Uganda v Balwa (HCT-17-CR-SC- 0168-2022) [2024] UGHC 1246 (22 August 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT NAKASEKE**

**HCT-17-CR-SC- 0168-2022**

**(Arising from Nakaseke Criminal Case No. AA 143 of 2021)**

**NKSK CRB: 143/21**

**UGANDA …………………………PROSECUTOR**

**V**

**BALWA IVAN ………………. ACCUSED**

**BEFORE LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person Balwa Ivan is indicted with murder c/s 188 and 189 of the Penal Code Act Cap. 120. It is alleged that on 25.6.2021 at Kirinda village-Wakyato sub-county in Nakaseke district murdered Wamanga Ronald. 2. On 28.5.2024, the accused appeared before me for plea taking and when the indictment was read to him, he pleaded not guilty. Thereafter, Tumukunde Evas and Serunjogi Mohammed were appointed assessors without objection from the accused person. 3. Upon taking the assessors taking the assessors’ oath, the trial of the accused person commenced on 6.6.2024. Prosecution was represented by Kukundakwe Arthurton senior Resident State Attorney while accused was represented by Damba Emmanuel on state brief.

Burden of proof

1. The state had a duty to prove the following ingredients beyond reasonable doubt: 1. Death occurred. 2. It was caused unlawfully. 3. It was intentionally caused with malice aforethought or without caring if the act or conduct will cause death. 4. Participation by the accused person.

Unlawful death of a human being occurred

1. Prosecution adduced a post mortem report dated 27.6.2021 prepared by the medical officer of Nakaseke Hospital. The report (PF 48B) was admitted in evidence by agreement of both the state attorney and defence counsel and marked PExh1. The body was identified to the medical officer by a one Belegeya David as that of Ronald. The post mortem report established external injuries on the body as and hematoma in the face and around the entire neck. The cause of death was identified as STI, brain damage 20, and strangulation.

Whether the death was intentionally caused with malice aforethought and whether the accused participated in causing the death.

1. The state relied upon three witnesses to prove these two ingredients. On PW1 Namukwaya Edise, aged 43 years, a cultivator, resident of Kirinda, Wakyalo, Nakaseke district knows the accused Balwa as her neighbour. She also knew Wamanga Ronald, the deceased. On a day she could not recall in 2021, the accused person lost phones that belonged to other people who needed them so the accused Balwa compensated the owners in the presence of the LC1 Chairman. 2. According to Namukwaya, a week later, Balwa suspected the deceased Wamanga for stealing them and on 25.6.2021, at approximately 3 p.m, she was at home when Balwa’s wife called her while shouting that the thief had been found. The wife of the accused ran towards Namukwaya’s home about 100 feet away as the latter also ran towards the direction of the alarm. Namukwaya found when Balwa was holding Wamanga whom he placed down and boxed him and boxed him until one eye fell out. By this time, the hands of the deceased were tied. 3. According to Namukwaya, Balwa then pulled out the spear blade and pushed the deceased. He then nailed the deceased’s feet using a hammer which had been given to him by his (Balwa’s) wife and the deceased was made to sit down while this was happening. According to Namukwaya, the deceased was pleading for mercy but Balwa would not listen and he assaulted the shoulders of the deceased with a hammer. This assault took place from 3 to 4pm. 4. A spear blade, nails and hammer , when weaponized, can lead to death. The hammer was applied to the shoulders while nails where drilled in the feet while the hands of the deceased where tied preventing him from defending himself. Evidently, the assailant must have known that death would be a probable consequence of his actions as indeed was his wish. 5. Namukwaya then asked Balwa for his phone and she called Sebunya the LC1 Vice chairman who arrived and directed Balwa to untie the deceased who then staggered slowly into his house. She observed that his face was swollen and the eye was bleeding. Worthy of note is that Sebunya arrived with a mob, according to Namukwaya. 6. It is evident that all three people at the scene that day before Sebunya arrived, were neighbours, i.e, Balwa, Wamanga, the deceased and Namukwaya the eye witness. 7. At 8 p.m, Namukwaya went to check on the victim of the assault and found him dead so she went to the home of the accused to inform him. It was her evidence that the farm owners arrested Balwa and took him to the LC1 chairman. 8. According to PW2 Mutyaba Nabiaza , 47 years old, resident of Kirinda village, Nakaseke district, on 24.6.21, Balwa complained to him that someone had stolen his phones and a suspect was beaten that day but he later died of natural causes. 9. On 25.6.2021, Mutyaba received a report that Wamanga who had attended the village meeting had been killed. Mutyaba received the report from the LC1 Secretary at about 7 p.m and the police picked the body the next day at approximately 9 a.m. 10. It was further Mutyaba’s evidence that the youth arrested Balwa in the night of 25.6.2021 and took him to the police. In cross-examination, his testimony was that Balwa owned a bar and charged phones at a fee. 11. Evidently, Mutyaba is not a useful witness because he confessed to having attended a village meeting on 24.6.2021 that possibly ordered the beating of another individual for stealing the same phones and the said individual died although Mutyaba claims he died of natural causes. 12. The last witness for the prosecution was Kato Fred PW3, aged 26, cattle keeper, resident of Gayaza, Kiyinga, Wakyato, Nakaseke district. Kato knows both the accused and deceased and the accused had just been hired as a farm worker. He was at home at about 7 to 8 p.m, when he received a report that the accused had badly assaulted the deceased Ronald. He proceeded to the scene and about 100 feet from Balwa’s house, he saw stones and a lot of blood. He entered Ronald’s house and he was dead. At this point, Kato and his brother Bulegiye ran to the house of the accused who tried to escape but the two caught him and took him to the LC1 Chairman. It was Kato’s evidence that they found bloodstained knives and hammer by the door of the accused but these were not exhibited in court. 13. Kato corroborates Namukwaya’s testimony that she went to check on the deceased at about 8 p.m and found him dead. Likewise, Kato found him dead in his room. Kato also saw the scene of crime which had a lot of blood. In cross examination, the defense suggested that it was dark so he could not have seen but his evidence was he had with him a torch so there was light. 14. The fact the deceased died hours after Namukwaya had seen the accused Balwa assault the deceased with a hammer and spear and drill nails in his feet while his hands were tied and had seen him stagger in his room bleeding from the eye; that she had heard him plead for mercy from the accused as the latter assaulted him in broad daylight in the compound both accused and deceased shared; constitutes credible evidence that the accused participated in the murder of the deceased. 15. The post mortem report PExh.2 suggests that the deceased died of haemato( clotted blood) and strangulation since his neck was freely moving. Nalukwaya did not mention strangulation. What is material is that it is the accused who had a motive to kill the deceased whom he suspected of stealing his phones. The accused assaulted the deceased so badly that Kato PW3 saw a lot of blood at the scene and Namukwaya witnessed the brutal attack on the deceased during which the accused was using a hammer, spear and nails. 16. The fact that one Sebunya , LC Vice Chariman arrived with a mob when Namukwaya alerted him is worthy of note except that they arrived after the accused already assaulted the deceased, 17. Consequently, I find that the prosecution adduced credible evidence that it is the accused who is directly responsible for the death of the deceased, a death that was caused with malice aforethought because he wished the accused to die given the use of a hammer and spear in the assault. 18. In defense, Balwa made a sworn statement in which he raised the defence of alibi. He testified that on 25.6.2021, he woke up early and went to the chairperson LC1 and paid a debt of 450,000/= which he had. He then left the chairperson’s home at 10:00am and went to the garden which belonged to Kato in Kalungu to work, after which he returned at 8:00pm. He testified that he was with his wife in the garden and the maid remained home. 19. According to Balwa, when he got home, Namukwaya approached him and reported that the neighbor (deceased) had fought with a man who was her husband whose name he (Balwa) did not know, and the man had hurt the deceased. According to Balwa, Namukwaya told him that the deceased was at his home and she showed him a place full of blood, he stopped at that place and returned to his home. 20. According to Balwa, later as he was having tea, Kato, his brother and Namukwaya came to his home at 9:00pm and Kato asked him why he killed a person but he denied any knowledge of the killing and they arrested him, Kato tied him with a rope and they took him to the chairperson LC1. According to him, they started beating him so he could confess and later brought him to police. 21. Balwa claimed to have a conflict with Namukwaya but no conflict with her husband and in cross examination, he told court that only he and Namukwaya and knew of their conflict, he however did not delve into the details of this conflict given that Namukwaya is a principle witness in this case. 22. Evidently, the defense was suggesting that Namukwaya was not a credible witness because she had a grudge with the accused person and that it is her friend who killed the deceased. 23. The defense suggested that Kato PW3 recovered a hammer and bloodstained knives at the scene but the same were not exhibited. The police officers involved in the investigations did not testify and yet they were best placed to account for these weapons. Nevertheless, the absence of the weapons found at the scene does not in any way weaken the prosecution case which positively identified the accused as the perpetrator of the murder. 24. I am satisfied that the prosecution destroyed the defence of alibi of the accused by putting him at the scene of the crime at the time of commission of the offence through the testimony of Namukwaya who was present as the assault of the deceased took place in broad daylight. 25. I agree with the two assessors that the state has proved its case beyond reasonable doubt that the accused murdered Wamanga Ronald on 25.6.2021 at Kirinda village-Wakyato sub-county in Nakaseke district. The accused person is accordingly convicted of the offence of murder as indicted.

**DATED AT NAKASEKE THIS 22ND DAY OF AUGUST 2024**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Kukundakwe Arthurton, Resident State Attorney for the prosecution

Damba Emmanuel, for the accused on state brief.

22. 8. 2024

Accused present

Arthuton Kukundakwe for the state

Damba Emmanuel for the accused on state brief

Court clerk: Sanyu Florence

Court: Judgment delivered

State:

* The accused is a first offender. * He committed a grave offence. * The offence is rampant. * Life was lost under brutal circumstances * Pray for a deterrent sentence

Damba:

* Accused is a first time offender * He is a youth, married with children.

Accused: I pray for leniency.

**Sentence**

The killing in this case was disturbingly intentional. That the accused suspected the deceased for stealing phones under his care did not justify the torture he meted out to the deceased.

The message needs to go to the community in Wakyato sub-county that such conduct will attract punitive sentences.

That the accused is a first time offender and a young man are mitigating factors.

Because the killing was intentional, appropriate sentence is 33 years one month less remand period of three years and one month.

Accused person is sentenced to 30 years imprisonment.

Wolayo J