Uganda v Kapuru Julius (Criminal Session 103 of 2024) [2025] UGHC 387 (15 May 2025)

**THE REPUBLIC OF UGANDA**

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

**HCT-25-CR-SC-0103-2024**

**UGANDA================================================PROSECUTION**

**VERSUS**

**KAPURU JULIUS ==============================================ACCUSED**

**BEFORE: HON. JUSTICE** **DAVID S. L. MAKUMBI**

**JUDGMENT**

The indictment in this matter is that of murder contrary to Sections 171 and 172 of the Penal Code Act.

The Prosecution case is that on the 25th of July 2023, Kapuru Julius and others still at large at Kitsutsu village, Bwera sub-county in Kasese district caused the death of Wamala Iddi with malice aforethought.

It is alleged that the Accused person went to the home of the deceased whom he had met in Katojo Prison and persuaded him to accompany the Accused to Kitsutsu village to look for market for gold. The deceased then bid farewell to his wife Baseme Shakira and left with the Accused. The deceased failed to return home and was missing till his body was discovered dumped in a pond in Kitsutsu on 27th July 2023.

The matter was reported to Police which commenced investigations leading to the arrest of the deceased. During the investigations it was established that the Accused person had called the deceased from Phone No. 0760689004 to Phone No. 0772304264 on the day the deceased disappeared.

The Accused person initially disappeared and eluded arrest.

A post mortem examination was conducted on the deceased and it was established that the deceased had died from severe blunt force trauma to the head.

The Accused person was medically examined and found to be mentally stable.

According to the time-honoured case of **Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The guiding precedent in Uganda to date is the case of **Miller v Minister of Pensions (1947) 2 All ER 372** wherein Lord Denning stated at Pages 373-374 that,

*“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”*

The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

For the accused person to be convicted of Murder, the prosecution must prove each of the following essential ingredients beyond a reasonable doubt.

1. Death of a human being occurred, 2. The death was caused by some unlawful act, 3. That the unlawful act was actuated by malice aforethought, and 4. That it was the accused who caused the unlawful death.

Death a human being may be proved by the production of a post-mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body (see **Kimweri v Republic [1968] EA 452**).

According to the a post-mortem report, authored by Dr. Bwambale Dan, a Medical Officer at Bwera Hospital, dated 28th July 2023, the cause of death of the deceased, a male adult, was severe traumatic blunt head injury. According to the report, the body was identified to him by PW2 Baseme Shakira, the wife of the deceased as that of Wamala Iddi. The said post mortem report was received in evidence (marked PEX 2) as an agreed document by the Prosecution and the Defence.

PW1 Kyomya Jackson testified that the deceased was his brother and that he had seen the deceased’s body in the mortuary.

The fact of the deceased’s death was never contested and I find that the Prosecution has proved beyond reasonable doubt that the deceased Wamala Iddi did in fact die.

As concerns the unlawful nature of the deceased’s death, the Prosecution had to prove that the death of Wamala Iddi was the result of an unlawful act. Any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law **(see *R v. Gusambizi s/o Wesonga (1948) 15 EACA 65*)**.

In order to establish the death as a homicide, direct or circumstantial evidence must sustain a causal link between an unlawful act attributed to another human being and the eventual death of the deceased. The evidence must establish attribution of causal responsibility for the resultant death to the unlawful act of another human being as a preliminary step towards the eventual attribution of criminal culpability to that person. The evidence should rule out the possibility of an accidental, suicidal or natural death.

According to the post mortem report (PEX 2), the deceased’s body had multiple external injuries including skin peeling off around the eye, depressed skull around the occipital areas with some bruises around it. The cause of death was severe traumatic blunt head injury.

PW3 Baita Charles the LC1 Chairman of Kitsutsu testified that on 28th July 2023 he had been notified about the discovery of the deceased’s body by way of a phone-call from a man grazing goats. He further testified that upon reaching the scene he had found the body partially submerged in stagnant water and he had then called the police.

PW3 D/C Akullu Zubairi testified that he was the investigating officer and had gone to the scene of crime on 27th July 2023 and had drawn a sketch plan of the scene admitted in evidence as PEX 3. He further testified that the deceased had been killed next to the pool of water but the murder weapon was not recovered. He further testified that the body was recovered late at night and had already been tampered with.

In considering the evidence concerning the unlawful act I bear in mind the fact that the deceased’s body was found to have a depressed skull fracture to the occipital area which is the back of the skull as well as bruising. This Court did not have the benefit of hearing from the Medical Examiner as the Prosecution did not see fit to call them to testify. However, the practice of tendering in Medical Reports without producing the authors of the same ostensibly because the Medical Report is an agreed fact, is a risky practice which should be discouraged especially in cases where there is only circumstantial evidence of the facts for which the report is intended to prove. It should be understood that the fact of admission of a document as an agreed fact cannot be considered as conclusive proof of the facts that the document is admitted to prove. The contents of the document admitted under Section 67 of the Trial on Indictments Act must be evaluated and weighed to establish whether they prove a fact beyond reasonable doubt. This can only be effectively achieved either by producing the author of the document or by the author providing sufficient enough detail as to leave no doubt as to the meaning of the content.

In this matter it is pertinent to note that the murder weapon was not recovered and also that PW3 testified that the body had been tampered with. This opens up the question as to whether the nature of injury to the deceased was the result of foul play such as a deliberate blow to the head or the deceased having fallen and fatally injured himself. However, I shall take into account that the report alludes to “bruises” in plural around the area of injury which I take to suggest that the deceased may have been hit on the head repeatedly. In which case, and also given that the unlawful nature of the death was not contested by the Defence, I do find that the Prosecution has proved beyond reasonable doubt that the circumstances of the deceased’s death were unlawful.

The Prosecution is also required to prove that the cause of death was actuated by malice aforethought. Malice aforethought is defined by Section 174 of the *Penal Code Act* as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. This may be deduced from circumstantial evidence **(see *R v. Tubere s/o Ochen (1945) 12 EACA 63*).**

Furthermore, in the case of **Mumbere v Uganda – Supreme Court Criminal Appeal No 15 of 2014**, the Supreme Court held that,

*“The elements of malice aforethought are well set out under Section 191 of the Penal Code Act as follows:*

*‘****Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances—***

***(a) an intention to cause the death of any person, whether such person is the person actually killed or not; or***

***(b) knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.’***

*We also wish to note that this Court in****Nandudu Grace & Another v. Uganda, Criminal Appeal No.4 of 2009****reiterated the ratio in the earlier decision of this Court in****Francis Coke v. Uganda [1992-93] HCB 43****that the existence of malice aforethought is not a question of opinion but one of fact to be determined from the available evidence.*

*We also hasten to add that in determining whether the prosecution has proved malice aforethought, the Court has to examine the circumstances surrounding each case. These circumstances include:*

1. *the nature of the wounds inflicted;* 2. *the part of the body injured;* 3. *the type of weapon used;* 4. *the conduct of the accused person immediately before and after the injuries causing death were inflicted; and,* 5. *the manner in which the weapon was used-whether repeatedly or not.”*

According to the postmortem report PEX 2, the deceased’s body had multiple external injuries including skin peeling off around the eye, depressed skull around the occipital areas with some bruises around it. The cause of death was severe traumatic blunt head injury. PW3 described the body as having been found partially submerged in stagnant water.

The Prosecution argued that the nature of injuries found on the deceased as well as the part of the body targeted suggested that whoever was responsible for inflicting the injuries either intended to kill the deceased or ought to have known that the injuries could result in death. The ingredient of malice aforethought was not contested by the Defence.

When I consider the available evidence I am inclined to agree with the Prosecution that the injuries inflicted on the deceased were done in a manner that reflected either an intent to kill or a callous disregard for the obvious risk of death given the vulnerable nature of the head.

I therefore find that the Prosecution has proved beyond reasonable doubt that the deceased was killed with malice aforethought.

Aside from the ingredients already analysed above, there should also be credible direct or circumstantial evidence placing the Accused at the scene of the crime as an active participant in the commission of the offence.

For his part the Accused person denied participation in the crime. The Accused person gave unsworn evidence in his own defence by which he admitted that he knew the deceased person. In his testimony the Accused person stated that he had been arrested by police for having escaped from prison. He then went on to state that he had been tortured while in police custody. However, the allegations of torture were rejected by this Court as there was Police Form 24 on record as PEX 1 admitted as an agreed fact by which there was no indication that the Accused person had been tortured.

However, the onus remains on the Prosecution to prove its case against the accused person. See ***Kazibwe Kassim v Uganda, S. C. Crim. Appeal No. 1 of 2003-[2005] 1 ULSR 1.***

In proving the circumstances of the participation of the Accused in the murder, the Prosecution relied upon four witnesses.

According to PW1, Kyomya Jackson, stated that he knows the accused as a friend to the deceased as they were together in Katojo Prison. He stated that on 26th July 2023 at around 8PM, the accused and the deceased came to his home and said they were going to the gold mine in Rwakangwa and they left around 9PM. PW1 further stated that they had told him they would return to eat but unfortunately they did not return by morning and PW1 subsequently received information that morning that the deceased had been killed. He then went to the mortuary and identified the body as that of the deceased. He stated that the deceased was hit at the back of his head and that they poured acid on his face.

PW2, Baseme Shakira, a wife to the deceased, stated that she knows the Accused and that on 26th July 2023 he came to her home at around 4PM and told her that he has some gold for her husband (the deceased) to sell in Kampala. PW1 went onto state that she was told by the accused that he had been talking to the deceased on phone but ran out of airtime, and when told to call him, she told the Accused person that it was the deceased with her phone. PW2 later bought airtime and tried to call the deceased. She stated that the deceased had earlier told her about the gold transactions with the accused. PW2 went on to state that the deceased later arrived and they left hurriedly. The next morning she tried to call the deceased’s phone but was not available until 26th July 2023 when the deceased was found dead. During cross examination, PW2 stated that it was her first time on the fateful day to see the accused and that her deceased husband had never dealt in gold before and that the accused did not bring gold at her home. She stated that at the time of his death, the deceased was the one with PW2’s phone.

PW3, Baita Charles testified that on 28th July 2023, he was alerted about a dead body in the stagnant water near the mine and he immediately responded. He stated that he saw the feet and the body was deep in the water. He then called police which came and took the body to the mortuary.

PW4, No. 36956 D/C Akullu Zubairi, the investigating officer who testified that the file of the murder of the deceased was allocated to him for investigation and that the body was found in a pool of water and that the relatives of the deceased gave information that the deceased was picked from home by the accused. The witness stated that the accused confessed that they had moved together with the deceased to where he was killed and that he was killed by his co-workers who were ADF rebels. The witness stated that he retrieved the deceased’s phone record and found that the deceased had only communicated to the accused. He prepared a sketch map of the scene which is marked PEX3. The witness stated that he was led to the scene of crime by the area authorities and retrieved the body of the deceased. The prosecution sought to admit call data into evidence but the said evidence was never proved before court and was therefore not admitted.

During cross examination, the investigating officer states that the accused confessed but a charge and caution statement was never recorded. He further stated that the accused was killed because he received money from ADF to do some work which he failed to do and that the accused was told to take the deceased to where he was killed from. The witness states that he never established any ADF connections and whether the accused had been seen with the deceased at the scene.

During re-examination, the witness states that he did not retrieve voice from MTN because it was a long process and did not see any need to retrieve the same. He stated that the accused was subjected to a charge and caution statement and that the accused confessed that he had taken the deceased to the scene and had witnesses the killing. When court made an inquiry to the witness, the witness stated that the charge and caution statement was recorded by D/AIP Bwambale Jasmin and that when he went to the scene, he did not have a Scene of Crime Officer.

The charge and caution statement was never tendered in evidence and was therefore of no evidential value in this matter. Likewise there was no evidence tendered in Court to back up the testimony about the phone-calls made between the Accused person and the deceased.

Counsel for the Accused had previously submitted arguing that the Accused had no case to answer. It is these submissions that this Court now considers as no submissions were filed at the close of the Defence case. In summary Counsel for the Accused argued that the deceased and the Accused person had been seen on the day of his disappearance at Kinyamaseke almost 10 kilometres away from the scene of crime and it was therefore not known if they had moved together to the scene of crime. Counsel further argued that the deceased’s body had no forensic evidence linking it to the Accused person.

It was further argued that there was no evidence placing the Accused at the scene of crime and that as such the Prosecution had failed to prove the participation of the Accused person.

From the evidence on record, there was no single eye witness to the offence. The Prosecution therefore largely relied on circumstantial evidence with regard to the conduct of the Accused and soon thereafter as well as the “last seen” doctrine.

The principles which courts apply in deciding cases based on circumstantial evidence were well summarized by the Supreme Court in ***Akbar Hussein Godi vs Uganda, SCCA No. 03 of 2013,*** which had earlier been stated in ***Byaruhanga Fodori vs. Uganda, S. C. Crim. Appeal No. 18 of 2002*** where the Supreme Court of Uganda held that,

*“It is trite law that where the prosecution case depends solely on circumstantial evidence, the Court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.”*

The Supreme Court in ***Janet Mureeba and 2 others vs Uganda, Supreme Court Criminal Appeal No. 13 of 2003*** stated that,

*"Generally, in a criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused."*

Furthermore, in ***Tindigwihura Mbahe v Uganda SCCA No. 9 of 1987***, Court issued a warning that circumstantial evidence must be treated with caution, and narrowly examined, because evidence of this kind can easily be fabricated. Therefore, before drawing an inference of the accused's guilt from circumstantial evidence, there is compelling need for you to ensure that there are no other co-existing circumstances, which would weaken or altogether destroy that inference.

On the doctrine of last seen, the Court of Appeal in ***Busingye Paul and Another Vs. Uganda Criminal Appeal No. 048 of 2019*** *q*uoting the Nigerian case of ***Moses Jua Vs. The State (2007) LPELR-CA/IL/42/2006,*** held that,

*"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 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. ln the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”*

Furthermore, in ***Jagenda John v Uganda CACA No. 001 of 2011,*** the Court of Appeal of Uganda while commenting on the last seen doctrine noted that,

*"the last seen doctrine which has global application to homicides, our view is that, this doctrine creates a rebuttable presumption to the fact that the person last seen with a deceased person bears full responsibility for his or her death... In the present appeal, the deceased was last seen alive at the Appellant's bar and the Appellant was present in the premises. He therefore had a duty to give an explanation relating as to how the latter met her death."*

In this matter the question is not whether the Prosecution placed the Accused at the scene of crime as to prove participation but rather to prove that the Accused person was the last person to have been seen with the deceased alive. In this matter PW1 and PW2 testified clearly that they had seen the Accused person with the deceased on the 26th of July 2023 which was effectively the last day that the deceased was seen alive.

Going by the holdings in the **Busingye** and **Jagenda** above the central issue to consider in proving participation is not so much the presence of the Accused at the crime scene but whether he was in fact the last person seen with the deceased. This issue is clearly not disputed because even the Accused person admitted knowing the deceased and despite claiming to have been arrested for another reason he never adduced any specific evidence to rebut the testimonies of PW1 and PW2 placing him as the last person seen with the deceased before he died. To that extent he failed to provide an explanation concerning how the deceased died and the inescapable conclusion could only be that he bore some responsibility in the circumstances leading to the death of the deceased.

The rationale behind the “last seen” doctrine shifts the focus from placing the Accused person at the scene of crime and participation in the crime to a circumstantially based assumption that since the Accused was the last person to have been seen with the deceased prior to their death then it is incumbent on the Accused to either provide irrefutable proof by way of alibi to account for the period between when they were seen with the deceased and when the deceased was subsequently discovered dead. Once the Prosecution places the Accused as the last person to be seen with the deceased alive then in the absence of any evidence to the contrary the circumstantial inference is that the Accused must be responsible for the death of the deceased in line with the principles laid out for the evaluation of circumstantial evidence in the **Akbar Hussein Godi** and **Janet Mureeba** decisions cited hereinabove.

I find therefore that the Prosecution has proved beyond reasonable doubt that the Accused person was responsible for the death of Wamala Iddi.

I therefore agree with the Assessors and find that based on the circumstantial evidence the Prosecution has proved beyond reasonable doubt that the Accused person Kapuru Julius is guilty of murder of Wamala Iddi contrary to Sections 171 and 172 of the Penal Code Act and I do hereby convict him of the same.

**ALLOCUTUS:**

The Prosecution presented the following aggravating factors in sentencing:

* The convict is guilty of a capital offence. * The sentencing guidelines specify a starting point of 35 years and a sentencing range of 30 years up to death for murder. * The injuries inflicted on the deceased were a result of extreme violence. * The convict was the deceased’s friend and betrayed his friendship in that regard. * The convict attempted to conceal the murder and attribute the same to ADF rebels.

Counsel for the convict presented the following arguments in mitigation:

* The convict is a first time offender. * Convict has been on remand since 31st August 2023 and has spent over a year on remand. * Convict is remorseful and conducted himself well throughout trial. * Convict has a wife and 8 children. * Convict is 34 years old and capable of reform. * Convict was mistreated in police cells and has renal dysfunction.

Counsel concluded by pleading for leniency. The Convict was also granted opportunity to address Court and prayed for a lenient sentence as he had been injured during arrest. He further informed Court that he could not afford medication in prison and that his children had dropped out of school.

**SENTENCE:**

I have considered the arguments in aggravation and mitigation as well as the circumstances of this offence. I note that this is an offence involving the deprivation of life which is among the highest forms of depravity in society if not the highest. The taking of a life is irreversible and devastating in impact on the family and friends of the victim. I also noted that contrary to what his Counsel stated the convict has not expressed any remorse for his role in this matter and seemed more focused on highlighting his own medical condition.

The circumstances prior to the disappearance and eventual death of the deceased are also of concern to me. The deceased’s wife testified in Court that the convict went to the deceased’s home and told her grand stories about how he and the deceased were going to get rich out of a gold deal. The deceased got back home and eagerly left with the convict unaware that he was being led to his death. To me this reflected an element of pre-meditation in terms of luring the deceased to what ultimately resulted in his death. There is therefore need for a deterrent message with regard to such extreme acts of violence.

I have also taken into account the fact that the convict is first time offender and also a breadwinner although no evidence of this was presented in Court. This Court notes the tragic dilemma that involves the inevitable impact that incarceration will have on the convict’s family if any. However, this Court is also mindful of the impact of the convict’s actions on the family of the deceased and it is in this regard that this Court is faced with the unenviable and yet necessary task of ensuring justice for the victim and his family while at the same time remaining mindful of the impact on the families of the convicts.

In the circumstances I do hereby sentence the convict to serve a term of 20 years imprisonment less time spent on remand of 1 year, 4 months and 15 days.

The convict shall therefore each serve a remaining term of 18 years, 7 months and 15 days.

Right of Appeal explained.

**David S. L. Makumbi**

**JUDGE**

**15/05/25**