Uganda v Akankwasa Edgar and Others (Criminal Case 115 of 2022) [2025] UGHC 336 (20 January 2025)

#### 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDENT AT KABALE**

**HCT-11-CRIMINAL CASE-00-CR-CSC-0115 OF 2022 (Arising from Criminal case KAB No. AA-0082 of 2021) (Arising from Police CRB No. 496 of 2021)**

## **UGANDA**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTION VERSUS**

# **A1: AKANKWASA EDGAR A2: ATUHWERE DAMSON**

15 **A3: KYOMUHENDO ALLEN**::::::::::::::::::::::::::::::::::::::::::**ACCUSED PERSONS**

#### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **JUDGMENT**

Akankwasa Edgar (A1), Atuhwere Damson and Kyomuhendo Allen (A3) were 20 jointly charged with the offence of Murder contrary to **Section 188** and **189** of the **Penal Code Act**. The particulars giving rise to the indictment are that Akankwasa Edgar, Atuhwere Damson (A2) and Kyomuhendo Allen during the night of 19/09/2021 at Rwampazi Village, Ibumba Parish, Rwamucucu Sub County, Rukiga District with malice afore thought unlawfully killed Kiconco 25 Aggrey.

Akanwasa Edgar (A1) and Atuhwere Damson (A2) pleaded not guilty. Kyomuhendo Allen (A3) plea bargained was convicted and accordingly sentenced. **Representation.**

Ms. Nkwanzi Rachael (State Attorney) appeared for the Prosecution while Ms. 30 Namara Alice represented the Accused persons on state brief. The Assessors for this trial were Ms Kembabazi Christine and Ms. Muhawenimana Sylvia.

5 During the preliminary hearing pursuant to **Section 66** of the **Trial** on **Indictment Act** medical evidence in Police Form 48B and Police Form 24 were admitted as uncontested evidence.

Police Form 48B was in regard to the post-mortem conducted on the deceased Kiconco Aggrey and the same was received as Exhibit P1. Both were found to be 10 of normal mental status.

Two Police Forms 24 were received in respect to the medical examination of each of the two Accused persons with that in respect of A1 received as Exhibit P2 and for A2 received as Exhibit P3.

**Burden and Standard of Proof.**

15 This being a criminal case it is one whose proof lies squarely on the Prosecution and the Accused persons have no duty to prove their innocence.

It is also proof beyond reasonable doubt. Any doubts must be resolved in favour of the Accused unless satisfactorily explained and the Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the 20 defence case.

**See Ssekitoleko versus Uganda (1961) EA 531.**

**Ingredients of the offence.**

As Per **Sections 188** and **189** of the **Penal Code Act** to constitute the offence of Murder the Prosecution must prove the following ingredients beyond reasonable 25 doubt.

## 5 **1) Death of a human being.**

- **2) That the death was caused unlawfully.** - **3) That the death was actuated by malice afore thought.** - 4) **That the Accused persons participated in causing the death**.

### 10 **1) Death of a human being.**

Death maybe proved by production of a post mortem report or evidence of witnesses who state that they knew the Deceased and that they saw the Deceased's body or attended the burial.

It is the evidence of Turyahabwe Edmand (PW4) that on the 23/09/2021 at 15 around 6:50AM A2went to his home and informed him that his father had been killed and that together with him they moved to Rwampazi Cell within the trading centre where they found the body of Kiconco Aggrey and that he had been struck on the head and was bleeding from the nose and mouth. It is the testimony of PW4 that the Deceased was buried the following day at Rwampazi Cell.

20 The body of the Deceased Kiconco Aggrey was also viewed by D/AIP Ndajimana William (PW2) and D/ASP Ojirot Moses (PW4). Corroborative medical evidence was also presented in the post mortem report in Exhibit P1 conducted on 20/09/2021 that indicates that the Deceased Kiconco Aggrey died as a result of excessive bleeding. A2 in his sworn defence testified to viewing the body of his 25 father Kiconco Aggrey in a pool of blood on the date in issue.

It is therefore my finding that the prosecution has proved the death of Kiconco Aggrey beyond reasonable doubt.

**2) That the death was caused by some unlawful act.**

The law presumes that any homicide (killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental, excusable or

10 authorized by law.

**See: R versus Gazambizi s/o Wesonga (1948) EACA 65**.

It is the evidence of D/AIP Ndaijimana William (PW2), D/ASP Ojirot Moses (PW4), Turyahabwe Edmand (PW4) and A2 that on the 20/09/2022, they viewed the body of the Deceased Kiconco Aggrey in a pool of blood with injuries to the head.

15 The post mortem report in Exhibit P1 corroborates the same that the Deceased had a cut wound on the scalp and the cause of death was due to excessive bleeding from the trauma.

I am sufficiently satisfied that the death of Kiconco Aggrey was neither accidental, excusable or authorized by law.

20 It is my finding that the Prosecution has proved beyond reasonable doubt that the death of Kiconco Aggrey was caused by some unlawful act.

**3) That the unlawful act was actuated by malice afore thought.**

**Section 191** of the **Penal Code Act** provides that malice aforethought may be 25 proved by direct evidence or may be inferred from the evidence indicating knowledge that the conduct of an Accused would probably cause death.

5 The central issue here is whether whoever assaulted the Deceased intended to cause death or knew that the manner and degree of assault would probably cause death.

It is trite law that Murder in Criminal trials can be ascertained from the weapon used (whether it is a lethal weapon or not) the manner in which it is used 10 (whether it is used repeatedly or the number of injuries inflicted) the part of the body that is targeted or injured (whether or not it is a vulnerable part) and the conduct of the Accused before during and after the incident (whether there was impunity).

**See R versus Tubere s/o Ochen (1945) 12 EACA 63.**

15 It is the evidence of Turyahabwe Edmand (PW4) that in the morning of the 23/09/2021 he viewed the body of Kiconco Aggrey and that he had been struck on the head and was bleeding from the nose and mouth. This evidence is corroborated by that of D/AIP Ndajimana William (PW2) and D/ASP Ojirot Moses (PW4). A2 in his sworn defence also testified to seeing the body of his father 20 Kiconco Aggrey in a pool of blood.

The Post mortem report in Exhibit P1 details that the Deceased had a cut wound on his scalp and that he died as a result of excessive bleeding. This Court had the opportunity to view photographs of the body of the Deceased taken by D/ASP Ojirot Moses (PW4) and received as Exhibit P7.

25 The head is a vulnerable and very sensitive part of the body. A cut wound to the scalp leaves no doubt in my mind that the intention of the assailant in targeting 5 the head of the Deceased Kiconco Aggrey was only one and that was to take his life and this is what happened.

It is my finding that the Prosecution has successfully proved beyond reasonable doubt that the unlawful act leading to the death of Kiconco Aggrey was actuated by malice aforethought.

10 **4) Participation of the Accused persons.**

It is the evidence of Katwesigye Kenneth (PW5) that on the 19/09/2021 at around 7:00PM he was in his bar with Bahara Emily, Kiconco Aggrey and his mother Mary when they were joined by A1 and that A1 offered to buy them some alcohol.

According to Katwesigye Kenneth (PW5) Kiconco Aggrey got drank and A1 offered

- 15 to take him back home and that this was at around 9:00PM and that they left with Kiconco Aggrey leaning on A1 and A1 returned after sometime. Katwesigye Kenneth (PW5) testifies that it was the following day that he learnt of the death of Kiconco Aggrey. - The Prosecution also presented DC Ndamange Alex (PW1) who testified that he 20 was the Officer who reconstructed the scene on the 23/09/2021 with Akankwasa Edgar (A1) in the presence of other Police Officers. It is his evidence that A1 led them to the bar of one Katwesigye Kenneth (PW5) where he removed the Deceased on the 19/09/2021 at around 7:30PM and took him to his home near the trading centre and left him lying outside his home drank. That A1 then 25 informed A2 who had given him the deal to kill his father together with his mother Allen (A3). It is the testimony of PW1 that A1 told him that at midnight he and A2 picked the Deceased from the compound and lifted him to the sitting room

5 and that A1 showed them where they murdered Kiconco Aggrey using a hammer and that together they lifted the Deceased and took him to the verandah of one Nalice and left him lying there.

According to PW1, A1 then led them to Bukinda to the home of a witch doctor where they (A1 and A2) went to get herbs so that the spirit of the Deceased does 10 not follow them. A sketch plan and Photographs were tendered to Court as exhibit P4 and P5 respectively. This evidence is corroborated by that of Turyahabwe Edmand (PW4) the LC 1 chairperson Rwampazi who testified that A1 and others had been arrested as suspects over the murder of Kiconco Aggrey and that two days later the OC/CID Bahimba William told him that Akankwasa (A1) had said 15 that he cannot be imprisoned alone having committed the murder with other people and that they should also be brought. PW4 testifies that the next day A1 was brought by the Police and that he moved with them and A1 led them to the bar belonging to Kenneth from where he got Kiconco Aggrey and that A1 led them after to the home of the Deceased where he told them they had murdered the 20 Deceased by striking him with a hammer to the head in the dining room after which they placed him in a yellow tapline and collected his blood so that it does not get to the floor. That they had to strike him again because he was still alive. That he did all this with A2 and they dropped the body at Ahitolero trading centre where the body was recovered. According to PW4 A1 then led them to Bukinda to 25 a witch doctor from whom they went for medicine so that they are not arrested. That there after A1 took them to the home of A2 where they recovered a yellow

tapline that was blood stained new paragraph A1 in his sworn defence denied the

charge testifying that he spent the entire day of the 19/09/2021 at home

- 5 constructing his house from 9:00AM until 7:30PM when he finished and prepared his supper before retiring for the night at 10:00PM. It is the evidence of A1 that the following day at around 8:00Am he went into the trading centre where he found that many people had gathered and was informed that Kiconco Aggrey had died. That while he was still there the Police came and ordered them to carry the - 10 body but he refused and was arrested and taken to Rukiga Police Station and charged over a crime he knew nothing about.

According A1 all the Prosecution witnesses including Katwesigye Kenneth told lies against him and that he did not drink in his bar on the 19/09/2021.

A2 also in his sworn defence denied the charge stating he knows nothing about it

15 and that on the 19/09/2021 at around 9:00AM his father Kiconco Aggrey greeted him at his workplace at Itolero trading centre and he did not see him again until the next day when he heard that he had been killed.

It is his evidence that he knows nothing about the murder and the Prosecution witnesses told lies against him.

20 The evidence presented by the Prosecution in this case is largely circumstantial evidence with no direct eye witnesses to the murder of Kiconco Aggrey.

The Supreme Court in **Byaruhanga Fodori versus Uganda Criminal Appeal No. 0018** of **2002** held that: -

*"It is trite law that where the Prosecution case depends on solely on circumstantial* 25 *evidence that Court must before deciding upon a conviction find that the exculpatory facts are incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The Court*

5 *must be sure that there are no other co-existing circumstances which weaken or destroy the inference of guilt"*

Furthermore, the Supreme Court in **Tindigwihura Mbahe versus Uganda Criminal Appeal No. 0009** of **198**7 held that: -

"*Briefly the law is that circumstantial evidence must be treated with caution and* 10 *narrowly examined because evidence of this kind can be easily fabricated. It is therefore necessary before drawing an inference of the Accused's guilt from circumstantial evidence which would weaken or destroy the evidence*"

The evidence of Katwesigye Kenneth (PW5) was given in a candid and collected manner. I did not detect any deceit in his body language. I find no justifiable 15 reasons why he could have told lies against A1.

Indeed, A1 did not allege that the two of them have any grudges. I therefore believe that the evidence of PW5 was not propelled by any malice or ill. I therefore accept the evidence of PW5 that on the night in issue A1 after drinking with Kiconco Aggrey and others in his bar when Kiconco got drank the Accused offered

20 to take him home and the two left the bar with the Deceased leaning on A1 for support. This is the last sighting it would appear of Kiconco Aggrey being taken away by A1.

The evidence of DC Ndamange Alex (PW1) is well corroborated by that of Turyahabwe Edmand (PW4) that A1 led the Police team in the presence of the LC1

25 chairperson (PW4) in the reconstruction of the scene starting from Katwesigye Kenneth's (PW5) bar to the home of the Deceased where they used a hammer to strike him on the head to the verandah of one Nalice where the body was laid

5 then to the home of the witchdoctor who gave them herbs to ward off their arrests.

10 photographs were taken of these locations and received collectively as Exhibit P5. I have viewed each of them and they re-affirm the presence of A1 at each of these locations. I do not accept the defence of A1 that it is the Police that led him 10 to these locations and that he had not been in these places. The Police obviously

would never have known that the two Accused sought the services of a witchdoctor after their evil deed. This kind of information can only come from the assailants.

The evidence presented of the reconstruction of the scene was cogent and 15 consistent. The reference to a yellow tapline being used to carry the body of the Deceased to stop blood from spilling to the ground is well corroborated by the yellow tapline recovered in the house of A2 as testified to by D/AIP Mbahimba William (PW2) that he states appeared to be blood stained, a search certificate to this effect was received as Exhibit P6.

20 As already highlighted A1 was the person last seen leading away the drank Kiconco Aggrey in the night of the 19/09/2021.

The Court of Appeal in **Busingye Paul** and **another versus Uganda Criminal Appeal No. 0048** of **2019 and No. 0056** of **2019** cited with approval the Nigerian case of **Moses Jua versus State (2007) LPELR-CA/IL/42/2006** in which the 25 Court while considering the last seen doctrine held thus: -

"*Even though the onus of proof in criminal cases always rests squarely on the Prosecution at all times, the last seen theory in the Prosecution of Murder or*

5 *culpable homicide cases is that where the Deceased was last seen with the Accused there is a duty placed on the Accused to give an explanation relating to how the Deceased met his or her death. In the absence of any explanation the Court is justified in drawing the inference that the Accused killed the Deceased"*

The Court of Appeal further cited another Nigerian case of **Stephen Haruna** 10 **versus The Attorney General** of the **Federation (2010) 1 LAW/CA/A/186/C/2009** in which the Court opined thus: -

"*The doctrine of last seen means that the law presumes that the person last seen with a Deceased bears full responsibility for his death. Thus where an Accused person was the last person to be seen in the company of the Deceased and*

- 15 *circumstantial evidence is over whelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the Appellant to give an explanation relating to how the Deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial Court and an Appellate Court will be justified in drawing the inference that the Accused person killed the Deceased"* - 20 A1 in his defence totally denied being in Katwesigye's bar on the night in issue despite the overwhelming evidence that he was in the bar on the night in issue and left with the Deceased.

According to Katwesigye (PW5) the Accused after taking the Deceased at 9:00PM returned later to the bar. I believe this was intended to hoodwink the people there

25 that he had taken the Deceased home because according to DC Ndamange Alex (PW1) A1 told them that he first left the Deceased in the compound and later returned with A2 to complete the assignment of killing A2's father. The defence 5 of alibi that A1 raised has therefore been completely discredited by the Prosecution evidence.

I have not found co-existing circumstances that would weaken or destroy the inference of A1's guilt.

In applying the doctrine of last seen I find A1 be to responsible for the death of 10 Kiconco Aggrey.

The evidence on record linking A2 to the murder of his father Kiconco Aggrey is the testimony of PW1 and PW4 as to what A1 told them during the reconstruction of the scene of crime that the deal to kill Kiconco Aggrey was given to him by A2 and A3 who was the mother to A2 and wife to the Deceased. This Court was

15 informed that A1 told the Officers reconstructing the scene that they used a yellow tapline to carry away the body of Kiconco Aggrey to prevent blood from spilling to the ground.

A yellow tapline that appeared to be blood stained was recovered from the house of A2 by Mbahimba Willaim (PW2) and a search certificate was received as Exhibit

20 P6. The Prosecution did not offer any explanation as why the tapline was never tendered to Court in evidence. There is also no evidence that the suspected blood stains were indeed human blood.

The above fact notwithstanding I have viewed the photographs of the Deceased in Exhibit P5 and it is difficult for me to imagine that A1 on his own would lift the 25 body of such a big man from his house to the trading centre where it was found the following morning and this movement it must be noted was carried out in the

night. He must have required help and this could only be from A2.

5 A2 and A3 his mother it must be noted had motives to murder his father. I am alive to the fact that motive by which a person is induced perform to do or omit to perform an act or to form an intention to commit murder is immaterial so far as regards criminal responsibility.

However, the Supreme Court in **Duke Mabaya Gwaka versus Uganda criminal**

10 **Appeal No. 0059** of **2015** while citing its decision in **John Kyambadde & another versus Uganda SCCA No. 0030** of **2014** opined that it is always useful to establish motive since a person in his normal faculties would not commit a crime without a reason or motive.

The Court further expressed that the existence of a motive may make it more 15 likely that an Accused person did in fact commit the offence and that it is one of the factors that may be taken into account.

In the present case Turyahabwe Edmand (PW4) testified to having handled wrangles between A2, A3 and the Deceased Kiconco Aggrey.

It is his evidence that A2's elder brother one Niwagaba had recently passed on 20 and that A2 and A3 had Accused Kiconco Aggrey of being behind the death by use of evil spirits. Furthermore, that A2 and A3 had used Kiconco Aggrey 's cow to pay for A2's dowry without the consent of Kiconco Aggrey and that in turn Kiconco Aggrey had also cut down banana plants that belonged to A2 and A3. According to PW4 the home had no peace.

25 It is against the above background that I find that there is a nexus between A1 and A2 based on the motive to kill A2's father. There is simply no other explanation 5 how and why A1 should have committed this senseless killing. I therefore reject the defence of alibi raised by A2.

After considering the evidence adduced by the prosecution and defence together and in full agreement with the assessors it is my finding that the Prosecution has proved its case beyond reasonable double and I find A1 and A2 guilty of the offence

10 of murder contrary to **Section 188** and **189** of the **Penal Code Act** and convict them of the same.

Before me,

………………………………… **Samuel Emokor** 15 **Judge 20/01/2025.**