Uganda v Mukwaya alias Boy and Another (Criminal Session Case 145 of 2024) [2025] UGHC 113 (26 February 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA H. C. CRIMINAL SESSION CASE NO. 0145 OF 2024

[Arising from Kakumiro Criminal Case No. 514/2023; CRB 756/2023]

#### UGANDA==========================PROSECUTION **VERSUS**

### A1 MUKWAYA JOHN alias BOY A2 BIGABWA DEOGRATIUS=====================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **IUDGMENT**

- The 2 accused persons, Mukwaya John alias Boy and Bigabwa $[1]$ **Deogratious, are indicted with the offence of Murder C/ss 188 & 189 PCA.** It is alleged that on $6/1/2023$ , at Kamarebe Village, Mpeefu Town Council in Kagadi District, the 2 accused persons with malice aforethought caused death of **Byaruhanga Clovis** and **Nyakojjo Richard.** The accused persons pleaded not guilty to the offence. - It is the prosecution case that during the month of June 2023, a one $[2]$ Kasiba Deogratious, the father to the 2 accused persons died and because of the family land wrangles that existed, it was believed that his brother, the deceased **Byaruhanga Clovis** was responsible for his death. Upon the death of his brother **Kasiba**, the deceased **Byaruhanga Clovis** is reported to had made attempts to reconcile the 2 families with proposals that they share the family land in question. - $[3]$ On $6/7/2023$ , the deceased **Byaruhanga Clovis** and his son **Nyakojjo** Richard left for A2's place who together with a one Birungi Vincent had invited the said **Byaruhanga Clovis** to Mpeefu to collect his gift of a cow which A2 had offered him because of the role the deceased played some time back in taking care of the animals. The deceased **Byaruhanga Clovis** is reported to had taken this gesture of **Kasiba's** son, A2 to give him a gift of a cow as a sign of reconciliation to be embraced.

- $[4]$ It is from the time the deceased and his son **Nyakojjo Richard** left for A2's place to collect the cow that they were last seen alive. Their bodies were recovered lying on the road side with their m/cycle they had travelled on, in Kyenzige, at Kiryani, Kagadi - Hoima High way, Kagadi Town Council. The bodies had marks of having been tied and suffocated with ropes. Indeed, the post mortem reported revealed that the 2 deceased persons died of strangulation and not a road accident as the assailants intended the death of the deceased persons to look like, when they dragged the bodies to the road side. The inspection of the $m/cycle$ by the Inspector of Vehicles (I. O. V), revealed that it was not involved in an accident. As a result of the above, police sought for A1 and his brother, A2 and a one Birungi Vincent who is still at large and upon the arrest of $A1$ and $A2$ , they were charged with the instant case. - In his defence, **A1** put up a denial of the involvement in the Murder of $[5]$ the 2 deceased persons and raised an alibi to the effect that he was always at his work place in Mabira Town Council where he carried out repairs of m/cycles and sale of m/cycle spare parts. - A2, a medical practitioner, also denied the prosecution allegations and $[6]$ put forward an alibi to the effect that at the time of the death of the deceased persons, he was in "Kyeitomi", Kyagwe, Mukono to check on his sick child and its mother, his wife by the names of **Kaudha Racheal**. That when he heard of the death of his uncle **Byaruhanga Clovis** from **Haguma** (PW1), he immediately travelled to Kagadi and joined the people at the burial. That he organised the embalment of the 2 bodies and their treatment, the bodies were transported to Kyangwali where they were buried. That after the burial, he returned to his work place at Kamagari, Kobusera Town Council, Kagadi District where $\quad\text{he}\quad$ operated a medical facility by the names of "Palm Medical Clinic". - That it was on $3/3/2024$ , after a year, when he responded to a call for $[7]$ recruitment in security at Kakumiro that was organised for the benefit of the children of liberation veterans that he was arrested at the recruitment centre. A2 presented his wife Kaudha Racheal (DW2) to support his alibi.

- [8] It is trite that the burden of proof in criminal cases is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. The burden never shifts to the defence except in a few exceptions provided for by the law. A conviction is secured on the strength of the prosecution case and not on the weakness of the defence. The prosecution is enjoined to prove all the ingredients of the offence to the required standard; Woolmington vs DPP [1935] A. C 562 and Lubega vs Uganda [1967] E. A 440. - In the case of Murder, the prosecution can only secure a conviction $[9]$ upon proving the following ingredients of the offence: - 1. Death of the person named in the indictment. - 2. That the death was unlawfully caused. - 3. That the death was caused with malice aforethought. - 4. That the accused persons participated in and caused the death of the deceased persons.

See Mukobe vs Uganda, S. C. Crim. Appeal No. 121/1995.

#### Death of the deceased.

[10] Under **S.66 TIA**, the prosecution adduced evidence of 2 post mortem Reports which were admitted as **P. Exhs.1 & 2.** As per the post mortem Reports, the deceased Byaruhanga John Clovis and Nyakojjo Richard died of "Hypoxia" due to manual strangulation in the neck. The bodies were identified by Haguma Matia (PW1), son and brother of the deceased persons respectively. Prosecution witnesses, Haguma Matia (PW1), Omuhereza Kabezire (PW2), Area L. C. I Chairman of the place where the bodies were recovered, D/AIP Chemonges Chebet (PW3) and D. C Mugenyi Kefa (PW4) viewed the 2 bodies from along the road The Post Mortem Reports were where they were recovered. accompanied by photos of the deceased persons (P. Exh.4) taken by **PW4.** The defence did not contest this ingredient of the offence. As a result, I find that the prosecution proved this ingredient of the offence to the required standard, that the death of the two deceased persons, Byaruhanga John Clovis and Nyakojjo Richard occurred.

#### Death was unlawfully caused.

- [11] It is trite that the law presumes every homicide to be unlawful unless it is accidental or authorised by law or excusable, for example, if caused in defence of person or property; Gusambuzi s/o Wesonga vs R [1948] 15 E. A. C. A 65. - [12] In the instant case, there is nothing to show or suggest that the death of the 2 deceased persons fell under the exceptions above. Death arising out of hypoxia due to manual strangulation as disclosed in the 2 post mortem Reports (P. Exhs.1 & 2) is not justified at all and is therefore unlawful. - [13] A2 in his defence developed a narration that the 2 deceased persons died in an accident. However, according to Haguma Matia (PW1), the bodies had marks on the hands and the neck meaning that they were tied with ropes and strangled. Nyakojjo in particular had a flattened skull as if he was hit with a hammer and then, soil was stuck in his mouth which was found inconsistent with an accident occurring on a tarmac road. His evidence was corroborated by the L. C. Chairperson, Omuhereza Kabezire (PW2) who was the first at the scene where the bodies were recovered. He found the bodies and a m/cycle lying on the road side. From his own observations, the bodies could have been dragged to the spot because there was no sign of any blood at the scene. Sgt Mariamungu Michael (PW4) who also visited the spot where the bodies of the 2 deceased persons were lying recovered a nylon rope beside the $m/cycle$ the 2 deceased persons had travelled on. $On$ further examination of the scene, he discovered that this was not an accident case because there were no debris on the road and there were signs of strangulation inconsistent to an accident but consistent with intentional hitting to create an impression of an accident, the front part mudguard and its shock absorbers which are the usual affected parts in a collision accident were intact. D. C. Mugenyi (PW5) concluded that the scene was clean with no blood but the bodies were dirty with cow dung and grass, signs of violence and evidence of strangulation. The m/cycle had been beaten so that it reflects an accident whereas not.

$[14]$ I am satisfied as concluded by the Post mortem reports and the pictures of the bodies (P. Exh.4), that it is evident that the deceased persons occasioned violence and strangulation. A2 did not visit the scene to be believed that the 2 deceased persons died of an accident. I find that death of the deceased persons was unlawfully caused.

### Death was caused with malice aforethought.

- [15] **S.191 PCA** defines malice aforethought as the intentional killing of a human being or knowledge that the act or omission will result into death of a human being, Mugao & Anor vs R [1972] E. A 543. To determine whether or not the prosecution has proved malice aforethought, court considers the following circumstances; nature and number of injuries inflicted, the part of the body injured (whether vulnerable or not) and the type of weapon used, see **Tubere vs R [1945]** 12 E. A. C. A 63. - [16] In the instant case, the Post Mortem Reports (P. Exhs.1 & 2) established the cause of the death of the deceased persons as hypoxia due to manual strangulation on the neck. The neck is one of the vulnerable parts of the body because once strangled, there has to be suffocation which makes death inevitable. It becomes clear therefore that whoever carried out the strangulation must have intended to suffocate the 2 deceased persons to death and indeed, they died. In the premises, I find the $3<sup>rd</sup>$ ingredient of the offence duly proved beyond reasonable doubt by the prosecution.

## Participation of the accused persons in causing the death of the 2 deceased persons.

- [17] This is the last and most important ingredient of the offence considering the fact that the accused persons hotly contested participation in causing the death of the 2 deceased persons. - [18] From the prosecution case, it is clear that no witness witnessed the murder of the 2 deceased persons. The prosecution however relied on the following circumstantial evidence majorly from, **Haguma Matia**

(PW1), son and brother to the 2 deceased persons who testified as follows:

- On around $5/7/2023$ , a one **Birungi Vincent** and **A2** called upon $(a)$ their uncle, the deceased Byaruhanga Clovis for a cow to be collected in Mpeefu in Kagadi where A2 has a kraal as a gift because of how the deceased used to take care of their animals. **A2** had even told **PW1** about the same. On the following day, the deceased Byaruhanga Clovis left with his other son, Nyakojjo **Richard** using a m/cycle, **Nyakojjo** rode. This was the last time they were seen alive. - The families of **Byaruhanga Clovis** and that of his brother, **Kasiba** $(b)$ **Deogratious,** father to **A1** and **A2** had been wrangling over family land left by their deceased father, a one Lubowa Ramanzani and it was thought that the gesture of **Birungi** and **A2** offering their uncle, **Byaruhanga Clovis** a cow was a sign of reconciliation. - When the 2 deceased persons never returned and their phones $(c)$ were off, **PW1** rang **A2** about what could have happened to the 2 A2 told PW1 that the function of giving deceased persons. **Byaruhanga Clovis** a cow was called off and for him, he was in Mubende to pick up his wife. PW1 then called Birungi Vincent who told him that he was in Rwamunje in Kamwenge at a family friend's place but most importantly, that he was not aware of the function of giving Byaruhanga Clovis, a cow. PW1 decided to ring A2's wife to confirm what A2 had told him, the wife of A2 told him that she was not aware of the programmes of her husband, A2 coming to pick her up. - It was later that **PW1**, received a phone call from a one **Kaitwebe** $(d)$ Joseph that his father, Byaruhanga Clovis and Nyakojjo Richard have been found dead lying on the road side in Kyenzige, Kagadi District. Indeed, when he went to the scene, he confirmed the death of the 2 deceased persons. - [19] As clearly pointed out by **PW1**, **A1** does not feature anywhere as one of those who invited Byaruhanga Clovis or lured him for leaving his home for a cow to where he and his son **Nyakojjo** met their death. - [20] As guided in Byaruhanga Fodori vs Uganda S. C. Crim. Appeal No. 18 of 2002 [2005] 1 ULSR 12, court held that:

Page $| 6$ "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 quilt. The court must be sure that there are no other co-existing circumstances which weaken or destroy the inference of guilt. (see also Musoke vs R [1958] E. A. 715".

- [21] In the instant case, as I warned the assessors, I warn myself of the need to treat circumstantial evidence with caution and therefore need to narrowly examine it before it is depended upon for a conviction. In his defence, A2 admitted that indeed, he invited his uncle, Byaruhanga **Clovis** for a cow at his place in Mpeefu. As to why he unilaterally called off the function without informing the deceased person who had to travel to his place to pick the cow, he explained that he got an emergency regarding his sick child in "Kyeitomi" (read as Wantoni) in Mukono and left by the night link bus. - [22] It is the law that once an accused person puts forward an alibi as the accused has done claiming that at the time of the death of the 2 deceased persons he was in Mukono, he does not assume the burden to prove it. His only duty is to account for his whereabouts at the time the offence he was charged with was committed, Moses Bogere & Anor **vs Uganda S. C. Crim. Appeal No. 1 of 1997.** However, if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can lest it be regarded as a mere afterthought, see Uganda vs Aryampa Jackson & Ors Masindi H. C. Crim. Session No. 166 of 2012 and R. vs Sukha & Ors [1939] EACA 145. - [23] In the instant case, during cross examination, **A2** revealed that though he claims that he travelled by night with link bus to Kampala – Mukono to check on his sick child, he stated that he did not have a bus ticket for that journey because it was washed in the pocket and in the same breath, stated that he does not keep tickets. Whereas this statement is understandable and it is not his duty to prove his alibi, he admitted that on the fateful day, he invited **Byaruhanga Clovis** for a discussion regarding the offer of a cow but cancelled the meeting and left for Page $|7$

Kampala. However, when he made his statement to police, he conceded that he never told police that between $5/7/2023$ and $7/7/2023$ which covers the period the deceased persons lost their lives in the hands of assailants, he was in Mukono.

- [24] I find that $A2$ 's alibi was very important especially after he had been arrested as a suspect. If indeed he was in Mukono, he would have really revealed this alibi to police in his statement so that police investigates his alibi regarding being in Mukono at the time. Besides, whereas eh claimed that he was operating a clinic a Palm Medical Clinic at Kamagari in Kobusera Town Board, Kagadi District, his wife Kaudha **Racheal** $(A1/DW2)$ with whom he has a child and is a fellow medical practitioner, resident in Mpeefu, Kagadi District stated that **A2's** clinic, Palm Medical Centre is in Kyenzige, Kyenzige Town Council, Kagadi **District** thus rendering it probable that this **Palm Medical Centre** may not be in existence since as his wife admitted, Kamagari village where A2 stated his clinic is located is in Mpeefu sub-county, Kagadi District which is different from Kyenzige village, where his wife stated is where the clinic is located. - [25] This contradiction between **A2's** evidence and that of his wife, $A2/DW1$ corroborates the prosecution case that A2 was never at his work place, Palm Medical Centre in Kamagari as he claims but was in hiding until his arrest when he came to Kakumiro for recruitment into the army. This explains **A2's** arrest which occurred after about one year from the death of the deceased. Secondly, as a medical practitioner, his insistence on the narration that the 2 deceased persons died of an accident when he did not visit the scene amidst the overwhelming evidence from the 2 Post mortem reports and witnesses who viewed the bodies at the scene where they were recovered render his alibi a mere pack of lies. When **PW1** testified, **A2** never put it to him during cross examination that he attended the funeral of the 2 deceased persons and that he is the one who conducted the embalment of the bodies. I believed the prosecution version of the story as per PW1's evidence that A2 never came for the burial and funeral of his deceased uncle and cousin brother as corroborated by police who upon the recovery of the bodies alongside the road immediately launched a hunt for A2 and Birungi Vincent who were reported to had invited the

deceased, their uncle for a cow and thereafter, went missing with his son, Nyakojio with whom he had travelled with on the m/cycle that was also found lying next to the bodies, I find A2's alibi accordingly discredited, A2 was sufficiently placed on the scene of the crime.

[26] For the above reasons, I find that the available circumstantial evidence is incompatible with the innocence of A2 and incapable of explanation upon any other reasonable hypothesis than that of his guilt. $As a$ result, in agreement with the gentleman and lady assessors, I find that A2 participated in the Murder of the 2 deceased persons, Byaruhanga **Clovis** and **Nyakojjo Richard**. A2 is found guilty of the offence and I convict him of each of the 2 counts of Murder accordingly. A1 who did not participate in the luring of the deceased to leave their home for a cow, stands not guilty of the offences charged and is acquitted forthwith.

Dated at Hoima this 18<sup>th</sup> day of February, 2025.

Byaruhanga Jesse Rugyema Judge

# $26/2/2025$ :

A1 & A2 present.

Ms. Namusobya for state.

Mr. Mutaryebwa for defence.

Ms. Kenyange: clerk.

# Court:

Judgment delivered in open court in the presence of the above.

### Ms. Namusobya:

There is no criminal record regarding the convict. The disposition the accused/convict (A2) exhibited in executing the $plq$ of murdering his uncle and his brother is terrible. It is this uncle who looked after the convict (A2) and educated him. He paid the deceased by subjecting him to a painful and barbaric death.

The offence carries a maximum sentence of death. He participated in the Murder of 2 people, his uncle and his brother. I pray for a deterrent sentence of 50 years for the double murder.

### Mr. Mutaryebwa:

The convict (A2) is a $1^{st}$ offender, aged 27 years and a father of 3 minors from 2 wives. He has been a sole bread winner of his siblings after the death of his father. He is a growing man who can still be useful to the nation. In the premises, we pray that this court spares him of the pain of being in prison for the rest of his time. It is our prayer that he be given a chance to repent by considering a lenient sentence for him.

#### **SENTENCE:**

The accused/convict (A2) is a first offender aged 27 years. He however committed a very heinous offence of the Murder of his uncle and Nyakojjo, his cousin brother. The family of the deceased's persons must have shattered upon the death of the deceased persons in the hands of the convict.

Murder is a very serious offence that carries a maximum sentence of For purposes of uniformity in sentencing I consider the death. authorities of Kyaterekera George vs Uganda, the Court of Appeal in Crim. Appeal No. 113 of 2010 upheld a sentence of 30 years of imprisonment for Murder, Hon. Godi Akbar vs Uganda, the Supreme Court of Uganda in Crim. Appeal No. 3 of 2013 confirmed a 25 years' imprisonment for Murder and Tusingwire Samuel vs Uganda, Court of Appeal, Crim. Appeal No. 110 of 2007, a sentence of life imprisonment was reduced to 30 years' imprisonment for Murder.

In the instant case, the convict murdered 2 people at ago. In the circumstances, I do sentence the accused/convict (A2) to 30 years' imprisonment in **Count I** and **Count II**. Taking into account the 8 months the convict has been on remand, he is to serve 29 years and 4 months for each count. The sentences are to run concurrently. $R/A$ explained.

Sgd: Byaruhanga Jesse Rugyema Judge 26/2/2025