when it is of the opinion that a wrong view of the law had been taken by the Judge presiding at the trial. but when it is apparent, and indeed undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the court must act upon the proviso in this section of the Act."

Where there is clear evidence in support of the conviction there will be no $20$ prejudice or substantial miscarriage of justice even if there was misdirection on the part of the trial judge. In **John William Oster – Ritter v R** (1948) Vol. 32 Cr App Rep 191, the Appellant was convicted of obtaining goods by false pretences and was sentenced to three years' penal servitude. An improper direction has been given to the jury and on appeal, the Lord Chief $25$ Justice held that:

> "But in this case the evidence was overwhelming and as clear as it could possibly be that the appellant had no expectation of money being paid into his account than he had of being a millionaire the next day. It is impossible to believe that, even if the proper direction had been given to the jury, they could have come to any conclusion other than that the defendant was guilty of the offence which is commonly called passing worthless cheques.

In these circumstances, the case is obviously one in which the court should apply the proviso to section 4 (1) of the Criminal Appeal Act, 1907, which provides that, where the court finds misdirection, they are not to quash the conviction unless they are of the opinion that a substantial miscarriage of justice has been caused thereby. In this case we are quite satisfied that there was no miscarriage of justice. We are quite satisfied that the appellant was guilty of the offences charged, and there is no reason to suppose that, even if a proper direction had

$10$

been given, the jury would have come to any conclusion other than that to which they did come. The appeal is dismissed."

The above precedents demonstrate that the court will not quash a conviction even if there are errors of law or procedure if no substantial justice has been occasioned thereby. There is no prejudice to the convict where there is clear evidence in support of the conviction (See section 34 (1) of the Criminal Procedure Code Act). The court will not quash a conviction on account of errors of law and procedure where no substantial miscarriage of justice has been occasioned.

The facts in this appeal are that the assessors gave their opinion on 29<sup>th</sup> April 2019 and the judgment was reserved for the 30<sup>th</sup> of May 2019 about a $15$ month later. Judgment was delivered on 2fourth June 2019 about two months later. In the judgment the learned trial judge evaluated the evidence on each ingredient of the offence and against each of the appellants. She gave her reasons for convicting the appellants on each ground of appeal. Those reasons for the conviction on each ground are in substance the $20$ reasons for not conforming to the opinion of the assessors that the appellants should be acquitted on each count. Nonconformity with the opinion of assessors depended on whether all ingredients of the offence in each count had been proved after evaluation of the evidence. In substance

- failure to give reasons for the nonconformity with the opinion of assessors $25$ is a question of form and not substance. In light of the duty of this court to re-evaluate the evidence under rule 30 of the rules of this court, we shall subject the evidence on record to fresh scrutiny and come to our own conclusions. We shall also consider whether the nonconformity with the - opinion of assessors should be upheld or not on each of the ingredients of 30 the three counts of murder, aggravated robbery and kidnap with intent to murder. In doing so we shall determine whether a miscarriage of justice has been occasioned to any appellant on any or all counts of the offence or offences the appellants were convicted of. - In the premises, we will consider whether each of the appellants were 35 prejudiced or whether a substantial miscarriage of justice was occasioned

$\overline{5}$

to any of them for nonconformity to the opinion of the assessors while $\mathsf{S}$ considering their grounds of appeal and would in the process determine on each ground the merits of ground 7 of the first appellants appeal as applies to each appellant as a matter of law.

## Appeal of the sixth and seventh Appellants.

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We have carefully considered the appeal of the sixth appellant Mr $10$ Kitayimbwa Yoweri and the seventh appellant Mr Ssentongo Damasen. The crux of the appeal is that none of the prosecution witnesses proved their participation on all the counts of the offences they were convicted of. The prosecution called a total of 26 witnesses to prove the offences the appellants. 15

We have carefully considered all the testimonies of the 26 prosecution witnesses having in mind that the burden is on the prosecution to prove all the ingredients of the 3 counts of the offences the appellants were charged with beyond reasonable doubt against each of the appellants and this burden of prove does not shift to the defence to prove their innocence.

As far as the sixth and seventh appellants are concerned, we have considered the all the testimonies of prosecution witnesses.

The learned trial judge at page 417 of her judgment found that the first appellant demanded for his money from the deceased and all the accused

at Pine Car Bond continued assaulting the deceased and demanding for $25$ payment of the debt and also threatening her with death if she did not pay. In the course of the day the deceased was eventually driven in a car whose driver was the fourth appellant with 2 police officers and a lawyer and subsequently driven back to the Pine Car Bond. She found that from the phone call data all accused persons save for the eighth appellant whose $30$ phone was not recovered were at the crime scene at the material time of commission of the offence. The learned trial judge noted that the sixth appellant and the seventh appellant exercised their right to remain silent when put to defence. Of particular interest is the finding at page 28 to page 29 of the judgment that: $35$

A 6 and A 7: it is contended that these 2 accused were not identified by any of the $\mathsf{S}$ prosecution witnesses. However, the evidence of PW 25 the AIP Walva Henry Peter the officer who investigated the matter is to the effect that he arrested A6 and A7. The witness added that after the arrest of A1 and A4 the rest of the accused went into hiding. On 27.10.15, he got information that A6 had appeared at the bond and he was arrested. Why would the 2 accused persons go into hiding $10$ after the murder? Their disappearance is not conduct of innocent people.

> The witness exhibited the phones of A1, A5, A6 and A7. – exhibits PE 25A and P 25 $\mathsf{D}$ .

This belies the submission of counsel of the accused to the effect that the 2 accused were arrested by flying squad.

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$20$

$\overline{25}$

And exhibit P 26. Exhibit P 57 the telephone printouts, also indicate the location of A1 - A7 as having been within the surrounding areas of the crime scene on 21.10.15.

PW 23 number 38309 DCPL Magoola Brian who deals with crime data management, tracking phones and interpretation of data explained that Rwenzori towers, Buganda road, and Rwenzori house and major network masts that locate calls made or received from Pine Car Bond.

This evidence raises issues of circumstantial evidence, which I have already referred to in this judgment, as "evidence capable of proving a proposition with the accuracy of mathematics" - see Thaika v Republic."

It should be noted that the assessors among other things found that none of the ingredients of the offences charged against all the accused persons had been proven and opined that the accused should be released.

We have subjected the evidence against the sixth and seventh appellant to exhaustive scrutiny. Starting with the review of evidence by the learned trial $30$ judge, the learned trial judge notes that the first appellant instructed the fifth appellant together with police officers to go to Bwebajja along Entebbe road to arrest the deceased. They booked at Bwebajja police post at 7:29 AM and went to the home of the deceased whereupon they arrested her. The deceased was brought to Kampala in the motor vehicle driven by the fifth 35 appellant. They reached Pine Car Bond between 830 - 9 AM. The first appellant left the Pine Car Bond after being assured that his debt would be

settled. Present at the office of the first appellant, were the second $\mathsf{S}$ appellant, the third appellant, the fourth appellant, the sixth appellant and the seventh and eighth appellants respectively in addition to one Kiwanuka Sam. She found that the first appellant demanded for money from the deceased and started assaulting her. All the accused persons at the bond started assaulting the deceased. PW1 went to the car bond on instructions $10$ of PW2 to rescue the deceased and have her taken to the police. Eventually the assailants called PW2 who pleaded for the release of the deceased. She sent PW 3 another lawyer to the bond. When the lawyer reached the scene, he too was assaulted. In spite of being physically resisted the lawyer together with 2 police officers insisted on taking the deceased to the police $15$ at the central police station (CPS). They got a vehicle from the first appellant driven by the fourth appellant and travelled to CPS. Upon reaching CPS, the police officers got out and the fourth appellant drove the lawyer and the deceased back. PW 3, the lawyer jumped out of the moving vehicle when it neared the commercial court on Lumumba Avenue, leaving the deceased in $20$ the car. The deceased was finally rescued from Pine Car Bond at 6:30 PM by police and driven to CPS from where she was taken to Mulago hospital by an ambulance but died on arrival.

The question is who identified the sixth and seventh appellants among the people who assaulted the deceased at Pine Car Bond? We have accordingly $25$ considered the testimonies of all the witnesses.

**PW1 Tusiima Peter**, a legal Assistant with the Tumwebaze, Atugonza, Kobusingye advocates & legal consultants got instructions from Kobusingye Annette (an advocate who testified as PW 2) who had received information about the plight of the deceased at the Pine Car Bond. He went to the crime scene and was a witness to some of the assault on the deceased. The deceased was in the office of the first appellant. The witness only recognised the first appellant and could not recognise other 6 men who were instructed to beat the deceased. He went back to his chambers at around 5 PM. In an identification parade conducted on 27<sup>th</sup> of October 2015 by the police, he only identified the first appellant and did not know the

other accused persons. He further testified that there were a great number 5 of people who had gathered around when the deceased was being assaulted.

PW2 Kobusingye Annette, an advocate, received a telephone call from Edison Kanyamibirwa around 11 AM who informed her about the torture of the deceased at Pine Car Bond. She never went to the scene. In her testimony. Her evidence was silent about the sixth and seventh appellants.

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PW3 Twesigye Amon, another lawyer went to the police to follow up on the issue of their client and subsequently went which 2 officers to the scene. There was a policewoman and a policeman who accompanied him to the crime scene. He found many people and put the number at around 40 $15$ people. He went to Pine Car Bond around 4:30 PM. The first appellant called one Golola and 4 guys surrounded him. They began assaulting him. He was also arrested for being an accomplice of the deceased and taken to where she was seated. He, together with the 2 policemen the deceased and the eighth appellant were driven to CPS by the fourth appellant. On reaching $20$ CPS, the police officers got out but the fourth appellant drove back whereupon when he realised that they were driving back to Pine Car Bond, he jumped out around the commercial court building on Lumumba Avenue. He made no mention of the sixth and seventh appellant. In an identification parade conducted on 25<sup>th</sup> October, 2015, he only identified the fourth $25$ appellant and the second appellant. In another identification parade conducted on 27<sup>th</sup> of October 2015, he identified the first appellant. Further he testified that the bouncers who assaulted him were the second appellant, the third appellant, the fourth appellant and eighth appellant.

**PW4 Male Mulumba** a medical doctor carried out the post-mortem. PW5 $30$ ASP Mugabi Ronald did not go to the scene immediately but only dispatched officers to go there. Subsequently, he went to Pine Car Bond and found the deceased in a vehicle and there were many people at the scene. The people were demanding for their money. He made no mention of the sixth and seventh appellants. 35

**PW6 Nuwamanya Emmanuel** only carried out a medical examination of the $\mathsf{S}$ accused persons. PW7 Nvanzi Specioza participated in the arrest of the deceased and brought her to Pine Car Bond whereupon she left. She only mentions the first appellant. **PW8 DAIP Wolimbwa Stephen** testified about the identification parade. He conducted the identification parades. He noted that Amos Twesigye identified the first appellant. Tusiime Peter also $10$ identified the first appellant. AIP Amanzuruku Francis identified the first appellant. There was no mention of the sixth and seventh appellants.

PW9 DAIP Amanzuruku Francis was one of the officers who went with another officer to Pine Car Bond on instructions to rescue the deceased. He found Amon (the lawyer) and identified the first appellant. He testified about $15$ 2 "Golola" or bouncers but does not mention the sixth or seventh appellants. PW10 Dr Jackson Kakembo examined Sentongo Damasene (the seventh appellant) and found no injuries on him and his mental status was normal. PW11 Dr. Barungi Tadeus examined Kitayimbwa Yoweri (the sixth appellant) and found no injuries on his body and his mental status was normal. $20$

PW12 No. 533493 PC Batio Beatrice was called by the OC Station ASP Mugabi and AIP Amanzuruku Francis. They went to Pine Car Bond to rescue a woman. They found very many people among other things they found the deceased, and later on 27<sup>th</sup> October, 2015 she was requested to identify the people she had seen at the Pine Car Bond in an identification parade. She identified Shaban Odutu (A8). She also identified the first appellant.

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PW 13 No. 34691 CPL Ociran Credinald was attached to the emergency response unit of the police. Received information about a woman being tortured at Pine Car Bond. He relayed the information to the appropriate persons and made no mention of the sixth appellant or the seventh appellant.

PW 14 Sgt Nyakana David was the driver of the ambulance that took the deceased from CPS to Mulago hospital. He witnessed nothing about the commission of the crime. Similarly, PW15 DIP Dranikuh Eria Maxwell participated in arresting the aspect of a murder case. He arrested Paul

Tasingika. Further PW16 No. 955933 DC Masereka John on 21st of July 2016 $\overline{5}$ participated in arresting Shaban Odutu. PW17 No/ 45477 PC Opolot Peter was at the counter of the police post at Bwebajja police post. His role was in registering or booking Nyanzi Essy, the woman officer and her team who went to arrest a female suspect. PW18 DSGT Buluma Robert recorded the statements of the first appellant, the second appellant and the third $10$ appellant. PW19 DAIP Turyagenda Erifazi was on 21<sup>st</sup> October, 2015 instructed to go and search the place of the first appellant. They went and searched Pine Car Bond but did not recover anything. On 2nd October, 2015 he arrested Charles Lwanga (the person who drove the deceased to CPS) and also the fourth appellant. PW20 PS Pius Canningoin, a forensic expert $15$ made reference to the sixth and seventh appellant because he collected samples from them and made a report exhibit P13. PW21 number 40132 DCPL Osekenyi Alex was the scenes of crime officer. He did not witness anything concerning the participation of the sixth and seventh appellant. PW 22 Onen Godfrey is the Principal Government Analyst with the Directorate $20$ of Government Analytical Laboratory, Head of DNA Laboratory. He established that the samples of blood taken from the scene of crime

- belonged to the deceased. He did not link any of the DNA material to the accused persons. PW23 No. 38309 PCPL Magoola Brian whose duties included crime data - $25$ management was given the task of analysing call data printouts of the suspects and the deceased and made a report. He was given the task of criticality studying the places, the time and locations on 21st October, 2015. He made his report. He had no call data for the sixth and seventh appellants. - PW 24 Hamidu Wasaaka was at Pine Car Bond on 21<sup>st</sup> October, 2015 and was 30 also the local council defence secretary. He was informed that the deceased had been brought to Pine Car Bond and the part belonging to the first appellant. He went to the scene of the crime and found about 20 other people. He testified that he could only remember 2 people. He made a police statement. In fact, he made two statements to the police. He found Godi, 35 Golola Philip and an informer called Paul. He was declared a hostile witness

and cross examined by the prosecution whereupon he stated that there $\mathsf{S}$ were 4 men surrounding the deceased. These were Godi, Golola, Philip and Paul. On further cross examination by defence counsel, PW 24 stated that the people beating the deceased were Kiwa (Kiwanuka) Golola, Godi and a man wearing a coat whose names he did not establish. He also noted that Paul was not in court.

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PW25 DAIP Walya Henry Peter was instructed to investigate the murder of the victim. On arrest of the sixth appellant, he found him with a phone. He also arrested the seventh appellant and recovered a phone from him. He forwarded the phones for call data analysis. The phone of the sixth appellant

- had no Sim card and they did not get any telephone number. Similarly, the $15$ phone of the seventh appellant had no Sim card and the could not retrieve the phone numbers. The phone call data of the suspects was analysed. Several other phones including that of the deceased, the fourth appellant, the fifth appellant, the second appellant, Kayizi Godfrey alia Golola were - analysed. The call data of Kiwanuka was also analysed. There was no call $\overline{20}$ data for the sixth and seventh appellants.

Finally, PW 26 ASP Nkonge Simon Peter, attached to the Electronic Communications Department and deployed at the cyber-crimes unit of Naguru, testified that he was the forensic analyst. In his report he refers to the phone numbers of the sixth appellant which phone numbers are $25$ 0701552380 and 0772552389 attributed to Kitayimbwa Yoweri. The phone number of the seventh appellant was 0751423277 attributed to Sentongo Damaseni. There is no evidence as to how the police obtained the phone numbers but he obtained information from the police. Most importantly, on 21st of October 2015 phone number 0751423277 attributed to the seventh 30 appellant had no communication with Sim2. Secondly the 2 numbers attributed to the sixth appellant had no communication with Sim2. Sim2 is referred to as number 0392943098. The testimony has no location call data for the sixth and seventh appellants.

Finally, the learned trial judge found that there was call data giving the 35 location of the sixth and seventh appellants. There are detailed printouts

from which we were unable to establish what this call data is. What is $\mathsf{S}$ material being that the location of a mast that was used to relay phone calls from the vicinity of Pine Car Bond is the only evidence. Secondly the learned trial judge referred to the disappearance of the sixth and seventh appellants from Pine Car Bond after the crime. She found this to be conduct inconsistent with the innocence of the sixth and seventh appellants. She $10$ also found that this was strong circumstantial evidence. We do not agree. The location data, if any, can only point to the presence in a general location area but does not mean that anybody among the 40 persons or several other people in the vicinity of the crime scene, could have participated in the commission of the offence. Secondly, the absence of the sixth and $15$ seventh Appellants from the scene of crime after the death of the deceased is insufficient in itself to prove participation. Last but not least, in Simoni Musoke v R [1958] 1 EA 715 at 718 - 719 the East African Court of Appeal held that there should be no other reasonable hypothesis other than the guilt of the accused from the circumstantial evidence for it to be relied on to convict $20$ the accused:

> ...in a case depending exclusively upon circumstantial evidence, he must find before deciding upon conviction that the inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. As it is put in Taylor on Evidence (11th Edn.), p. $74-$

"The circumstances must be such as to produce moral certainty, to the exclusion of every reasonable doubt."

There is also the further principle, which in view of the doubt as to how long the appellant remained at the funeral ceremony on the night of January 18, 1958, is particularly relevant to the first count, and which was stated in the judgment of the Privy Council in Teper v. R. (2), [1952] A. C. 480 at p. 489 as follows:

> "It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."

From the facts we have set out the location of the sixth and seventh Appellants could be explained by the presence of many people at the scene

$25$

- or being in the vicinity on other grounds. Moreover, not a single prosecution $\mathsf{S}$ witness referred to them or testified about their participation in the commission of the crime. In the premises, we agree with the assessors that the participation of the sixth and seventh appellants in the commission of the 3 counts of offences they were convicted of was not proved to the - requisite standard beyond reasonable doubt and their conviction on all the $10$ counts is set aside. The sentence of the sixth and seventh appellants is also set aside on the same grounds and there is no need to consider the other grounds of appeal. The appeal of the sixth and seventh Appellants is allowed

## Aggravated Robbery as against the first, second, third, fifth and eighth 15 **Appellants**

The appellants were also charged with aggravated robbery contrary to sections 285 and 286 of the Penal Code Act and convicted accordingly.

The charge sheet on record shows that the first appellant, the second appellant, the third appellant and the fourth appellant were charged with $20$ aggravated robbery where it was alleged that on the 21st day of October 2015 at Pine Car Bond along Lumumba Avenue in Kampala district, robbed Betty Donna Katushabe (the deceased) of her mobile phone valued at Uganda shillings $300,000/$ = and at, immediately before, and immediately after the said robbery used deadly weapons, to wit, panga and sticks to the $25$ said Betty Donna Katushabe. The learned trial judge found that the prosecution had to prove about 5 ingredients. The first one was that there was a theft. Secondly that there was use of violence. Thirdly there was a threat to use the deadly weapon or that there was the use of a deadly weapon or that the perpetrators caused grievous harm to the victim. $30$ Fourthly that it is the accused persons who robbed the victim or participated in the robbery. Lastly, where there is more than one accused person, common intention has to be proved.

On the ingredient of theft, the learned trial judge found that since the telephone has never been accounted for, the only reasonable conclusion is 35 that it was stolen. She found that the ingredient of theft had been proved. $\mathsf{S}$ On the use of violence, she referred to the assault on the deceased as evidence of violence. On the question of use of a deadly weapon, she found that no deadly weapon was exhibited by the prosecution. However, the court established that the injuries inflicted upon the deceased resulted into grievous harm to the deceased and led to her death. In the premises aggravated robbery had been proved.

$10$

The appeal of the sixth and seventh appellants succeeded on all the 3 counts on the ground of having no evidence of participation in the commission of any of the offences with which they were convicted. This leaves the appeal of the first appellant who filed a separate memorandum of appeal and the $15$ appeal of the second, third, fifth and eighth appellants who filed a joint memorandum of appeal. The two memoranda of appeal have their second ground of appeal on the conviction of aggravated robbery with the contention that not all the ingredients of the offence of aggravated robbery had been proved to the requisite standard of proof. Section 285 of the Penal $20$ Code Act which creates the offence provides that:

285. Definition of robbery.

Any person who steals anything and at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits the felony termed robbery.

286. Punishment for robbery.

- (1) Any person who commits the felony of robbery is liable— - (a) on conviction by a magistrate's court, to imprisonment for ten years; - (b) on conviction by the High Court, to imprisonment for life.

(2) Notwithstanding subsection (1)(b), where at the time of, or immediately before, or immediately after the time of the robbery, an offender uses or threatens to use a deadly weapon or causes death or grievous harm to any person, such offender and any other person jointly concerned in committing such robbery shall, on conviction by the High Court, be sentenced to death.

(3) In subsection (2), "deadly weapon" includes any instrument made or adapted for shooting, stabbing or cutting and any instrument which, when used for offensive purposes, is likely to cause death.

$\mathsf{S}$

$10$

(4) Notwithstanding section 126 of the Trial on Indictments Act, where a person is convicted of the felony of robbery the court shall, unless the offender is sentenced to death, order the person convicted to pay such sum by way of compensation to any person to the prejudice of whom the robbery was committed, as in the opinion of the court is just having regard to the injury or loss suffered by such person, and any such order shall be deemed to be a decree and may be executed in the manner provided by the Civil Procedure Act.

The definition of robbery under section 285 of the PC has some important $15$ ingredients that need to be proved. The first ingredient is that it deals with any person who steals anything and it is therefore essential that theft of something has to be proved. Secondly, it is provided that at or immediately before or immediately after the time of stealing, the person uses or threatens to use actual violence on any person or property in order to obtain $\overline{20}$ or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, commits the felony termed robbery. Obviously, even the threat of the use of actual violence is allied to the stealing or the retention of the property stolen. Secondly, the use or threat of the use of force is also allied to the prevention or overcoming of resistance of the thing being $25$ stolen and retained. Section 286 deals with the aggravation of robbery and the most important ingredient that aggravates the robbery is the use of a lethal weapon. This court considered the necessary element of theft in Kankya Amos v Uganda; Court of Appeal Criminal Appeal No 237 of 2011 where the court found that the charge of aggravated robbery could not be 30 sustained on the basis of 2 elements. Firstly, there was no evidence to show that a gun or other deadly weapon was used upon the deceased and there was circumstantial evidence but no direct evidence of the presence or the use of a deadly weapon. Secondly, the evidence showed that whoever took the deceased's motor vehicle, the subject of the alleged robbery, abandoned 35 it and it was towed to Kyengera police station. The court found that even if the hearsay evidence on that point was accepted, there was no evidence

that the person who abandoned the vehicle intended to deprive the owner $\mathsf{S}$ thereof of the vehicle permanently.

It is therefore essential that the theft of the phone of the deceased should be proven before one can even subject the evidence about the assault and use of a deadly weapon to proof as elements of robbery with aggravation.

- We start our consideration with the first ingredient of theft of the phone. $10$ There is no evidence anywhere that the phone was stolen. As found by the learned trial judge, the phone could not be accounted for. The evidence of the prosecution is clear that the deceased was arrested by police officers on 21st of October 2015. She was brought to Pine Car Bond while in police custody when she was left at the office of the first appellant. PW7 Nyanzi 15 Specioza, a policewoman testified that she went to arrest the deceased with other officers. They arrested her and brought her to Pine Car Bond whereupon she left. Most critically she testified that when heading for the central police station, the deceased requested them to take her to Pine Car Bond for her to finish the matter with the 'rich man' (the first appellant). She $\overline{20}$ left the deceased with the first appellant to enable her reach an understanding about money owed by the deceased to the first appellant. Secondly, PW 23 number 38309 DCPL Magoola Brian testified that the deceased call data on phone number 0752540515 last made a call to phone number 0703119210 at 4:10 PM on 21st of October 2015. This was the same $25$ - day she was arrested and brought to Pine Car Bond. The evidence reviewed above shows that the deceased was taken to Pine Car Bond between 8:30 AM and 9 AM on 21st October, 2015 and thereafter she made several calls to several people on the following numbers namely 0758551629, 0782533084, 0701457720, 0775143668, 07031192101 and 07041713061. She also received 30 calls from 4 of the cited numbers namely from 0758551629, 0701457720, 0703119210, and 07041713061. PW 24 Hamidu Wasaaka found the deceased was handcuffed at around 2 PM. He stated that when he went to check on - the deceased, there were about 20 people around. Further the evidence of PW 3 Twesigye Amon is that he went to the scene at around 5:30 PM with 35 other police officers. They found about 40 people at the scene of the crime.

The evidence suggests that by 5:30 PM the deceased had been beaten or $\mathsf{S}$ assaulted. She last made a call at 4:10 PM and it is likely that she still had a phone. There is no clear explanation as to what happened to the phone of the deceased thereafter. Could the phone have been robbed between 4: 10 - 5:30 PM? PW3 testified that he had a 340,000/= Uganda shillings removed from his pockets but did not realise who had picked it. If the phone went $10$ missing it was after 4:10 PM. There is no evidence how a person who was eventually taken by ambulance to hospital could have lost a phone or how it went missing. Last but not least PW5 ASP Baguma Ronald testified that it was the police who "removed" the deceased from a vehicle in which she was, from Pine Car Bond. This was after 6 PM. The deceased was taken to $15$ CPS and was very weak and could not communicate. There was a lot of coercion which was used to make the deceased pay an alleged debt to the first appellant. There is also further evidence that the deceased had her phone by the time attempts were made to rescue her from her situation. She needed the phone to contact people to raise or bring the money $20$ demanded by her captors.

The fact that the phone could not be accounted for is not evidence of robbery. In the premises, the second ground of appeal of the first appellant, the second ground of appeal of the second, third, fifth and eighth appellants have merit and is allowed. We agree with the assessors that not all the $25$ ingredients of the offence of aggravated robbery was proven against all the appellants. The conviction of all the appellants for the offence of aggravated robbery is hereby set aside.

Grounds of appeal of the first, second, third, fifth and eighth appellants related to their conviction of kidnap with intent to murder.

This cover grounds ground 3 of the first appellant's memorandum of appeal and partially ground 4 on evaluation of evidence. It also covers ground 3 of the appeal of the second, third, fifth, and 8 appellants. Ground 3 of the appeal of the first appellant is that:

The learned trial judge erred in law and fact when she convicted the $\overline{5}$ appellant with kidnap with intent to murder as an additional offence to murder and without proof of all the ingredients of the offence beyond reasonable doubt.

Similarly ground 3 of the memorandum of appeal of the second, third, fifth, and eighth appellants is:

> That the learned trial judge erred in law and fact when she convicted the appellant of the offence of kidnap with intent to murder without proof of all the essential ingredients of the offence beyond reasonable doubt.

- 15 The learned trial judge considered the ingredients of the offence at pages 12 and 13 of her judgment and stated that they are: - 1. Taking away of a person or victim.

$10$

$20$

- 2. The taking away was accompanied by force or fraud. - 3. The taking away was against the victim's will. - 4. The perpetrators of the offence had a contemporaneous intent to murder the victim. - 5. The accused persons were the perpetrators of the crime.

The learned trial judge found that the first appellant instructed the fifth appellant to open a case against the deceased and this was done at the Central Police Station in Kampala reference number SD 54/17/10/15. She $25$ held that on 21st of October 2015 the fifth appellant together with police officers arrested the deceased and handed her over to the first appellant instead of handing her over into police custody. The police officers left on been assured that the parties would resolve the matter. No investigations were carried out on the allegation of stealing a vehicle. The court found that 30 the deceased was taken away from her home by the fifth appellant and police officers. Secondly, the taking away was an act of fraud other than an official arrest. The deceased on arrest had no choice but to comply and it was against her will. Thirdly, on whether there was motivation or intention to murder the victim, the assailants demanded money or threatened to kill 35

$\overline{5}$ the deceased (in other words she was held at ransom). She found that by assaulting the deceased, there was intent to murder. Further, the death of the deceased was the probable consequence of their actions. In the circumstances the learned trial judge found that the offence of kidnap with intent to murder was proved to the requisite standard. In reaching that decision the learned trial judge among other things considered the $10$ Supreme Court decision in Godfrey Tinkamalirwe and Rev Richard Kaliisa v Uganda; Supreme Court Criminal Appeal No 5 of 1988 for the proposition that the burden is on the accused person to prove that he did not have the contemporaneous intent that the victim would be murdered or put in danger of being murdered (section 235 (2) which is now section 243 (2) of the Penal $15$

Code Act).

Section 243 (2) provides that where the person abducted is not seen or heard of within a period of 6 months or more, the accused person shall be presumed to have had the intent or knowledge stipulated in the subsections

- (1) (a) and (b). Section 243 (1) which we have cited above deals with the act $20$ of the use of force or fraud to kidnap, abduct, takeaway or detain any person against his or her will. Before proceeding to the intention under subsection (a) and (b), for the kidnap, abduction, taking away or detention, it should be emphasised that the act of force or fraud used to kidnap, abduct, takeaway - or detain against his or her will should be proved. The offence of kidnap with $25$ intent to murder is created by section 243 of the Penal Code Act which provides that:

243. Kidnapping or detaining with intent to murder, etc.

(1) Any person who by force or fraud kidnaps, abducts, takes away or detains any person against his or her will—

(a) with intent that such person may be murdered or may be so disposed of as to be put in danger of being murdered;

(b) with knowledge that such person will probably be murdered; or

(c) with intent to procure a ransom or benefit for the liberation of such a person from the danger of being murdered, commits an offence and is liable on conviction to suffer death.

(2) Where a person so kidnapped or detained is thereafter not seen or heard of within a period of six months or more, the accused person shall be presumed to have had the intention and knowledge stipulated in subsection (1)(a) and (b).

According to Halsbury's Laws of England 4<sup>th</sup> Edition Reissue Volume 11 (1) paragraph 493 kidnapping is defined as:

... Kidnapping, which is an aggravated form of false 493: Kidnapping. imprisonment, consists of the taking or carrying away of one person by another by force or fraud without the consent of the person so taken or carried away and without lawful excuse.

The facts show that the deceased was arrested by the police but taken to a place that was not gazetted for the detention of anybody and she was detained against her will. The fact that she was detained against her will is proven by the fact that she was assaulted while under detention. Further $20$ she could not have consented to being held under those conditions. Secondly, the deceased had been handcuffed. Thirdly, the element of detention against her will, even if the arrest was initially lawful, was proved. Section 243 (1) (a) and (b) $\&$ (c) deals with the intention. Subsection 1 (a) is to the effect that the intention that the person kidnapped may be murdered $\overline{25}$ or may be so disposed of as to be in danger of being murdered is one of the ingredients. Secondly, in subsection (b) it has to be proved that the accused had knowledge that such a person will probably be murdered. Subsection (c) deals with intent to procure a ransom or benefit for the liberation of such

person from the danger of being murdered. When section 243 (1) of the 30 Penal Code Act is considered in full and in context, one of the ingredients concerns any person who by force or fraud kidnaps, and abducts, takes away or detains any person against his or her will. By use of the disjunctive "or", the use of force or fraud to (a), abduct, (b) take away or (c) detain, are all alternative elements and it suffices to prove only one of them. The issue 35 of whether there was force or fraud to (a), abduct, (b) take away or (c) detain

$10$

$\mathsf{S}$

- can also be established. What has to be proved is the (a), abduction or (b)the $\mathsf{S}$ taking away or (c) the detention against the will of the victim. When it comes to the intention, there are two essential ingredients. The first is that the intention that such person may be murdered or may be so disposed of so as to be in danger of being murdered, with knowledge that such person will probably be murdered. In the alternative by use of the disjunctive "or" $10$ between subsections (b) and (c), of section 243 (1) of the PCA where the use of force or fraud to kidnap, abduct or take away or detain any person against his or her will is accompanied with an intent to procure a ransom or benefit for the liberation of such a person from the danger of being murdered, the offence is committed. Under the circumstances, what needed to be proved $15$ are the two elements of forced or detention by fraud and the seeking of a ransom or benefit to with the threat that the person detained may suffer death if the ransom or benefit is not provided. - Coming to the facts, we agree with the learned trial judge that the initial arrest of the deceased was a lawful arrest having been undertaken by the $\overline{20}$ police. This is irrespective of the fact that there could have been a false complaint against the deceased. Even if the police acted on a false complaint, they were required to detain the suspect in police custody. They did not. Instead, the case of the police officers is that the deceased requested them to take her to Pine Car Bond to negotiate with the first $25$ appellant. That is not material. What is material being that the deceased was thereafter detained or held against her will and was assaulted and battered until the battery was so severe that it caused her death. We also accept the evidence of PW1, PW 2 and PW 3 as well as PW 7 that the purpose of taking the deceased to Pine Car Bond was for her to negotiate the terms of 30 payment of a debt of Uganda shillings 9,000,000/=. Most importantly, whatever the initial intention of the parties to have the deceased taken to Pine Car Bond, it was proven that the deceased was being held at ransom. The fact that she was beaten and eventually died from her injuries is one of the ingredients for the offence of murder. The deceased died anyway from 35 - the assault. The 2 ingredients namely the detention against her will and the intention to procure a ransom or benefit for the liberation of a person from

the danger of being murdered were proved to the satisfaction of the learned $\mathsf{S}$ trial judge on the basis of the evidence. In the circumstances, the only question would be whether there was participation of the first, second. third, fifth and eighth appellants in the commission of the offence of kidnap with intent to obtain a ransom or benefit as stipulated above. While the abduction was actually an arrest, it is the detention subsequently at Pine $10$ Car Bond that fulfils the requirements of section 243 (1) of the PCA.

As far as the participation of the appellants in the offence of kidnap with intent to murder is concerned, this is inextricably intertwined with the offence or the count of murder with which they are also charged. This therefore covers ground 1 of the memorandum of appeal of the first $15$ appellant as well as ground 1 of the memorandum of appeal of the second, third, fifth and eighth appellants. Ground 1 of the memorandum of appeal of the first appellant is that:

## $20$

The learned trial judge erred in law and fact when she convicted the appellant with murder without proof of all the ingredients of the offence beyond reasonable doubt.

Secondly, ground 1 of the appeal of the second, third, fifth and eighth appellants is that:

$25$

$30$

That the learned trial judge erred in law and fact when she convicted the appellants of the offence of murder without proof of all the essential ingredients of the offence beyond reasonable doubt.

The question is whether there was *mens rea* to commit the offences?

As a matter of legal doctrine, we have concluded that the offence of kidnap

with intent to murder was proven on the ground that in terms of section 243 of the Penal Code Act, the appellant was detained against her will thereby proving the necessary ingredient under section 243 (1) of the PC. This was coupled with the ingredient in subsection (1) (c) of intention to procure a ransom or benefit for the liberation of the person from the danger of being murdered. Having found that there was this intention to procure a ransom

or benefit for the liberation of the deceased upon the payment of Uganda $\overline{5}$ shillings 9.000.000/=, it is inevitable upon the death of the deceased from the beating that the intention to murder was no longer an intention and it was sufficient to prove murder which is also a capital offence. The finding of intention is the outcome of the proof of an intention to detain the deceased with the purpose of procuring a benefit to prevent the danger of $10$ being murdered if the benefit is paid. It would be an inconsistency in the law to find intention to detain for ransom and not to find that the perpetrators of the crime are also guilty of murder upon the death of the victim as a consequence of her detention and battery and assault while in detention. What is necessary becomes the unlawful nature of holding a person against $15$ her will and any death thereafter is unlawfully caused fulfilling the necessary ingredient of the offence of murder. What is left to be established is whether there was participation of the remainder of the appellants in the detention and assault of the victim to establish whether there was kidnap with intent to murder and thereby unlawful death that proves the offence of $20$

murder by all or any of them.

$25$

We have carefully reviewed the evidence and will consider the question of participation in the count of kidnap with intent to murder together with the question of participation in the count of murder. Proof of participation may prove both counts of offences.

The first argument of all the appellants is that there is no proof that the death of the deceased was caused by the injuries inflicted upon her pursuant to her detention at Pine Car Bond. We have examined the evidence of the cause of death. The deceased was picked from her home on 21<sup>st</sup> October, 2015 and taken to Pine Car Bond between 8:30 AM and 900 a.m. While at Pine Car Bond, she was physically assaulted and by the time a police ambulance took her to the hospital between 7 PM and 8 PM, she was very weak and "non-responsive".

PW3 Dr Male Mutumba carried out a post-mortem on the deceased on 2<sup>nd</sup> October, 2015. There was a pool of blood on the back of her body. There was 35 a bruised left side of the face. There was bleeding into the skin where there

- was a dark patch. There was extensive bruising of the left upper limbs and $\mathsf{S}$ bleeding into the skin extending from the shoulder joint to the tips of the fingers on the back of arm. There were abrasions on the same limb. There was also extensive bruising of the right upper limb from the shoulder joint to the fingertips. There was extensive bruising of the right lower limb extending from the middle of the thigh up to the foot. There were also $10$ abrasions. Extensive bleeding on the left thigh from the middle of the thigh to the foot. There was bleeding on the skin of the left skull. The brain and its coverings were congested with blood. The internal membrane of the heart had bleeding. Organs within the abdomen were congested with blood. - The appellants emphasised the finding of the doctor that the uterus had $15$ multiple fibroids that were not traumatic. The conclusion of the doctor was that the victim died of multiple blunt force trauma injuries. The post-mortem report was admitted as exhibit P1. He was cross examined on other possible causes of death. He testified that it is the extensive injuries and blunt trauma caused bleeding in the tissues that resulted in the death of the $20$ deceased. Though he testified that the liver had fat deposits which could cause death, and that the multiple fibroids in the uterus can also cause death, he clarified on re-examination that he had no doubt as to what caused the death of the deceased. The cause of death was multiple blunt trauma injuries. There is therefore evidence to support the finding of the $\overline{25}$ learned trial judge that the death was caused by the assault on the deceased while she was at Pine Car Bond.

As far as participation is concerned, the evidence is that the first appellant was owed Uganda shillings 9,000,000 by the deceased and which was secured by two post-dated cheques meant to mature on 30<sup>th</sup> October 2015 30 and 31<sup>st</sup> of November 2015 respectively. Evidence of the prosecution is that the first appellant instructed the fifth appellant to report a case of theft of a motor vehicle by the deceased. It was pursuant to this report that the first appellant in coordination with the police instructed the fifth appellant to go with police officers to have the deceased arrested from her home and 35 brought to his office at Pine Car Bond. The vehicle which took the police - officers was driven by the fifth appellant. Forensic evidence and particularly $\mathsf{S}$ the evidence of PW 23 D/CPL Magoola Brian exhibit P18 shows that the fifth appellant was in touch with the first appellant in the morning hours when they went to arrest the deceased. Further evidence is the data analysis report of PW 26 exhibit P 57 that gives an analysis of the communication - between the first appellant and the fifth appellant. The fifth appellant was $10$ also the driver who brought the deceased to Pine Car Bond. Thereafter the deceased was handed over to the first appellant. There is evidence that the first appellant also went to Mengo area after the deceased was brought to his office. However, police officer PW 7 Nyanzi Specioza testified that she - left the deceased in the hands of the first appellant for purposes of $15$ negotiations about the debt. Further, evidence we have reviewed shows that the first appellant demanded his money from the deceased and started assaulting her. Secondly other persons also assaulted the deceased (see evidence of PW7). - The learned trial judge found that the home of the fifth appellant had $20$ handcuffs which had been used to handcuff the deceased while at the business premises of the first appellant. The evidence also shows that the second appellant was identified by PW 3. PW 3 identified the third appellant and also the fourth appellant. PW3 was identified by PW 7. We have critically examined the evidence of PW1, PW 2, PW 3 and PW 7 as well as other $\overline{25}$ material prosecution witnesses.

Direct evidence of participation is that of PW1 Tusiime Peter, a legal assistant who acted on the instructions of Annette Kobusingye (PW 2) who went to Pine Car Bond to check on the plight of the deceased. While at Pine Car Bond, he met the first appellant. This was around 4 PM on 21<sup>st</sup> of October $30$ 2015. Upon reaching Pine Car Bond, he found that the deceased had wounds on her face and legs. 6 men surrounded the deceased. The deceased informed PW3 that she had been kidnapped. Upon the first appellant hearing those words, he jumped up and started kicking the deceased on the breasts, and private parts. The first appellant demanded Uganda shillings $35$ 9,000,000/= from the deceased. The first appellant told him that if he did not

receive his money by 7 PM that day, the deceased would be dead. However, $\mathsf{S}$ PW1 did not recall or identify the other 6 men. He only identified the first appellant.

PW2 Kobusingye Annett knew the deceased as a client. On 21<sup>st</sup> October, she received a call from one Edison Kanvambirwa to the effect that the deceased had been kidnapped and was at Pine Car Bond with the first $10$ appellant. She requested PW1 Tusiime Peter to go and find out what was happening. She recalls what she was told. Her direct evidence is that she received a call from number 0752198368 requesting her to pay Uganda shillings 9,000,000/= or the deceased would be killed. This number was eventually traced to the fifth appellant. She heard someone being slapped $15$ and a scream during that phone call. She also sent PW3 Twesigye Amon to the central police station in Kampala to see if they were handling the matter. The only direct evidence is the phone contact used to call her which implicates the fifth appellant.

**PW3 Twesigye Amon** corroborates the testimony of the first two witnesses $20$ (PW1 and PW2). He testified that when it was coming to about 5:30 PM he went with 2 police officers to Pine Car Bond. He found about 40 people at Pine Car Bond. It is the first appellant who asked him to identify himself. He gave his identification card to first Appellant and he loudly called one "Golola" whereupon four guys came up and roughed him up. He refers to $\overline{25}$ the men as "strongmen". He was assaulted. He was made to talk to a man on a phone handed over to him by the first appellant and the voice on the phone told him that they were tired of lawyers defending thieves who steal their vehicles. He was taken to a room where the deceased was seated on instructions of the first appellant and treated as a fellow suspect with the $30$ deceased. The deceased was weak and could hardly stand up. She was helped to stand and escorted to a car eventually availed by the first appellant whereupon they were driven to Kampala Central Police Station by the fourth appellant (as the driver of the car). It is the eighth appellant who sat in front while the 2 police officers, PW3 and the deceased were seated 35 at the back of the car. Upon reaching the central police station, the police

officers got out of the car but the eighth appellant remained in the car. The $\mathsf{S}$ fourth appellant started driving back towards Pine Car Bond and he jumped out of the car near the commercial court premises on Lumumba Avenue. In an identification parade, he identified the fourth appellant (the driver). He also identified the second appellant as the person who was punching him while he was at Pine Car Bond. He also identified the first appellant. $10$

Other witnesses are professional doctors and police officers whose testimonies are not relevant to the question of participation of the appellants and we do not need to refer to their testimonies.

PW7 No 059W SPC Nyanzi Specioza was one of the women officers who went to arrest the deceased from her home and brought her to Pine Car $15$ Bond. She went with 3 other police officers. The driver of the vehicle which they used to go to Bwebajja and at the home of the deceased was the fifth appellant. At the request of the deceased, they went to Pine Car Bond to see the "rich man". She eventually found out that the "rich man" was the first appellant. The deceased wanted to "finish the matter" with the "rich man". $20$ She left the deceased at the office of the "big man" and then left. She identified the first appellant and the fifth appellant only.

**PW8 DAIP Wolimbwa Stephen** conducted an identification parade.

PW9 DAIP Amanzuruku Francis was at Kampala Central Police Station at around 6:30 PM on 21st of October 2015. He was assigned together with the $25$ police constable Beatrice Batio to go and rescue a woman who was being held at Pine Car Bond. He saw the first appellant who had two "Gololas" which we establish is the name for "bouncers" or "strongmen". They were taken where the deceased was. She was lying on the sofa, very dirty and covered with dust. The deceased informed him that she had been beaten but 30 did not name the persons who did. He only identified the first appellant.

PW12 No 533493 PC Beatrice Batio went with PW9 Amanzuruku Francis. She identified the eighth appellant (Shaban Odutu) among the people who roughed up the lawyer who had come to check on the deceased (PW 3).

PW14 Sgt Nyakana David was the police ambulance driver that took the $\mathsf{S}$ deceased to hospital and this evidence does not have any material on the participation of the appellants.

PW14 DIP Dranikuh Eria Maxwell was involved in the investigation of the murder case. He participated in the arrest of the fifth appellant. PW16 Masereka John Detective Constable No 955933 arrested the eighth $10$ appellant. PW17 No 45477 PC Opolot Peter was the station officer at Bwabajja Police Post and booked some police officers who went to arrest the deceased. PW18 Detective Sqt Baluma Robert recorded statements from the first appellant, the second appellant and the third appellant. The statement recorded was exhibited as exhibit D1. DW19 DAIP Turvagenda $15$ Erifazi was involved in conducting a search of Pine Car Bond and was involved in arresting the fourth appellant as the driver of the vehicle which took the deceased from Pine Car Bond to the central police station and back. His statement is exhibited as exhibit D2. **PW20 Pius Caningon** *inter alia* took samples from the scene of crime. PW21 No 40132 Detective Cpl Osekanvi $20$ **Alex** was the scenes of crime investigator after the commission of the crime and took photos of the body among other things.

**PW22 Onen Godfrey** carried out forensic analysis that only matched blood from the scene of crime to that of the deceased. He also established that the blood samples did not match with that of the appellants.

$25$

PW23 No 38309 Detective Cpl Magoola Brian analysed the data printouts from phones of the appellants, the witnesses and the deceased and established timelines and location data of the phones. His evidence shows that the second appellant was located around Buganda road telecommunications Mast between 10:10 AM and 4:10 PM on 21st of October $30$ 2015. Further his analysis located the phone of the third appellant around Buganda road Mast between 9 AM and 4 PM on 21st October, 2015. Call data also revealed the location of the fourth appellant around the MTN Mast at Rwenzori Towers between 11:40 AM and 4 PM on 21st of October 2015.

PW24 Mustafa Semulinde was the defence secretary of the local Council at $\mathsf{S}$ Pine Car Bond. He found the deceased around 2 PM handcuffed and about 4 men namely Godi, Golola, Philip, and an informer called Paul. He requested them to remove the handcuffs and Paul got keys and removed the handcuffs. In cross examination he mentioned the 4 men as Godi, Golola, Philip and Paul. He requested them and one Kiwanuka alias Damage told $10$ them to stop beating the deceased. This is the most direct evidence of the beating of the deceased on record. In cross examination he testified that Paul was not present in court.

PW25 DAIP Walya Peter was assigned the task of investigating the crime. By the time he was assigned, there were 4 suspects namely the first $15$ appellant, the second appellant, the third appellant and the fourth appellant. (Please note that page 178 of the record is missing.) The evidence shows that he arrested the sixth appellant and the seventh appellant whose appeals we have allowed.

Finally, PW 26 Nkonge Simon Peter, a data analyst/digital forensic analyst $20$ carried out an analysis of phone call data printouts of several mobile phones belonging to the deceased, the first appellant, the second appellant, the third appellant, the fourth appellant, the sixth and seventh appellant, Mr Kiwanuka Samuel, Muhindo Edison and the fifth appellant. He does not have any direct evidence of participation of the appellants. $25$

The defendants gave their testimonies not on oath and were not cross examined.

DW1 Sebuwufu Mohammed, the 1<sup>st</sup> appellant testified not on oath and was not cross examined. The gist of his testimony is that he was called by one Kiwanuka on his way from home to office around 8:30 AM. Kiwanuka told 30 him he had arrested a lady using police officers. She wanted to pay him Uganda shillings 4,000,000/= for a vehicle her had sold to her. He arrived at Pine car Bond around 9 AM though he was supposed to proceed to Mengo court the same day for a hearing. He found the lady with 3 police officers. She gave him a cheque for some money and the cheque was supposed to 35

- mature on 30<sup>th</sup> October 2015. He found Mr Kiwanuka and a special hire driver $\mathsf{S}$ was also there. He left the lady with Kiwanuka and 3 men and left for Mengo court around 10:30 AM. He was in court until 3 PM from which it can be inferred that he came back after 3 PM. When he came back he noticed many people in the office of Kiwanuka shouting that there was a lady who had stolen Kiwanuka's vehicle. He called at the District Police Commander Mr $10$ Baguma Aaron and when he arrived he showed him the office of Kiwanuka where the lady was. Later that day 2 police officers arrived and he subsequently asked a special hire taxi driver to take them police officers and the lady to the police. The vehicle taking the deceased was followed by a mob. Subsequently, he saw the taxi driver (A4) come back with double 15 indicators flashing on after 20 minutes with the lady still in the car. He called police officer Mugabi to come and rescue the lady from mob justice. The lady was told to get off the special hire vehicle and was taken by the police. At 8:30 PM he was called by police officer Mugabi to say that the lady was doing poorly or was dead. He denied the statement of PW1 that he kicked $\overline{20}$ the lady. He also stated that he never called Kobusingye Annette (PW 2). He further stated that he never saw PW 3 that day. As far as this testimony of PW 7 is concerned, he was not the "rich man" in her testimony. Further stated that the office where samples of blood were taken belonged to Mr Kiwanuka. He further stated that his telephone numbers are 0772650846. $25$ 0392943989 but telephone number 0788828071 is unknown to him. He further testified that he does not know the 2<sup>nd</sup> appellant, the 3<sup>rd</sup> appellant, the $6^{\text{th}}$ appellant, the $7^{\text{th}}$ appellant and $8^{\text{th}}$ appellant. He did not know the $5^{\text{th}}$ appellant until he came with the lady to the office. He does not refer to the - testimony of PW1 24. He further testified that PW1, PW2 and PW3 wanted to $30$ be paid Uganda shillings 10,000,000,000/= or else they would testify against him but he did not have the money that is why they fabricated evidence against him.

With regard to the alibi of the 1<sup>st</sup> appellant, DW9 Brian Tindyeba, an advocate confirmed that he went with the 1<sup>st</sup> appellant to the chief magistrates Court 35 at Mengo. The 1<sup>st</sup> appellant came around 11:30 AM. They were supposed to visit the locus of a land dispute with the magistrate. They were in court up

$\overline{72}$

to 2:30 PM. Thereafter there was a break of 45 minutes and when the $\mathsf{S}$ magistrate returned at around 3:30 PM, he cancelled the locus visit. The proceedings of the court were admitted as exhibit D7. From the testimony, the 1<sup>st</sup> appellant must have left to Mengo court after 3:30 PM on 21<sup>st</sup> of October 2015. It can be inferred that between 11.00 am and 3.30 pm the first appellant was not at pine car Bond, the scene of the crime. $10$

We have further considered the testimony of DW 5, the $5^{\mbox{\scriptsize th}}$ appellant $Mr$ Tasingika Paul. DW5 also gave his testimony not on oath and was not cross examined. His testimony is that on 17<sup>th</sup> October, 2015 he was called by Baguma Aaron who introduced to him Mr. Kiwanuka Sam so that he takes him to Bwebajja (home of the deceased) together with other police officers.

- $15$ It was about a vehicle valued at 50,000,000 which was alleged to have been stolen. They went to was the home of the deceased but on further communication with an informant on the phone, they turned back. On 18<sup>th</sup> October, 2015 they again drove to the home of the deceased but did not find - her at home. On 21st October 2021, he drove his vehicle UAM 209T when a $20$ police officer called him to go to the central police station. He went back to the home of the deceased in the company of several police officers and a female officer arrested the deceased after they found her in at her home. The deceased was arrested for theft of a Prado TX vehicle. As they were - heading for CPS, the deceased requested to be taken to Pine car Bond to $25$ the office of Mr Kiwanuka to settle the matter. He did not know Kiwanuka's office and it was the deceased who directed them to it. They went and sat in the office of Kiwanuka but he was not there.

At around 9 AM, the 1<sup>st</sup> appellant came in and asked for Mr Kiwanuka. The deceased started calling one Edison to talk to Mr Kiwanuka. When Mr 30 Kiwanuka came in, the deceased stated that she had sold the vehicle to a buyer from DRC. The deceased requested for the logbook of the vehicle she had bought from the 1<sup>st</sup> appellant to give to Mr Kiwanuka as security. Thereafter Mr Kiwanuka gave him Uganda shillings 100,000/= with instructions to give Uganda shillings 20,000/= to the police woman NYANZI 35 and to give the other policemen Uganda shillings 10,000 each which he did.

He was left with Uganda shillings 60,000/= which were his charges for the $\overline{5}$ transport services. The police woman constable left after being paid. She left 2 police men officers behind. He also left to take a customer to the Ministry of health from a craft shop along Buganda road. Thereafter he went to Fairway Hotel and back to his work station along Buganda road. He admitted having called PW2 on instructions of the deceased and it was a lie $10$ that she heard a threat to kill the deceased and her screams. He admitted going with police officers to arrest the deceased. He testified that the phone of the deceased remained in the car and it was the police woman constable who picked it and took it to the deceased. That it was a lie that handcuffs were found at his home after the police searched it. They found 4 phones $15$ and the handcuffs were a fabrication of evidence. He does not work with security agents. He contended that no fingerprints were got on the handcuffs to prove they were his. He disputed the testimony of PW 15. Further he stated that he had never seen PW 24. He was in touched with the district police commander Mr Baguma, the officer in charge of the central $20$ police station, and it is the district police commander who gave him the assignment to take police officers to arrest the deceased. He further admitted that the 1<sup>st</sup> appellant called him 3 times to find out what happened at Pine Car Bond as he did not know what was happening and left at around the midday. $25$

DW2 who is the 2<sup>nd</sup> appellant Mr Kayizza Godfrey alias Godi did not give his statement on oath and was not cross examined. He testified that he is a motor vehicle mechanic working from Kasubi. He was picked by police flying squad and told to pay Uganda shillings 2,000,000/= which he did not have. Because he didn't have the money he was charged with murder and 30 does not know the deceased. He does not know any of the accused persons (the other appellants). He was arrested by a police officer Mr Katende Faisal who never even appeared in court to explain the reason for his arrest. He further testified that the phone number 0752872601 referred to in exhibit P 57 is not his phone. He never worked for the 1<sup>st</sup> appellant as a bouncer.

DW3, the 3<sup>rd</sup> appellant Mr Philip Mirambe did not give his evidence on oath $\mathsf{S}$ and was not cross examined. He testified that he knows the 5<sup>th</sup> appellant as a special hire taxi driver. He knows the $4<sup>th</sup>$ appellant as a special hire taxi driver. On 21<sup>st</sup> of October 2015 he was on the roadside. Perhaps that is when PW2 saw him. He denied ever working with the 1<sup>st</sup> appellant. He recalls that as a broker he used to take customers to the 1<sup>st</sup> appellant. He was tortured $10$ for two days to persuade him to admit the charges.

DW4 Lwanga Stephen did not appeal. He confirms having taken the deceased together with 2 police officers and PW 3 to the central police station which he found that the gate was closed. He was instructed by the 1<sup>st</sup> appellant and paid Uganda shillings 20,000/= subsequently, when he $15$ reached the CPS, the entrance was blocked. He stopped at the fence. The policewoman got out and another policeman got out. The deceased and the young man remained in the car. After waiting for a while, he requested the policeman to open for the passengers. He was asked to enter the police station and make a statement. He requested the passengers to get out but $20$ they were nonresponsive. He decided to take them back and it is not true that the young man jumped out. He only got out after he had reached Pine Car Bond where he had picked them from. He does not know the $5^{\rm th}$ appellant and his vehicle was not used in the morning by the 5<sup>th</sup> appellant. After some time, the police came and picked the lady from his car. The $25$

policeman came in a patrol vehicle.

DW6 and DW7 exercised their right to remain silent.

DW8 Odutu Shaban (alias Golola) did not give his evidence on oath and he was not cross examined. He stated that he does not know anything about the death of the deceased. He was arrested and tortured and does not know $30$ the name "Golola". He is not a "Kanyama" of the 1<sup>st</sup> appellant.

A critical review of the evidence above will resolve some of the issues raised by the defence. With that with an examination of the assertion of the 1<sup>st</sup> appellant that he does not know the 5<sup>th</sup> appellant. Yet call data shows that there was communication between the $5^{th}$ appellant and the $1^{st}$ appellant.

Exhibit P 36 which has data analysed by Detective Cpl Magoola Brian who $\varsigma$ testified as PW1 23 demonstrates communication between the phones of the $1<sup>st</sup>$ appellant and the $5<sup>th</sup>$ appellant. The $5<sup>th</sup>$ appellant called the $1<sup>st</sup>$ appellant and was therefore in touch with him. Further, the 1<sup>st</sup> appellant denied that phone number 0788828071 belong to him. An analysis of the exhibits demonstrates that this particular phone number did not have any phone call $10$ data that was material to the case in that PW 26 ASP Nkonge Peter shows that the particular telephone number does not belong to the 1<sup>st</sup> appellant. This was however not relevant. The evidence by PW1 25 is that 4 phones were recovered from the 1<sup>st</sup> appellant and it is one of these phones Nokia N6 760 CL classic IME 355582380340444 which had the phone number $15$ 0788828071. Exhibit 36A shows that the subscriber to the phone is not in the 1<sup>st</sup> appellant and this evidence came from the prosecution witness.

Further the testimony of the 1<sup>st</sup> appellant is that samples of blood used to establish whether the blood belonged to the deceased were not taken from his office. This testimony is countered by the testimony of various $20$ witnesses. PW 25 DAIP Walva Henry Peter testified that samples were taken from the office of the 1<sup>st</sup> appellant. Secondly, PW24 found the deceased in the office of the 1<sup>st</sup> appellant. He is the secretary for defence. Thirdly, PW1 found the deceased in the office of the 1<sup>st</sup> appellant. Similarly, PW3 was taken to the office of the 1<sup>st</sup> appellant where he found the deceased. Last but $\overline{25}$ not least the woman police officer PW7 Nyanzi Specioza testified that the deceased was going to negotiate with the "rich man" and she identified the rich man as the 1<sup>st</sup> appellant. The learned trial judge believed the prosecution evidence and is believed the testimony of fire and the 1<sup>st</sup> appellant that the deceased was taken to the office of Mr Kiwanuka. $30$

We have further considered the alibi of the 1<sup>st</sup> appellant which is to the effect that he was not in Pine car bond possibly between 11 AM and 3:30 PM. However, the testimony of PW7 clearly indicates that the found the appellant after they reached Pine car bond between 8.30 AM and 9.00 AM on 21<sup>st</sup> of October 2015. By this time the 1<sup>st</sup> appellant was still in his premises at Pine car bond. Secondly the testimony of PW1 and PW3 clearly indicates that they

met the 1<sup>st</sup> appellant after 4 PM on 21<sup>st</sup> of October 2015. PW 24 was cross $\overline{5}$ examined by the prosecution upon being declared a hostile witness and also testified that the deceased was in the office of the 1<sup>st</sup> appellant though he did not mention anything about the presence of the 1<sup>st</sup> appellant at the time he went to his office upon receiving information that someone was being tortured there. PW24 went there around 2 PM. We have considered this $10$ against the testimony of the 1<sup>st</sup> appellant that he was called by Kiwanuka around 8:30 AM on 21<sup>st</sup> of October 2015 and that he was informed that the deceased had been arrested. But when he went to the office of Mr Kiwanuka, Mr Kiwanuka was not there. The 5<sup>th</sup> appellant on the other hand testified that the 1<sup>st</sup> appellant came to the office of Kiwanuka and Kiwanuka was the $15$ person who sent him to take police officers to arrest the deceased. He admitted that he was in communication with the 1<sup>st</sup> appellant who wanted to know what was happening at Pine car bond. Call data analysed by PW 23 Detective Cpl Magola Brian shows that the 1<sup>st</sup> appellant communicated with Kiwanuka at 9:20 AM. At 1:30 PM the 1<sup>st</sup> appellant was around Mengo area. $\overline{20}$ However, at 2 PM his phone was picked by the Rwenzori masts and he was in the vicinity of that area which is near Pine Car Bond. Again around 4:30 PM he was in the vicinity of Rwenzori towers. This is when he had come back to Pine Car Bond as reflected in the testimony of PW1 and PW3. He made a last call to Kiwanuka at 7:20 PM. We have considered the fact that $25$ Kiwanuka is still at large and was neither arrested nor prosecuted. He was not summoned as a witness and the inference is that he is a wanted person

and a fugitive from the law.

The analysis of the evidence demonstrates that the first appellant was linked to the arrest of the deceased. Secondly the deceased was kept at his $30$ office where she was assaulted. The evidence is that he participated in battering the deceased at one point when she said that she had been beaten. He is implicated in treating PW3 as a fellow suspect for the reported theft of a vehicle and made PW3 speak to Kiwanuka on the phone. His acts are inextricably bound with that of the persons who arrested, took the deceased 35 to Pine Car bond and assaulted and battered her. These acts were unlawful per se. We find no basis for faulting the learned trial judge for not conforming to the opinion of the assessors in some material respects. The $\overline{5}$ evidence clearly implicates the first appellant. The question should be whether he should be convicted of murder. Secondly whether, he should be convicted of kidnapping with intent to murder.

We note that Lwanga Stephen who drove the deceased from Pine Car Bond to the Central Police Station and back to Pine Car Bond did not appeal his $10$ conviction and sentence. He acted on the instructions of the first appellant.

As far as the fifth appellant is concerned, he was involved in carrying out the errant of the first appellant and admittedly he stated that he acted on instructions of Kiwanuka alias Damage in terms of his transportation of police to go on a mission to arrest the deceased. Soon after the deceased 15 was brought to Pine Car Bond, A5 testified that the first appellant was supposed to give the deceased a log book of a car to use as security. This is made plausible by the existence of a check issued by the deceased or on her instructions to pay the first appellant some money. There is no other direct evidence other than the unclear testimony of PW24 that the $5^{\rm th}$ $20$ Appellant participated in the assault of the deceased. The other evidence is in the testimony of PW2 Ms Annette Kobusingye who testified that she received a phone call from a number which was traced to A5 in which she was told to produce Uganda Shillings 9,000,000/- to have the deceased released and she was made to listen to and heard someone being slapped $25$ and a scream. The $5^{\mbox{\tiny th}}$ appellant denies this testimony but admits that he called PW2. His version is that it was the deceased who requested him to call PW2 and that there was no threat or screaming of the deceased. We note that Kiwanuka is still at large and the 5<sup>th</sup> appellant maintains that it is Kiwanuka who hired him to take policemen to arrest the deceased. The 30 name of Kiwanuka features in many places and creates an element of doubt as to whether he indeed was the "rich man" referred to by PW7. Secondly PW3 was made to talk to another man who was Kiwanuka. This raises doubt as to whether it was not Kiwanuka who actively participated in having the deceased arrested for theft of a vehicle. Nonetheless, there is a clear link between Kiwanuka and the 1<sup>st</sup> appellant. Secondly the prosecution evidence

- supports the presence of the 1<sup>st</sup> appellant at the scene of the crime in the ta 🚽 $\mathsf{S}$ early hours of the morning after 4:30 PM. Clearly the police were collaborating with the $1^{\rm st}$ appellant. This is evidenced by the testimony of PW3 that he was also arrested and treated as a suspect in the case of theft. - The fifth appellant is said to have reported a case of theft against the deceased leading to her arrest in which he participated and also acted on $10$ the instruction of the first appellant. On the other hand, his testimony is that it is Mr Kiwanuka who had the deceased arrested and informed the first appellant to get paid. He drove the deceased to Pine Car Bond. There is further evidence that supports the testimony of the $5^{\rm th}$ appellant that he left the area around 11.30 AM and left the police at the scene of crime. He took $15$ a customer to the Ministry of health and thereafter went to Fairway Hotel and subsequently went to his workstation along Buganda Road. Reporting a case of theft and participating in an arrest by the police cannot be culpable per se and malicious prosecution is actionable as a civil wrong where an arrest is instigated without probable cause. PW7, a police officer testified $\overline{20}$ - that they were going to take the deceased to the Central Police Station after arresting her and her testimony supports the unsworn testimony of the fifth Appellant that it was the deceased who requested to be taken to Pine Car Bond instead of CPS to enable her negotiate a settlement of the matter. - Further PW24 when asked in cross examination who Paul (one of the $25$ persons he said were involved in assaulting the deceased was) said that Paul was not present in court. The 5<sup>th</sup> Appellant was in court when he said this. According to PW24 Paul has handcuffed the deceased. Further that Mr. Kiwanuka ordered the handcuffs to be removed from the deceased. There - is some doubt as to what really happened in terms of the participation of 30 the fifth appellant. The testimony of the fifth appellant appears to be more coherent because, he left the scene of the crime at 11.30 am and went about doing some other taxi business and his movements is confirmed by call data printouts. After A5 left at 11.30 am, the deceased continued to communicate - to various other persons using her phone. Moreover, PW24 heard about the 35 assault around 2.00 pm. PW1 found that the deceased had been battered after 4.00 pm. Similarly, the timeline of the testimony of PW3 is after 5.30

- PM. We note that the evidence of PW24 was discredited through being $\overline{5}$ declared a hostile witness and cross examination by the Prosecution. He even refers to a certain Paul as an informer. Further the 5<sup>th</sup> appellant continued to carry on taxi business after he left the crime scene upon being paid his dues as a taxi driver. Moreover, he left when the deceased was still - with two male police officers after PW 7 Nyanzi Specioza had left. Further $10$ PW2 Kobusingye Annette first received a call from Edison Kanyambirwa at around 11.00 am about the kidnap of the deceased and her being at Pine Car Bond. She testified that soon thereafter, she got a call from 0752198368 which was subsequently traced to the fifth appellant. The question of the actual timing of the assault of the deceased remained unclear as far as the $15$ - fifth appellant is concerned. The circumstantial evidence does not irresistibly point to the participation of the fifth appellant in the assault of the deceased. We find insufficient evidence to sustain the conviction of the appellant of the counts of kidnap with intent to murder and murder. It is also unsafe to sustain that conviction and we accordingly allow the appeal of the $20$ 5<sup>th</sup> appellant and set aside his conviction and sentence. He shall be set free unless held on other charges.

The second appellant is implicated by PW 24 and PW 3. He was one of the "strongmen" who participated in assaulting PW3. Though he was not implicated by PW 3 he is clearly implicated by PW24. Similarly, PW 8 is $25$ implicated by PW3 among the strongmen who were acting on instructions of the first appellant. PW12 Beatrice Batio identified the eighth Appellant as one of the persons at Pine Car Bond with the first Appellant. There is strong circumstantial evidence implicating the 2<sup>nd</sup> Appellant and the 3<sup>rd</sup> Appellant in assaulting the deceased. There is clear evidence that the deceased died $30$ from being battered by blunt objects whether they be fists, sticks or other objects is not necessary to establish. The inference is that she was beaten up.

To sum up on matters of doctrine the detention of the deceased at Pine Car Bond was against her will and unlawful. The battery of the deceased was

unlawful. The demand for payment of a debt from the deceased under those $\mathsf{S}$ circumstances was unlawful.

The appellants submitted that there was no malice aforethought to prove the offence of murder. The basis of the submission is the wording of section 188 of the Penal Code Act which defines the offence of murder and which provides that:

188. Murder.

Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder.

The key elements of section 188 that prove the offence of murder are the elements of malice aforethought, causing the death of another by an $15$ unlawful act or omission. The expression "malice aforethought" is not defined though one may be able to discern the meaning of an "unlawful act or omission" which we have set out above in that the detention, battery of the deceased and the demand for payment from her or her friends was were unlawful acts. Because death resulted from those unlawful acts, a critical $20$ ingredient of the offence of murder has been proved. Because the term "malice aforethought" is not defined, resort is had to section 1 of the Penal **Code Act Cap 120** which gives the general rule of construction under section 1 thereof as:

1. General rule of construction. $25$

> This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.

$10$

We have reviewed some of the English authorities on the meaning of the word "malice aforethought". Secondly, we have considered section 2 (f) and (g) which defines the terms "grievous harm" and "harm" which expressly defined the term under the **Penal Code Act** as follows:

(f) "grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;

Section 2 (g) "harm" means any bodily hurt, disease or disorder whether permanent or temporary;

The term "malice aforethought" can be considered together with the meaning of causation in cases of homicide. According to **Halsbury's laws of England 4<sup>th</sup> Edition Reissue Volume 11 (1)** paragraph 430:

430. Causation. For the purposes of offences of homicide, a person causes the death of another whereby any act or omission he accelerates the death of that other. The act or omission need not be the sole or the substantial cause but it must be one of the causes, and one that is more than minimal.

Specifically, Halsbury's laws of England (supra) in paragraph 431 defines the word "malice aforethought" as follows:

431. Malice aforethought. The mental element of murder, traditionally called $20$ malice aforethought, may take the form of an intention to kill or an intention to cause grievous bodily harm. Intent is the essential element in both forms of malice aforethought.

It follows that an intention to cause grievous bodily harm is sufficient to prove malice aforethought if death is caused thereby. We agree with the $25$ definition in R v Cunningham [1957] 2 All ER 412 cited with approval by the Court of Appeal of England in R v Cato and others [1976] 1 All ER 260 at 269 per Lord Widgery CJ that:

Then Byrne J, after referring to four cases, continued:

We have considered those cases, and we have also considered, in light of those cases, the following principle which was propounded by the late Prof CS Kelly in the first edition of his Outlines of Criminal Law published in 1902 and repeated in the sixteenth edition, edited by Mr J. W. Cecil Turner and published in 1952, ibid at p. 186 "...in any statutory definition of a crime, malice must be taken not in the old vague sense of 'wickedness' in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done; or (ii) recklessness as to whether such harm should occur or not (i.e. the accused has

$\mathsf{S}$

$10$

$15$

foreseen the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured" ...'

We think that this is an accurate statement of the law.

There is overwhelming circumstantial evidence that the $2^{\text{nd}},\ 3^{\text{rd}}$ and $8^{\text{th}}$ Appellants participated in the assault of the deceased. The battery of the $10$ deceased caused her death in that there was an intention to cause her arievous harm by beating her. This is proved by the post mortem report. There is no need to convict the appellants of the count of kidnap with intent to murder. It was no longer an intend as malice aforethought is inferred and death was caused. We accordingly acquit them of the conviction for $15$ aggravated robbery and kidnap with intent to murder. The assault on the deceased was so brutal that we sustain the conviction of the $2^{\text{nd}},\,3^{\text{rd}}$ and $8^{\text{th}}$ Appellants on the count of murder.

As far as the first appellant is concerned, the assault took place in his office. He participated in kicking the deceased. The 2<sup>nd</sup>, 3<sup>rd</sup> and 8<sup>th</sup> appellants acted $20$ on his behalf. He had PW3 arrested briefly and assaulted by the strong men on suspicion of being a suspect of theft. In the premises, his acts were inextricably bound with those of the $2^{\rm nd},\,3^{\rm rd}$ and $8^{\rm th}$ appellants as well as in the arrest and unlawful assault and battery of the deceased. We allow his appeal on the count of kidnap with intent to murder and aggravated robbery $25$ and set aside his conviction and sentence.

We disallow the 1<sup>st</sup> Appellant's appeal on the count of murder and sustain his conviction for murder accordingly.

$30$

$\mathsf{S}$

This disposes of grounds the rest of the grounds of appeal of the 1<sup>st</sup>, 2<sup>nd</sup>, 3<sup>rd</sup>, and $8^{\rm th}$ appellants leaving only grounds 6 and 7 of the appeal of the $2^{\rm nd},\,3^{\rm rd}$ and $8^{th}$ appellants and grounds 8 and 9 of the $1^{st}$ appellants appeal. These grounds may be broadly categorized as an appeal against sentence and order of compensation.

## Appeal against sentence and order of compensation $\mathsf{S}$

Having allowed the appeal against the conviction and sentence on the counts of aggravated robbery and kidnap with intent to murder for all the appellants, we shall only consider the sentence for the offence of murder and the order of compensation.

## **Sentence of imprisonment** $10$

The appellants submitted that the sentence of 40 years' imprisonment for the offence of murder was harsh and excessive. We have accordingly considered some precedents.

In Kamya Abdullah and 4 Others v Uganda; Supreme Court Criminal Appeal No. 24 of 2015 [2018] UGSC 12 (26 April 2018) the deceased was beaten by a $15$ mob for allegedly being a thief. A witness heard one of the appellants say: "we are tired of thieves". The beating of the deceased by the appellants resulted into his death and on trial by the High Court, they were convicted and sentence to 40 years each. The Court of Appeal upheld the conviction on appeal and reduced the sentence to 30 years' imprisonment. On further $20$ appeal to the Supreme Court, the, the court reduced the sentence to 18 years' imprisonment when their Lordships *inter alia* stated that:

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"Without downplaying the seriousness of offences committed by a mob by way of enforcing their misquided form of justice, a wrong practice in our communities which admittedly must be discouraged, we cannot ignore the fact that, in terms of sheer criminality, such people cannot and should not be put on the same plane in sentencing as those who plan their crimes and execute them in cold blood.

The crowd which assembled at the scene of crime, according to the evidence, consisted of about 50 people. Most of these people participated in beating the deceased to death. Police managed to arrest only a few who included the appellants as identified by the prosecution witness. ...."

The Supreme Court found and sentence to 18 years' imprisonment to be the appropriate sentence. In Kasaija Daudi v Uganda; Court of Appeal Criminal Appeal No 128 of 2008, [2014] UGCA 47 the appellant had been tried and convicted of two counts of murder by the High Court and sentenced to life

imprisonment. His appeal to this court against sentence was allowed after $\overline{5}$ taking into account the fact that the appellant was a first offender and had spent 2 ½ years on remand prior to his trial and conviction. He was 29 years old and relatively young at the time of commission of the offence. He had committed a very serious, senseless and brutal murder of two suspects who were under arrest and undermined the due process of law. The Court $10$ found a sentence of 18 years' imprisonment on each count to be served concurrently from the date of conviction appropriate in the circumstances.

We find that the sentence of 40 years' imprisonment was harsh and excessive and allow the appeal against sentence. We accordingly considered the circumstances of each of the appellants as well as the precedents and have come up with an appropriate sentence.

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We have considered the age of the appellants, the fact that they are first offenders. We have further considered the aggravating the circumstances of the unlawful detention of the deceased, the demand for her to pay a debt as well as her brutal battery leading to her death. Such conduct carried out with the complicity of the police is to be abhorred. The police do not work for private people but for the society. In the circumstances after taking into account the period the appellants were in pre-trial detention before their conviction as follows:

- 1. The first appellant spent 11 months and 21 days on pre-trial remand. - 2. The second appellant spent 2 years and two months on pre-trial remand. - 3. The third appellant spent 2 years and one month in pre-trial remand. - 4. The 8<sup>th</sup> appellant spent 2 years and 7 months in pre-trial remand. - We find that in the circumstances a sentence of 19 years' imprisonment 30 would be appropriate for each of the appellants. Taking into account the various periods the appellants spent on remand prior to their conviction we sentence each of the appellants as follows:

- 1. We sentence the first appellant to 18 years, one month and nine days' imprisonment which sentence commences from the date of his conviction by the High Court on 24<sup>th</sup> of June 2019. - 2. We sentence the second appellant to 16 years and 10 months' imprisonment which sentence commences from the date of his conviction by the High Court on 24<sup>th</sup> of June 2019. - 3. We sentence the 3<sup>rd</sup> appellant to 16 years and 11 months' imprisonment which sentence commences from the date of his conviction by the High Court on 24<sup>th</sup> of June 2019. - 4. We sentence the 8<sup>th</sup> Appellant to 16 years and five months' imprisonment which sentence commences from the date of his conviction by the High Court on 24<sup>th</sup> of June 2019.

## **Compensation**

As far as the question of compensation is concerned, it does not relate to the loss of the phone and the learned trial judge erred to proceed under section 286 (4) of the Penal Code Act. This section deals with loss $20$ occasioned by the robbery of property. It was however an erroneous citation of law since the learned trial judge clearly made the award for loss of life and the loss was to the family of the deceased. The learned trial judge ordered the convicts to pay Uganda shillings 100,000,000/= as compensation to the family of the deceased. In making the award, the learned trial Judge $\overline{25}$ cited section 286 (4) of the Penal Code Act which provides that:

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(4) Notwithstanding section 126 of the Trial on Indictments Act, where a person is convicted of the felony of robbery the court shall, unless the offender is sentenced to death, order the person convicted to pay such sum by way of compensation to any person to the prejudice of whom the robbery was committed, as in the opinion of the court is just having regard to the injury or loss suffered by such person, and any such order shall be deemed to be a decree and may be executed in the manner provided by the Civil Procedure Act.

Obviously having acquitted all the appellants of the offence of aggravated robbery section 286 (4) of the PC is irrelevant. The issue is whether the $35$ order to compensate the family of the deceased should be set aside.

We have considered section 126 of the **Trial on Indictment Act (TIA)** which $\overline{5}$ provides that:

126. Compensation.

(1) When any accused person is convicted by the High Court of any offence and it appears from the evidence that some other person, whether or not he or she is the prosecutor or a witness in the case, has suffered material loss or personal injury in consequence of the offence committed, the court may, in its discretion and in addition to any other lawful punishment, order the convicted person to pay to that other person such compensation as the court deems fair and reasonable.

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(4) An appeal shall lie to the Court of Appeal against any order awarding compensation under this section.

The relevant question is whether other persons suffered material loss pursuant to the offence of murder? If so was the amount awarded fair and reasonable in the circumstances?

It is within the court's discretion to make a reasonable award against the $20$ convicts for causing loss or injury as a result of the commission of the offence. Article 126 (2) of the Constitution of the Republic of Uganda and section 126 (1) of the Trial on Indictment Act allows the High Court to make an award of compensation for any offence where it appears from the evidence that some other person whether or not he or she is the prosecutor $25$ or witness in the case, suffered material loss or personal injury as a result of the offence committed. The compensatory award is at the discretion of the trial judge after assessment of the loss suffered by the injured party.

Further, article 126 (2) of the Constitution permits the court to award compensation to victims of wrong. The deceased had a husband and family 30 and in the absence of a misdirection on matters of principle the award was for the loss of life and any dependency to her dependants. We do not find any misdirection on the part of the learned trial judge other than an erroneous citation of law. The appellants objected to the award solely on the ground of the value of the phone being about Uganda shillings 300,000/. 35

In the premises, the learned trial judge made her award not for loss of a $\overline{5}$ phone but for loss of life. We find no merit in grounds 7 of the appeal of the $2^{nd}$ , $3^{rd}$ , and $8^{th}$ appellants and we disallow it. Similarly ground 9 of the appeal of the $1^{st}$ appellant fails.

Dated at Kampala the adday of $= 2021$

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**Fredrick Egonda – Ntende**

**Justice of Appeal**

Breakneer

**Catherine Bamugemereire**

**Justice of Appeal** $15$

$\overline{\phantom{a}}$ $2$ **Christopher Madrama**

**Justice of Appeal**