Uganda v Kakinda (HCT-00-CR-SC 58 of 2020) [2022] UGHCCRD 153 (15 November 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0058-2020**

**UGANDA ……………… PROSECUTOR**

# **VERSUS**

**KAKINDA IVAN ........…..…… ACCUSED**

#### **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

### **JUDGMENT**

The accused, **KAKINDA IVAN,** is indicted with the offence of Murder contrary to sections 188 and 189 of **the Penal Code Act**. It is alleged in the particulars of offence that on the 23rd day of June 2018 at Kansanga in Kampala district, the accused, intentionally caused the death of **NALULE PATRINA.**

At his arraignment, Kakinda Ivan denied the charges thus bringing all the elements of this offence into issue. The prosecution called 7 witnesses to prove its case, while the accused was the sole defence witness.

The brief case for the prosecution is that three months before the 23rd day of June 2018 the accused went to visit his second wife PW 1 Nagawa Joan. She had a child, Nalule Patrina, with the accused, who at that time was one year and two months old. Kakinda had cut off all communication with PW 1 when she told him that she had conceived. PW 1 also had 2 other children living with her but fathered by a different man.

On the 23rd of June 2018, PW 1 left the accused at home with the baby. The other children also went off to school. Later PW 2, Patricia Nalukenge, returned home, and found the accused at home with the baby.

Patrina and the accused were in the house. At one point the baby was crying when the accused opened the door gave PW 2 a basin full of bloody water to pour away. Then he emerged from the house holding up the baby by her feet and let go. She fell on her head. Kakinda told the PW 2 to take her to a nearby clinic where the baby was cleaned up. When she returned, PW 2 left the baby in the house with the accused. Later he dismantled the bed and sold it to PW 6. He wrapped up the baby in a blanket and left. When he left after selling the bed, the accused went for good and has never returned to the home.

Later that night, PW 1 returned home from work to find the baby dead and the accused missing. The matter was reported to the police and a post mortem examination done. It was found the victim suffered a blunt force trauma and death was caused by a ruptured liver.

It was not until the 6th of April 2019 that he accused was arrested from Kyetume Police Post. He was then transferred to Kabalagala Police station where he was charged with this offence.

The accused denied committing this offence. He stated that he ordinarily worked in a bakery located in Mbarara. That he had two wives with PW 1 being his second wife. It is his evidence that on the 22nd of March 2018 he went to his second wife's home. That he paid for her rent. He states that on the 23rd of June 2018, he left for Mbarara at about 1.15 pm. That before departure, he bathed the deceased and left her on the veranda playing with her siblings and other children including those of the landlord. He also bought his wife a phone worth 100,000/- and left her with 5,000/- to buy a SIM card. After that however, he lost touch with his wife whom he learnt moved from her residence to an unknown place. It was much later, in April 2019 that he learnt of his daughter's death. He was arrested as he tried to obtain more details about the matter from his LC I Chairman.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (**Okethi Okale vs R 1965 E. A 555**). The standard of proof is beyond reasonable doubt (see **Kamesere Moses vs Uganda S. C. C. A 8/1997** (unreported).

Ms Amy Grace was Counsel for the Prosecution while Mr Muhwezi Anthony represented the accused person on state brief.

With regard to charges of Murder contrary to sections 188 and 189 of **the Penal Code Act** the essential elements are:

- i. There was a death - ii. The death was caused unlawfully - iii. With Malice aforethought - iv. The accused participated.

#### **i. There was a death**

The accused admits that Patrina Nalule is dead and was buried on his land in his village.

PW 1 the mother of Nalule said that her daughter died on the 23rd of June 2018 and was buried on the 26th of June 2018. PW 3, Nansubuga Ruth saw the dead body lying on a mattress which was on the floor. There is also a post mortem examination report of Nalule that was tendered as PE 1.

This evidence proves beyond doubt that Nalule Patrina is indeed dead.

## **ii. The death was caused unlawfully**

The position of the law is that all homicides are presumed to be unlawful unless authorized by law or proved to have been accidental or excusable (see **Gusambizi s/o Wesonga [1948] 15 EACA 63)**. This finding is an inference to be drawn from the facts of a particular case.

I shall consider this element jointly with the next.

# **iii. With Malice aforethought**

The deceased in this case was a baby aged 1 year and 2 months old. Life at that stage is extremely delicate. It is stated by PW 2 that when she returned from school on the 23rd of June 2018, which was a Saturday the accused sent her to go and buy ice. She returned and found the door closed and the baby crying. That the accused opened and gave her basin of bloody water to pour away. She also stated that the accused carried the child by her feet, upside down and she fell head first, bled from the nose and rolled her eyes. That night PW 1 found the baby dead and wrapped in a blanket.

The post mortem examination report stated that the deceased showed no signs of disease. That she suffered a swollen brain. She also had a markedly lacerated liver and there was 200 Mls of blood in the abdomen. The cause of death was concluded

to be haemorrhagic shock following rupture of the liver in blunt force trauma injuries.

Malice aforethought is provided for in S. 191 of **the Penal Code Act** and is deemed to be proved by evidence showing a positive intention, by the accused, to cause death although such knowledge is accompanied by an indifference whether death is caused or not.

Malice aforethought is not easily proved by direct evidence, as intention resides in the mind. For that reason, the High Court and superior courts have held in a long line of decisions, that malice aforethought can be inferred from: the type of weapon used; the nature of the injuries inflicted; the part of the body affected; and the conduct of the perpetrator before and after the attack. (See **Amis Katalikawe & 2 Ors V Ug SCCA 17/94** Unreported).

The submission of counsel for the accused is that there was no evidence of a weapon used and thus there was no malice aforethought.

I have considered the nature of the injuries seen in the post-mortem against the evidence on record. It is stated that the victim was dropped on her head. In this case the brain was swollen. There is evidence that the bloody water poured out of the house followed the crying of the child when she was alone with the perpetrator in the house. It was found the child suffered haemorrhagic shock and a markedly lacerated liver. That is bleeding from the liver which was injured by a force applied. This must have been a force great enough to lacerate or tear the liver, an organ found in the abdomen. It is clear it was these injuries that resulted in death. As stated at this early age an infant is such a delicate creature. To drop a child from any height on its head and then apply a force to abdomen great enough to lacerate the liver would point to an intention to cause great injury.

The intention to cause death is proved whether the injury is accompanied by an indifference to whether or not death results from the injury.

In the result there is sufficient evidence to establish that there was both direct and circumstantial evidence to show that the injuries sustained resulted in death. These injuries were inflicted on the deceased and whoever inflicted them did so with malice aforethought.

It also therefore follows that this was a homicide. That is the killing of one human being another. There has been no lawful excuse shown for the injuries visited on the deceased nor could they be accidental. This homicide was unlawful.

For these reasons I find that the death of Nalule was caused unlawfully and with malice aforethought and therefore the second and third elements of the offence were proved.

#### **iv) Whether the accused person participated in the commission of the offence**

The accused has denied being responsible for the death of his daughter Nalule. He stated that when he left for Mbarara at 1.15 pm she was alive and well; playing with other children, including the landlady's children, on the veranda of his one roomed house in Kansanga. He was surprised to learn of her death after he received a call from his mother saying that a child had been buried in their home. He learnt it was Nalule who had been buried. It was his evidence that he was also anxious to know who had killed his child.

The prosecution on the other hand disputes the evidence of the accused. It should be remembered that the prosecution bears the burden to prove this element and relies mostly on the evidence of PW 2 Patricia Nalukenge, who was a child of 13 years of age on the day she testified. Following a *voire dire* I found this child to be very intelligent who clearly understood an oath entails. Her evidence was therefore received sworn. PW 2 stated that when she returned from school one Saturday she had lunch and then accused gave her and her sibling money to go and buy ice. He remained at home, in their house, with the deceased. At the time she returned, the door was closed but she could hear the baby crying within and a towel had been stuffed under the door. It was a one roomed house. That she knocked but the accused did not open the door. After a while, he opened and gave PW 2 a basin of bloody water to pour away.

He came to the door holding up the baby by her feet. She was upside down. The accused let go leaving the baby to fall head first on the floor. According to PW 2 the baby rolled her eyes and the accused told PW 2 to take the child to a nearby clinic where the attending person cleaned up the baby and handed it back to PW 2 to return home. PW 2 did not find the accused in the house but he returned shortly thereafter with a boda boda. He took the baby and wrapped her in a blanket and placed her down. Then he and boda man dismantled the bed and took it away. That he gave the children one thousand shillings (1000/-) to buy something to eat. After he left, PW 2 tried to wake the bay to drink tea but despite her efforts Nalule would not wake. The accused did not ever return home after this.

On this same day the landlady, PW 4 Nansubuga Ruth had seen the accused bath the deceased and carry her back into the house. That she also him carry away a dismantled bed with the help of a boda boda.

The prosecution mainly relies on PW 2, who was the sole witness respecting the events. The accused was well known to PW 2 since he was the father of her sister and had been living with them for a while. Under Section 133 of **the Evidence Act** no particular number of witnesses is required to prove any fact. It is therefore not a detraction to the evidence PW 2 that she is the sole witness to these facts. All that is left to this court is to consider the evidence closely to test for truthfulness.

In this case the court has taken into account the following set of circumstances,

Firstly, the accused was alone in the house with the baby when he gave PW2 bloody water to pour away. Earlier the baby was heard crying in house where the accused had stuffed a blanket under the door. This would point to the accused either trying to muffle the sound or prevent any one peeping under the door to seeing into the house.

Secondly, he dropped this infant child on her head.

Thirdly it was established that the child suffered a lacerated liver resulting from blunt force trauma. She also had a swollen brain and blood which collected in her abdomen.

There is also the fact that the accused is said to have left the scene. He did not attend burial and disappeared till he was arrested 10 months later in Kyetume Mukono. He states that he did not flee but went back to his workplace in Mbarara. It appears implausible that he would lose all contact with PW 1 in such circumstances and not even know that a child had been buried in his home. I find it implausible and find as a fact that he fled the scene following the incident. This conduct is hardly the behaviour of an innocent man. It is more what a fugitive from the law would do (**Uganda vs George Wilson Simbwa SCCA 37 of 1995**).

I have considered that the accused said he informed the landlady just before he left that he was going. This particular version of events was never put to the PW 3, - Nansubuga the land lady, to confirm or dispute. It therefore looks more like an afterthought and false.

The submission on behalf of the accused is that there were grave or substantial contradictions which point to the prosecution case resting on lies. That it was stated by the prosecution witnesses that the dead baby was found lying on a bed which was also said to have been sold off by the accused. This contradiction, in my view, was resolved by the evidence itself as the witnesses stated that the dead body of the baby was lying on a mattress which they described as a bed. That mattress was on the floor. It is trite that in vernacular a mattress on the floor laid out for sleeping may sometimes be described as a bed. Otherwise all say there was no bed as such.

The other point of dispute regards whether the bed was carried from the home by PW 7 or it was ferried on a boda boda as mentioned by PW 2 and PW 3. This was indeed a major discrepancy and no effort was made to clarify the point. This court must determine if this contradiction goes to the very core of this case and is so fundamental that it renders the prosecution evidence unreliable. In my view it does not have that effect. The witnesses were all consistent on the material point which is that the accused sold off the bed and it was not at home by the time PW 1 returned from work. I therefore find that though this was a major discrepancy it did not affect the overall credibility of the case.

I also find the following passages cited in **Tumuheire v Uganda** [1967] 1 EA 328 relevant here:

As was said by Lord Normand in *Teper v. R*. (1) ([1952] A. C. at p. 489):

Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another … 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 influence.

In *R. v. Taylor*, *Weaver and Donovan* (2) the principle as regards the application of circumstantial evidence was enunciated in these words:

Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.

The evidence in this case must be looked at as a whole. The accused stated that he left the baby alive. However, the series of events above go beyond casting a mere suspicion on the accused. When examined closely is it is irrefutable that there can be no other explanation for the death of the Nalule than that it was caused by Kakinda. His denial cannot stand in the circumstances. The only inference that can be drawn from the facts is that it was he who killed the deceased. The fourth element of the offence has therefore been proved.

I therefore find, in agreement with the assessors, that **Kakinda Ivan** is *guilty* on the offence of Murder Contrary to Sections 188 and 189 of the PCA and are hereby *convict* him.

**Dated at Kampala this ………. Day of November 2022**

**..................................................**

**Michael Elubu**

**Judge**