Uganda v Mutebi & 2 Others (Criminal Session Case 481 of 2018) [2023] UGHC 479 (29 September 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MUKONO

#### **CRIMINAL SESSION CASE NO. 0481 OF 2018**

UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. MUTEBI KAUBA}

2. NSUBUGA ABUBAKARI ALIAS KAGALA'BANA}

3. BABY MUKASA}:::::::::::::::::::::::::::::::::::

# **BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA** JUDGMENT

The three Accused persons are jointly charged with the offence of Murder contrary to section 188 and 189 of The Penal Code Act. It is alleged that the three Accused persons on the 25th of April 2017 at Ruyanzi Town Village in Buikwe District murdered a one Monday Cobra.

The Prosecution's case against the trio is that, the deceased was employed by Nankwanga Peninnah to heap for her potatoes on the 25th April, 2017 which he did up to around 11.00 a.m. Later on, after his work on the fateful day, the deceased was seen moving together with the Accused persons on a motorcycle to Lugazi Town and came back to Mutebi Kauba's home (A1) and that was the last night the deceased was seen alive. A search for the deceased then started in the Village and the local authority was informed. On the 29th April, 2017 the deceased's body was found hanging on a pine tree about 85-foot paces/85 meters

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approximately from A1's home. Upon discovery of the deceased's body, investigations then ensued and it was revealed that;

- A. The deceased's legs were strongly standing on the ground though there was a rope hanging on his neck as if he had hanged himself. - B. The accused's body parts i.e. penis, 2nd right index finger, toes were cut off.

The body of the deceased was then taken for a postmortem which revealed the cause of death to be spinal injury second to strangulation and the hanging. The report also confirmed the above-mentioned body parts to be missing. The accused persons ran into hiding after discovering the body until 25th May 2017 when A1 was arrested, A2 was arrested on 9th March 2018 on another charge of obtaining money by false pretenses while A3 was arrested on 29th March 2018 on another charge of assault.

After the arrest of each of the Accused person and in the course of the investigations, they individually made a Charge and Caution Statement denying that they participated in the Murder of the Accused persons.

### The burden and Standard of Proof;

The burden of proof in criminal cases is always on the prosecution who is charged with the responsibility to prove each and every ingredient of the offences and generally this burden never shifts to the accused, except where there is a specific statutory provision to the contrary. This was the position in the locus classicus case of **Woolmington vs D. P. P. [1935]** A. C. 462. The standard of proof is proof beyond reasonable doubt. This implies that all the essential ingredients of the offence must to be proved beyond reasonable doubt.

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The standard is achieved if having considered all the evidence, there is no possibility that the accused is innocent. Lord Denning stated in **Miller vs** Minister of Pensions [1947] 2 All E. R. 372 at page 373 to page 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."

#### **Evidence;**

The Court is duty bound to consider evidence of both the Prosecution and the Defence relating to each of the ingredients as a whole before coming to a conclusion. It would offer injustice to the Accused if the Court considers only the Prosecution's evidence in isolation of the evidence presented on behalf of the Accused. In Abdu Ngobi vs Uganda, S. C. Cr. Appeal No. 10 of 1991, the Supreme Court expressed itself as evidence: treatment $of$ with regard to follows, "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, hurden the apply of proof as always resting upon the Prosecution, and decide whether the

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defence has raised a reasonable doubt. If the defence has successfully done so, the Accused must be acquitted; but if the defence has not raised a doubt that the Prosecution case is true and accurate, then the witnesses can be found to have correctly identified the Appellant as the person who the of scene $at$ was the incidents as charged."

#### **Ingredients of the offence of Murder;**

On a charge of Murder, the prosecution has to prove the following essential ingredients:

- 1. That the death of a human being occurred. - 2. That the death was caused unlawfully. - 3. That the death was caused with malice aforethought. - 4. That the accused participated in the crime.

#### **The Evidence in this Case;**

## 1. Whether death of a human being occurred

Court was moved under Section 66 of TIA and parties agreed that the deceased is dead. The postmortem report in respect of the deceased dated 29th April was tendered as part of the agreed facts as Prosecution Exhibit and marked as PE3. PW1 Oire Patrick confirmed to Court that the deceased died and it was alleged as suicided on 25th April, 2017. PW2 Manyi Dominic and the Investigating Officer told Court that the case of alleged murder of Monday Cobra was reported on 25th April, 2017 and he was tipped by the DPC of Lugazi on 29th April 2017 that the deceased's body had been found hanging on a tree and it was suspected that he died of suicide.

#### 2. Whether the death was caused unlawfully

It is a well-established principle of law that every homicide is always unlawful unless accidental or authorized by law. The same position was held in the case of Gusambizi s/o Wesonge Versus Rep. [1948]15EACA 65). The Prosecution contends that this was a homicide. The accused persons on the other hand in their defence generally deny.

In proving this ingredient, the prosecution led evidence of a postmortem report which was admitted and marked as (Prosecution Exhibit PE3). The report revealed the following:

## **External injuries;**

Loss of right index finger at the 2nd phalamo, penile amputation, loss of foot.

#### injuries:

Bruises over the face and the scalp with probable scalp tractions. **Internal injuries:** Spinal injury

Cause of death: the death of the victim was caused as a result of strangulation by hanging related to human sacrifice. PW1 Oire Patrick testified that he went to the scene and on his way there he met a police car while taking the body but, on his arrival, he heard people saying that the deceased's private part had been mutilated from his body. PW2 Manyi Dominic, the investigating officer, testified that when he went to the scene, he found the deceased's body hanging on a tree and suspected that he could have died as result of suicide, he examined the scene, however he ruled out the possibility of suicide because the deceased was

The post-mortem report revealed the following:

#### **External Injuries:**

Loss of right index finger at the 2nd phalamo, penile amputation, loss of foot.

injuries: Bruises over the face and the scalp with probable scalp tractions.

### **Internal injuries:**

Spinal injury and the that the victim died as a result of spinal injury caused by strangulation and hanging related to human sacrifice. In the case of **Uganda Vs Kalimunda John and 2 others Criminal Session No.47** of 2000, it was found that to the post mortem report revealed that the cause of death was strangulation and Court held that Whoever strangled the deceased certainly knew death would result.

In proving malice aforethought further, PW1 Oire Patrick testified that on the fatefully day, baby Mukasa was up and down unsettled with a lot of "wasi wasi". It was again the evidence of PW2 Manyi Dominic the investigating officer that on the fateful day, the victim was seen moving with the three accused persons on a boda went to Lugazi town and came back to A1's home which has a shrine. The body was found near A1's home, it had taken five days since the deceased went missing yet his body was laying next to A1's home, an innocent person would have felt the smell of the decomposing body. The conduct of the Accused persons before after the incident of being unsettled moving up and down with "wasi wasi" moving with the victim to Lugazi Town, and back to A1's home and later disappearing from the village was not that of innocent people.

$\overline{7}$ ingredient of participation of the Accused person in the murder of the victim beyond reasonable doubt.

#### The Defence of the Accused persons

When the Prosecution closed its case, Learned Senior State Attorney Victoria Natenza prayed to court that they had brought sufficient evidence to establish a prima facie case against the Accused person, while Counsel for the Accused person left it at the discretion of court to determine whether a prima facie case had been established. Court informed the opinion that a prima facie case had been established against the Accused persons, their rights were read and explained to them and they were put on their defence. The Accused persons chose to keep quiet and did not call any witnesses.

#### **Conclusion;**

I am satisfied that the evidence of the prosecution, namely, the postmortem report, testimony by PW1 and PW2, and the evidence of the conduct of the Accused before and after the commission of the offence, place the three Accused at the scene as the perpetrators of the crime; and the evidence prove beyond reasonable doubt that it was the Accused persons who killed the deceased with malice aforethought. In agreement with the Gentleman Assessor, I find the three Accused persons guilty of the offence of Murder as indicted and I accordingly convict them. I so order.

**DATED** at **Mukono** this **29**th day of **September 2023.**

Christine Kaahwa **JUDGE**

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# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **CRIMINAL SESSION CASE No. 0481 OF 2018** UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. MUTEBI KAUBA}

### 2. NSUBUGA ABUBAKARI ALIAS KAGALA'BANA}

## 3. BABY MUKASA::::::::::::::::::::::::::::::::::: BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA SENTENCE AND REASONS FOR SENTENCE

While imposing sentence on a convict, the following factors have to be put into consideration. Suffice to not that the maximum punishment for murder under the penal code Act is death. Following the provisions of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 and particularly Paragraph17, the court may pass a sentence of death in exceptional circumstances that being in the "rarest of the rare" cases. The supreme court in the case of Aharikundira v Uganda (Criminal Appeal No. of 2015) [2018] UGSC 49 (3 December 2018) made reference to the case of AG v. Susan Kigula & 417 Ors, Constitutional Appeal No. 3 of 2006, where it was held that death sentence is no longer mandatory and should be imposed only in the rarest of the rare cases.

Paragraph18 of the sentencing guidelines spells out what amounts to the "rarest of the rare" cases and they include cases where—

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- a. the court is satisfied that the commission of the offence was planned or meticulously premeditated and executed; - b. the victim was-- (i) a law enforcement officer or a public officer killed during the performance of his or her functions; or (ii) a person who has given or was likely to give material evidence in court proceedings; - c. the death of the victim was caused by the offender while committing or attempting to commit-- (i) murder; (ii) rape; (iii) defilement; (iv) robbery;(v) kidnapping with intent to murder; (vi) terrorism; or (vii) treason; - d. the commission of the offence was caused by a person or group of persons acting in the execution or furtherance of a common purpose or conspiracy; - e. the victim was killed in order to unlawfully remove any body part of the victim or as a result of the unlawful removal of a body part of the victim; or - f. the victim was killed in the act of human sacrifice.

I have found no extremely grave circumstances that would justify the imposition of the death penalty. Under The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the sentencing starting point for murder is 35 years and the sentencing range is from 30 years' imprisonment up to death sentence, Paragraph 19 provides for the sentencing ranges in capital offences:

The Court shall be guided by the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence;

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In cases where a sentence of death is prescribed as the Maximum sentence for an offence, the court shall, consider the factors in paragraphs 20 and 21 to determine the sentence in accordance with the sentencing range.

Accordingly, Paragraph 20, provides for the considerations which Courts should bear in mind while imposing a sentence of death and before that is done, the court is obligated to look at the mitigating factors under Paragraph 21 of the constitution sentencing guidelines for courts of Judicature.

The second gravest punishment is life imprisonment provided for under paragraph. While determining whether the circumstances of an offence or offender justify imposing a death sentence or imprisonment for life, court shall consider the factors aggravating or mitigating a death sentencee. Import to mention that the sentencing guidelines should to be applied bearing in mind past precedents of courts while deciding similarly. This was mentioned in the case Ninsiima v. Uganda Crim. C. A. Criminal Appeal No. 180 of 2010).

In this matter therefore I have reviewed the following cases, **Uganda v** Anyao & Anor (Criminal Sessions Case 5 of 2017) [2018] UGHCCRD 120 (17 May 2018) where the accused was convicted for the murder of a one Rebecca Akumu aged 72 years, in which the medical report indicated that the deceased was unable to defend herself, her tongue was missing, the private vaginal parts were removed and the neck

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indicated signs of strangulation. After considering the aggravating and mitigating factors, the court imposed a sentence of 26 years' imprisonment. In the case of Kimera Zaveria vs Uganda, Criminal **Appeal No. 427 of 2014, the Court of Appeal substituted a sentence** of life imprisonment with a sentence of 17 years for the offence of murder

Court of Appeal further in the case of Hon. Akbar Hussein Godi Vs **Uganda, Criminal Appeal no. 62/2011**, upheld a sentence of 25 years' imprisonment against the appellant who murdered his wife, again in the case of **Odongo Sam Vs Uganda, Criminal Appeal No. 0088** of 2014, the Court of Appeal upheld a sentence of 19 years' imprisonment for the offence of Murder.

In the instant case, I have to note that parties were directed to file their written submissions and the prosecution was supposed to file by $21^{st}$ July, 2023 while the defence by 28th July, 2023. However, none of them complied and when the matter came up for summing up on $28th$ August, 2023, the parties intimated that the Court should proceed to determine the matter basis the evidence already on record to that end, I accordingly take into consideration the aggravating and mitigating factors in this case. In aggravation Court notes that; a life was lost – the convicts failed to appreciate that life cannot be regained once lost, the convicts murdered the victim, cut off his private parts, toe, index finger, to add salt to that, they then hanged him on a pine tree to make it look like the victim had committed suicide; there is need for the convicts to reform, they therefore need a sentence which will make them rethink their actions and reform and that sentence should send a signal to other would be perpetrators of such crimes.

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In mitigation, this Court notes that the convicts are first offenders; they are young A1 was aged 30 years, A2 was aged 40 years while A3 is aged 20 years by the time of their arrest. They are capable of reforming. In regards to levying a punishment, it is not intended to make the convicts suffer. There was no submission in allocutus since all the convicts chose to keep quiet and also no written submission was made by either party.

Article 23 (8) of the 1995 Constitution of the Republic of Uganda as amended and Regulation 15 (2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, empowers courts to deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account. I observe that the convicts were arrested on different days, A1 was arrested on 26th May, 2017, A2 was arrested on 07.03.2018 while A3 Baby Mukasa was arrested on was arrested on 29th March, 2018.

In the circumstances I find a sentence of 26 years appropriate for the convicts. After deducting the period spent on remand that is 6 years, 03 months & 26 days for A1, 5 years, 6 months & 9 days for A2 & 5 years, 5 months & 22 days. Each of the convict shall thus serve a custodial sentence of 25 years, 8 months & 4 days for A1, 26 years, 5 months & 21 days for A2, 26 years, 06 months & 08 days with effect from today.

The convicts are thus advised that they have a right of Appeal against both conviction and sentence within a period of fourteen days. **DATED** at **Mukono** this **29**th day of **September 2023.**

Christine Kaahwa **JUDGE**

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