Uganda v Kato Kajubi (Criminal Session Case 28 of 2012) [2012] UGHC 414 (26 July 2012)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA, AT MASAKA

SESSION CASE NO. 28/2012

**UGANDA**

**PROSECUTION**

Versus

KATO KAJUBI GODFREY

**ACCUSED**

## BEFORE HON. MR. MIKE J. CHIBITA

## JUDGMENT

The accused, Godfrey Kato Kajubi, is charged with the murder of Joseph Kasirye, a child of about 12 years. It was alleged that on or about 27<sup>th</sup> October, 2008 at Kayugi village, Katwadde, Mukungwe, Masaka District, the accused, with others still at large, murdered the deceased.

The child was staying with his grandparents next to the home of a couple, Umar Kateregga and Mariam Nabukeera who were implicated in the murder and later became State witnesses.

The body of the deceased was recovered minus the head and private parts. The accused was arrested following information furnished by PW 7. Umar Kateregga.

According to the summary of the case dated 13<sup>th</sup> February, 2012 and signed by Principal State Attorney, Vincent Wagona, the accused was originally tried in Masaka Criminal Session Case No. 16 of 2009 but was acquitted following a submission of no case to answer.

Prosecution appealed to the Court of Appeal which ordered for a retrial, hence the present trial. The summary of the case stated that

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the accused did not attend the judgment in the Court of Appeal and neither did he pursue his appeal to the Supreme Court, which was subsequently dismissed.

Prosecution believes that the accused person went into hiding soon after the judgment of the Court of Appeal. He was however rearrested from Lweza on Entebbe road and later transferred to Masaka to stand trial.

The accused is therefore charged with murder contrary to sections 188 & 189 of the Penal Code Act. There are four essential ingredients to be proved in a case of murder, namely that;

- Death of the deceased happened. - The death was unnatural and unlawful - There was malice aforethought - That the accused persons participated in the offence.

The burden of proof in murder cases is always upon the prosecution and does not shift at all. The standard of proof is proof beyond reasonable doubt.

The first three ingredients have been agreed to by the parties and Police Form 48 (PE 1) tendered as evidence. The fourth ingredient about the participation of the accused person is what prosecution set out to prove in this case.

To prove its case prosecution produced 18 witnesses as follows:

- PW I: DR. STEPHEN BAWAKANYA. He carried out the Post mortem on the deceased Joseph Kasirye and tendered Police Form 48, Exhibit PE 1. - PW2: DR. MOSES BYARUHANGA, carried out the medical examination of the accused person and found him to be of sound mind. He tendered Police Form 24, Exhibit PE 2

- PW 3; PAUL KASIRYE, paternal uncle of the deceased. He saw PW 7 come and talk to the deceased at deceased child's grandfather's home. Participated in searching for deceased at PW 7's residence where he found car tyre marks, participated in searching the house and finding the body of the deceased at the swamp later on. - PW 4: JOSEPH MUGWANYA: Is the father of the deceased child. He knew PW 7 as a witchdoctor. Was just told about the disappearance of his son but participated in the search and eventual discovery of the body. He stated that while at Masaka Police Station he heard PW 7 say; "Don't beat me, I am the one who killed the child with Kato Kajubi." - PW 5: SPC CHARLES SSEBWAANA, He stated that he got a call about the disappearance of the child. He found PW 7 and 8 along the road and arrested them and took them to Kako Police Post. Stated that PW 8 had admitted to him that the accused had slaughtered the child, the deceased. - PW 6: GERALD MATOVU; Stated that both PW 7 and 8 admitted to him, at different times, separately, that the accused person had participated in the death of the deceased. He also went with the party to Masaka Police Station and later with the party to recover the body. - PW 7: UMAR KATEREGGA: Stated that he lured the child from his home to give him to the accused to work in his poultry farm. That the accused and another drove to his house and slaughtered the child in his presence. That he had a pistol. That they talked on phone prior to the murder. That he dumped the body in the swamp. That he knows the accused well having been his witchdoctor and knows several of the accused person's homes in Masaka and Kampala. - PW 8: MARIAM KATEREGGA: Corroborated most of what PW 7 stated except that she did not witness the murder since she was forced out of the room prior to the murder.

- PW 9: SP CHRISTOPHER RUGUMAYO; Stated that he was involved in the investigation and interrogation of PW 7 who admitted to him that the deceased was murdered by a one Stephen on the orders of the accused who was stepping on the legs. He went with the search party and recovered the body. PW 7 led his team to accused person's homes but accused was not found. - PW 10: D/IP RASHID NYANZI; Was the Scene of Crime Officer (SOCO) who went to the scene and took pictures that were tendered in. He also got a court order to trace calls between 0772 700921 and 0773 717631 on the dates in question. Participated in searching for accused led by PW 7 but recovered gun jacket, gun oil and photo of the accused person. - PW 11: D/AIP STEPHEN ETYANG; corroborated PW 10. - PW 12: D/ASP SULEMAN KABUYE; He searched the accused person's premises in Bunga, Kampala that had not been searched by previous two and recovered several items including a panga hidden under a sofa set, a shortgun, revolver, six live bullets, four rubber bullets and certificates of legal possession of the guns. He recorded a plain statement were accused admitted knowing PW 7 and owning and using phone number 0772 700921 to call PW 7. - PW 13: ASST COMMISSIONER PAUL KATO; Re arrested the accused in presence of his lawyers in the office of PW 16. He later went for a search in the residence of the accused in Gayaza, Masaka, but found nothing of interest. - PW 14: ASP GERALD T. BYENSI; Stated that while driving in Lubowa, Kampala, he saw the accused who was wanted by Police. He trailed him and eventually arrested him and transferred him to CPS. - PW 15: D/IP BERNARD BABU; He was issued with a warrant of arrest and failed to find the accused person after searching his known residences.

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- PW 16 A/IGP MOSES BALIMOYO, Stated that he received a phone call from Counsel Kabega and shortly thereafter Counsel and the accused reported to his office at CID headquarters. He later handed over the accused to ACP Paul Kato. That he received a pistol, ammunition and firearm certificates from the accused. - PW 17 JOSEPH MUYANJA, and - PW 18 JAMES SSEKAMATE were both employees of MTN and the sum total of their evidence was to show that phone line number 0772 700921 was in communication with phone line number 0773 717631 many times each day between 15<sup>th</sup> October, 2008 and 30<sup>th</sup> October, 2008

At the close of the prosecution case, a prima facie case was established against the accused person and he was put to his defence.

- DW 1: GODFREY KATO KAJUBI (accused person); Gave unsworn evidence meaning he could not be cross examined. He denied ever committing the offence he is charged with. He stated that he travelled to Masaka on the night in question but forgot his phone with a one Ssuna. He was arrested and his homes searched but no evidence of the deceased person's body parts was ever found.

The accused person also called two more witnesses:-

- DW 2: HIS WORSHIP DAVID BATEMA NDIKABONA told court that, while stationed in Masaka as Chief Magistrate, he took statements from Umar Kateregga and Mariam Nabukeera in Luganda, which he knows very well, but recorded them in English.


DW 3: D/SGT MIGADDE; Testified that he recorded the statements of Kateregga and Nabukeera, was the Investigating Officer and visited several of the accused persons residences looking for him.

Prosecution was represented at the trial by learned Principal State Attorney, Susan Okalany and learned State Attorney John Baptist Asiimwe. Learned Counsel Fred Kamugunda represented the accused person on State brief up the point of finding of a prima facie case.

At the opening of the defence case, about two months later he together with learned Counsel Ausi Twijukye and learned Counsel Dennis Ariho represented the accused person on private brief.

The accused person's Counsel, Fred Kamugunda, invited court to find that the accused person was being persecuted rather than prosecuted. As evidence of this he pointed to the words of PW 12 detective Assistant Superintendent of Police Suleman Kabuye who stated that his task was to look for evidence incriminating the accused

He also pointed to the evidence of DW 3 detective Sergeant Migadde who recorded a statement from PW 7 and PW 8, where they confessed to the murder but instead prosecution decided to prefer charges against the accused person.

Counsel Kamugunda invited court to find that PW 7 was a liar whose evidence could not be relied upon. As evidence of his lies, he pointed out that in one of his statements PW 7 stated that he was present when a one Stephen beheaded the deceased in the presence of the accused person.

However PW 3 testified that when asked about the whereabouts of the child that morning he denied knowledge, which prompted PW 3 to admit that PW 7 was a liar.

According to Counsel, in another statement, PW 7 stated that he personally cut off the deceased person's head while his wife, PW 8, held the legs.

PW 7 told his wife that they were going to Masaka Police Station to report yet when they met PW 5, SPC Ssebwana, whom he knew as a Policeman, he did not report to him. This, according to Counsel, was another contradiction that showed that PW 7 was a liar.

Counsel also asked court to note that in his evidence PW 7 admitted that he lied to the accused when he told him that he would bring back his spirits in exchange for a sum of money yet he knew he was unable to do so.

Other inconsistencies that Counsel pointed out in the evidence of PW 7 include his denying knowledge of the car that came to his house yet at another time claiming to know the accused. That he stated in his testimony in chief that he recorded the extra judicial statement at 8.30 p.m.

Yet when DW 2 testified he stated that it was at 5.00 p.m. that he recorded his statement. (The court record indicates that PW 7 said he was not sure what time he recorded the extra judicial statement but hazarded 7.30 p.m. when pressed)

That PW 7 told court that the accused rang him several times on 27<sup>th</sup> October, 2008 yet the MTN print outs showed otherwise. He wondered whether it was the MTN members of staff who were telling lies or the witness.

Additionally, according to Counsel, their conduct after the murder shows that indeed they were running away from the long hand of the law when they packed their belongings and tried to flee.

He asked court to find that the two, PW 7 and 8 indeed committed the offence and confessed to several Police Officers including PW 9 and DW 3.

On the other hand, Counsel told court, the accused had consistently denied the allegations of murder since the time of his arrest, up to his present court appearance.

He therefore asked court not to rely on the evidence of PW 7 and PW 8 and find that prosecution had failed to prove its case against the accused person beyond reasonable doubt.

Learned Principal State Attorney Okalany asked court to find that prosecution had proved beyond reasonable doubt that the accused person participated in the crime. She asked court to rely on the evidence of PW 7 and PW 8 who had been eye witnesses to the murder that took place in their house.

She contended that it had not been disputed that PW 7 knew the accused person. He saw him and identified him as the one who came to their house the night the deceased was murdered.

On PW 7 being called a liar by Counsel for the accused person, the learned Principal State Attorney begged to differ. She conceded that whereas the witness may have lied to the villagers, she averred that the witness never lied to court about the manner of killing of the deceased.

She reminded court that the witness, PW 7, explained to court why he lied, which was to protect his life from possible lynching by the irate villagers. She therefore concluded that the witness explained to court why he lied, whenever he had told a lie.

As evidence of the possibility of being lynched by the villagers, she pointed to the evidence of PW 6 and PW 9 who stated that a crowd was beginning to gather at Kako Police Post forcing them to move the duo to Masaka Police Station.

Another incident of the possibility of lynching PW 7 was the reported setting up of road blocks which were found when the Police went to recover the remains of the deceased from where PW 7 had directed them.

These two incidents, according to Prosecution Counsel clearly show that the witness was right to fear for his life.

She asked court to disregard exhibits DE 8 and DE 9, the plain statements of PW 7 and PW 8 as being worthless because the witnesses had not been cross examined on them. She relied on section 144 of the Evidence Act for her assertion.

She also referred court to the case of Ojede s/o Odyek vs R 1962 **EA 496,** which upheld section 144 of the Evidence Act.

Prosecution Counsel further referred court to the testimonies of PW 4, PW 6 and PW 9 to support her assertion that PW 7 and PW 8 had been forced to make the statements since they had been beaten up prior to making those statements.

She invited court to consider PE 25 as the true statement of PW 7 and PW 8 since it was consistent with what they stated in court in addition to the fact that they were made without duress.

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The two statements are consistent about who participated in the murder, who killed the deceased and who took the head and private parts, which is consistently the accused person.

Regarding the evidence of PW 12 Kabuye's testimony that he was sent to find incriminating evidence in order to persecute the accused, she dismissed it as a misunderstanding off the witness' job which involved looking for leads in crimes.

She similarly dismissed the accused person's Counsel's reference to the time disparity between PW 7 and DW 2 regarding when the extra judicial statement was actually made.

She said the statement was bulky and could have taken a long time. In any case, she added, the witnesses did not have watches to tell what the exact time was.

The Principal State Attorney further dismissed Counsel's assertion that PW 7 lied when he testified that he called the accused on $27^{\rm th}$ October, 2008. She pointed out that indeed the accused person called PW 7 several times that night as per evidence of PW 17 and PW 18 and the exhibits they tendered in.

She also contended that the two were not fleeing their home with all their belongings, as submitted by Counsel for the accused person. Most of the witnesses' property was left in the house and set on fire by the villagers, she contended.

She pointed to the evidence of PW 3 and PW 4 concerning tyre marks as being corroborative of that of PW 7 and PW 8 that indeed a car came to the house to pick the body and parts of the deceased.

Evidence of PW 4, 6, 9 and 10 shows that the body of the deceased was without a head and private parts just as PW 7 and PW 8 had testified.

Evidence of PW 11 and PW12 and exhibits PE 7, 8, 10, 13, 14-22 showed the search of the accused person's houses in Kampala and Masaka, Gayaza.

PW 16 received a pistol from the accused person all of which corroborate what PW 7 said about where the accused person stayed and how he owned a pistol which he had on the night of the murder.

She contended that his disappearance from his known places of residence was confirmed by his own son called Michael, was not disputed and was inconsistent with innocence. She also pointed to his disappearance a second time after the appeal was allowed as evidence of a guilty mind.

Finally, she pointed out the MTN print outs actually confirmed that the accused and PW 7 were in touch many times on the night of 27<sup>th</sup> October, contrary to what was claimed by Counsel for the accused person.

Learned Principal State Attorney, Asiimwe associated himself with his colleague's submissions and went further and disputed Defence Counsel's categorization of PW 7 and PW 8 as liars.

He stated that to determine whether PW 7 and PW 8 were liars or not, court had to look at the whole evidence and the circumstances under which the offence was committed. He referred court to the case of Bogere Moses and Kamba Robert Vs Uganda Cr Appeal No. 1 of 1997, 19.

He also dismissed defence Counsel's allusion to Shs 360,000/= allegedly taken away from PW 8 at Kako Police Post but which was not exhibited by the prosecution as not being relevant to the case.

He also asked court to disregard the plain statements of PW 7 and PW 8 as being inadmissible under section 144 of the Evidence Act. He also pointed out that PW 7's testimony that he had been to the accused person's homes in Gayaza and Makerere had been corroborated.

Moreover, the accused person had remained silent on the contention by PW 7 that they knew each other, he added. He informed court that he was alive to the law that the accused person owed no duty to prove his case but a deliberate lie by him corroborated prosecution evidence.

Finally he stated that another piece of corroborative evidence was provided by the accused person himself when he said he had a sick aunt called Teresa Nantaba.

The Search Certificate, exhibit PE 7, signed after searching the accused person's home was indeed signed by the said Teresa Nantaba.

It further proved that he had gone missing because the accused person never reported despite the fact that a message requiring him to report to Police was left at his home where the said Nantaba was staying.

Learned Counsel Kamugunda averred that PW 7 had been cross examined on the contents of DE 8 going by the submissions of learned Principal State Attorney Susan Okalany. Hence, he argued, there was no contravention of section 144 of the Evidence Act.

Learned Counsel Twijukye emphasized the contention that PW 7 and PW 8 were escaping by the fact that they had Shs 360,000/= yet chose to walk rather than travel by taxi.

He disputed the allegation that the accused knew that he was being looked for since there is no evidence of summons issued. He therefore called upon court to find that prosecution had failed to prove its case beyond a reasonable doubt.

Learned Counsel Ariho submitted that the allegations of conversations between the accused and PW 7 showed only phone numbers but no data or evidence of what was discussed had been adduced.

As earlier stated, the Counsel on both sides agreed to the first three ingredients. Court is satisfied that a child known as Joseph Kasirye was murdered unlawfully and with malice aforethought on or about 27<sup>th</sup> October, 2008.

The body was discovered, decapitated, without a head and without its private parts. Evidence of malicious, unlawful death is therefore well established.

According to the State case, the accused person whom they portrayed as a rich business who dabbled in witchcraft, procured the services of Kateregga, PW 7, in order to get a human being, a child, whom he could sacrifice for purposes of propagating and protecting his wealth.

The accused person, in furtherance of that mission paid an advance fee of Shs 360,000/ $=$ to PW 7, who accordingly lured the deceased to his home where the accused and another still at large, murdered the deceased in the presence of the PW 7.

During the trial both sets of Counsel went to great lengths to base their submissions on PW 7, Umar Kateregga. It is important therefore for me to caution myself that PW 7 Umar Kateregga and

PW 8 Mariam Nabukeera were central to this whole tragedy and therefore their evidence is akin to that of an accomplice.

I am additionally alive to the fact that they have in effect confessed to participation in this crime.

However, I am also aware that it is not PW 7 and PW 8 who are on trial. It is the accused person who is on trial. Prosecution, in its wisdom, decided not to charge PW 7 and PW 8 but instead to use them as witnesses

Prosecution has that prerogative and I will not begrudge them that decision

To determine whether one is telling a lie or not it is not only important but also imperative to know the truth. To establish whether PW 7 and PW 8 are liars it is important to establish a baseline for what is true in this case.

What is known to be true is that there was a child called Joseph Kasirye who was living with his grandfather, a neighbor to PW 7 and PW 8 who was killed. How do we know this?

We know about the existence of the child from PW 3 his paternal uncle, PW 4, his father and PW 7 the neighbor. We know that the child is dead from PW 1, PW 3, PW 4, PW 5, PW 6, PW 7, PW 8, PW 10 and DW 3. We also have exhibits PE 1 and PE $4(a-h)$ .

The child was last seen alive on 27<sup>th</sup> October, 2008 according to the evidence of PW $3$ , $4$ , $7$ , and $8$ .

We know that the body had no head and private parts from PW 1, 3, 4. 6. 7. 8 and 10. We also know that the head and private parts have never been found.

From these same witnesses with the exception of PW 1, we know that the body was found where it was dumped and that it is PW 7 who directed the search party to where the body was.

We know that a motor vehicle came to the home of PW 7 and PW 8 as testified by PW 3, PW 7 and PW 8 on or about the night of $27^{\rm th}$ October. This was not disputed.

The accused person owned phone line number 0772 700921 while PW 7 owned phone line number 0772 717631. There was communication using these two phone numbers on 27<sup>th</sup> and 28<sup>th</sup> October, 2008. This is according to PW 7, PW 17 and PW 18 and also as per exhibit PE 23.

In all these instances therefore, we are able to establish that PW 7 and PW 8 were able to state the truth and associate with the witnesses that stated the truth. They were on the side of the truth.

The two however, as learned Counsel pointed out, told a number of lies. Indeed PW 7 himself in his testimony to court admitted to telling lies.

PW 7 lied to PW 3, the uncle of the child that he did not know the whereabouts of the deceased when, in fact he knew he had been killed the previous night.

He lied to PW 5 that they were going to a clinic when he intercepted them leaving home the morning of 28<sup>th</sup> October, 2008.

According to PW 6 he lied to him about the identity of the person to whom he had given the child. Indeed he lied that the deceased was alive at this point when in fact he had already been murdered.

PW 7 admitted to have lied to the accused person regarding his ability to bring back his spirits whereas he could not.

Perhaps the biggest inconsistence in the various versions of their evidence lies in what happened in their house on the night of 27<sup>th</sup> October, 2008.

He told PW 6 that he gave the child (presumably alive) to a rich man. In DE 8, which I am satisfied complies with section 144 of the Evidence Act because he was amply cross examined on important aspects of it. he stated on 29<sup>th</sup> October, 2008 that he:-

"...got a panga and cut off the head of Kasirye while my wife helped me to hold the legs."

In PE 25 on 30<sup>th</sup> October, 2008, he stated as follows:-

"Kato (accused person) and Stephen brought out a black polythene bag sheet. They placed the child on that polythene sheet and cut off his head."

He maintained this same version of events in his oral testimony to court of $18$ <sup>th</sup> April, 2012.

PW 8 in her plain statement DE 9 of 29<sup>th</sup> October, 2008, mentioned two men who came into their compound and later into their house and after drinking soda and the boy passing out she was pushed out of the room and did not see what happened.

On 30<sup>th</sup> October, 2008, in her extra judicial statement, DE 6, PW 8 stated that the accused came alone to their house that night and does not mention the second man.

In her oral testimony to court on 18<sup>th</sup> April, 2012 she told court that the accused and a one Stephen came to their house, pushed her out and later learnt that the child had been murdered. On the basis of these lies and inconsistencies in their evidence, Counsel for the accused person asked court not to rely on the evidence of PW 7 and PW 8.

Prosecution Counsel however asked court to believe the witnesses because PW 7 admitted when he told lies and explained why. Indeed the witness insisted that he lied to the accused about his spirits but it was because he wanted to get money.

He admitted to lying to the people in the village in order to escape the possibility of being lynched. He however denied being a liar.

A critical examination of the evidence of PW 7 and 8 is able to establish some consistency among the lies. There is a design to the lies, one can conclude.

On 28<sup>th</sup> and 29<sup>th</sup> the witnesses denied the murder and later PW 7 took upon himself the guilt of the murder. He stated in DE 8 that he slaughtered the child with the help of his wife.

The wife, PW 8, on the other hand, in all her testimonies she maintained three consistent statements. One is that the child was in their house on the night of 27<sup>th</sup> October, 2008, that they got visitors that night and that she never witnessed the murder of the child because she was pushed out of the sitting room. DE 9, DE 6 and her oral testimony refer.

There are some inconsistencies relating to who exactly pushed her out of the house and which people came to the house prior to the murder but she is consistent that the accused or someone fitting that description was among the people who came to their house.

However the fact that she consistently maintained that she was not in the room when the murder happened lends credence to her testimony. If PW 7 and PW 8 had wanted to frame the accused person, it would have been easier for her to state that she saw him murder the child. She did not.

PW 7 also has consistency regarding the presence of the accused person in his house that night and the taking of the head and private parts by the accused person. In DE 8 he stated:-

"I called Kato Kajubi...we put the head and private parts in a box and put them in the boot of the car..."

The extra judicial statement, PE 25, PW 7 stated as follows:-"...he (accused person) cut off the private parts of the dead boy and put them together with the head."

In his oral testimony he stated:-

"Stephen then slaughtered the child on the accused person's orders. He cut off his head and private parts."

The accused person was therefore squarely put at the scene of crime. Evidence also consistently points to the fact that he was interested in, above everything else, the head and the private parts of the deceased.

All evidence confirmed the fact that the body was discovered without the head and the private parts. Exhibit PE 1, the post mortem report refers.

The testimonies of DW 3, PW 3, PW 4, PW 6, PW 7 and PW 10 confirmed that PW 7 is the one who led them to where the remains of the deceased were dumped.

If he had known where the rest of the body parts had been put it is logical and safe to conclude that he would have led Police and the search party to them.

If he led them to where the body was, why would he not lead them to where the head and private parts were? The answer is that the witness led the investigators to where the parts and head were as best as he could, which is that they were taken by the accused person.

It has already been established that the witness, PW 7 and the accused person, knew each other. The accused person never directly disputed this fact. PW 7 testified that he knew the accused person's places at Gayaza, Masaka, and Makerere, Kikoni in Kampala.

PW 11, PW 12, PW 13 and PW 15 confirm having visited the accused person's homes in those two places and finding his son Michael at Makerere and his aunt Teresa Nantaba at Gayaza.

The witness PW 7 knew the accused person's phone number 0772 700921 and the accused person admitted that the number was his. There was constant communication between that number, 0772 700921, and the witness' number 0773 717631 between 27<sup>th</sup> October, 2008 and 30<sup>th</sup> October, 2008.

The accused person stated, in his unsworn statement, that his phone was forgotten at Ssuna's sauna with Ssuna. I find this incredible and unbelievable. He never reported the loss of his phone or made efforts to pick it up.

I find it easier to believe that the accused person and the witness, PW 7 communicated about the murder using the numbers 0772 700921 and 0773 717631.

Additionally, the witness mentioned that the accused person asked him to meet him at Ssuna's sauna. Ssuna's sauna is prominent in the testimony of the accused person. It is my finding that the two knew Ssuna's sauna well and that it was most likely the accused person who introduced it to PW 7.

As indicated earlier, I have cautioned myself about the nature of evidence of PW 7 and PW 8 against the accused person.

I respectfully disagree with the assessors' advice. It is evident that they did not delve into the intricacies of when, why and to whom PW 7 and 8 lied to.

They did not address themselves to the fact that most of the established facts in this case were in fact provided by the same witnesses. They did not realize that while PW 7 told some lies, he also told a lot of important truths.

I find that there is enough corroborative evidence and enough design in the lies and inconsistencies of their evidence to satisfy me that they told some very vital truths.

It is the truths they told that placed the accused person squarely at the scene of murder and in possession of the deceased child's head and private parts.

Prosecution has therefore proved the case against the accused person beyond reasonable doubt that he played a very key role in the murder of Joseph Kasirye on the night of 27<sup>th</sup> October, 2012.

I accordingly convict him of the offence of murder c/s 188 and 189 of the Penal Code Act.

Dated at Masaka this 26<sup>th</sup> day of July, 2012

## MIKE J. CHIBITA

## **ALLOCUTUS**

**STATE:** I have no previous criminal record. However this offence is rampant in this area. It is saddening that the convict who should have protected the victims turned against them.

I pray for a deterrent sentence. I also pray that the accused person be ordered to compensate the victims.

**DEFENCE:** Convict is a first offender. It is our prayer that court exercises leniency by not meting out the maximum penalty.

He is a young man and therefore pray for a sentence that will reform him. I pray that date spent on remand be borne in mind.

I therefore pray for a reasonable sentence.

**COURT:** I have listened to the pleas for mercy from the defence and I have also heard that he is a first offender. I have decided to exercise leniency and not mete out the maximum sentence.

Prosecution has however submitted that murders and child sacrifice are on the rise and the fact that the accused turned on the very people he was meant to protect and therefore asked for a stiff sentence.

In balancing the prayers of the prosecution and the pleas of the defence, I sentence the convict to LIFE IN PRISON

PANIO Pilits JUSTICE MIKE J. CHIBITA

SENTENCE READ AND DELIVERED IN PRESENCE OF:-

- 1. DEFENCE COUNSEL: FRED KAMUGUNDA, AUSI TWIJUKYE - 2. STATE ATTORNEY: SUSAN OKALANY, JB ASIIMWE - 3. ACCUSED: FRED KAMUGUNDA - 4. COURT CLERK/INTERPRETER: SARAH NAMUGWERE

RIGHT OF APPEAL EXPLAINED

$BC$ BY: $\overline{5}$ MIKE J. CHIBITA

**JUDGE**