Uganda v Nandawun (Criminal Session Case 302 of 2023) [2024] UGHC 1199 (12 January 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA OF HOIMA AT KYANGWALI

## CRIMINAL SESSION CASE NO.0302 OF 2023

UGANDA ...................................

#### **VERSUS**

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MANDAWUN JOYCE ACCUSED

Before: Hon. Justice Byaruhanga Jesse Rugyema.

### **IUDGMENT**

- The accused Mandawun Joyce was indicted with the offence of Murder $[1]$ C/ss 188 & 189 CPA. It is alleged that on the 2/1/2022 at Walukuba Trading Centre, with malice aforethought, the accused caused the death of **Katusabe Florence**. The accused pleaded not guilty to the offence. - The facts of the case are that on $2/1/2022$ at around 3:00am, the accused $[2]$ and others were out merry making/partying over the new year. Upon return to her place of residence, the accused found her money amounting to Ugx 600,000/= which she had kept in her hand bag placed under the mattress missing. The deceased was the suspect. The accused with others still at large got the deceased, assaulted her and inflicted upon her fatal injuries that marked her demise. The accused in her sworn defence denied participating in the assault of the deceased. That for her, upon discovery of loss of her money, she fell into shock and regained consciousness to find when the deceased had already been assaulted. - In criminal cases, the burden of proof is always on the prosecution to $[3]$ prove its case beyond reasonable doubt. The accused is never convicted on the weaknesses of the defence but on the strength of the prosecution case, See Woolmington Vs DPP [1935] AC 462 and Oketh Okale & Ors Vs R [1965] E. A 555.

- On a charge of murder, the prosecution has to prove the following $[4]$ ingredients of the offence: a) That the death of a human being occurred. b)That the death was caused unlawfully c)That the death was caused with malice aforethought. d)That the accused directly or indirectly participated in the commission of the offence. - As regards the 1<sup>st</sup> ingredient of the offence, under S.66 TIA, the $[5]$ prosecution adduced evidence of a Post Mortem Report of the deceased Katusabe Folrence which was admitted as P. Exh.1. The Post Mortem Report established that the deceased was dead. - D/AIP Ayebazibwe Allan (PW2) who investigated the case, found the $[6]$ body of the deceased lying at Walukuba, Butiaba Health Centre III with physical marks of assault. - From the foregoing, I find that the evidence of the Post Mortem Report $[7]$ (P. Exh. 1) and PW2 who viewed the dead body of the deceased in the Health Centre adduced by the prosecution has proved the $1<sup>st</sup>$ ingredient of the offence to the required standard. The defence itself did not contest the death of the deceased. - As regards the $2^{nd}$ ingredient of the offence, all homicides are declared $[8]$ unlawful in Uganda unless accidental or authorized by law, See Gusambizi S/o Wesonga Vs R [1948] 15 EACA 65. - In the instant case, what is evident is that what occurred was a homicide $[9]$ as there is no evidence that the murder fell within the exceptions of homicides. I find that the $2^{nd}$ ingredient of the offence duly proved by the prosecution to the required standard. - [10] As regards the $3<sup>rd</sup>$ ingredient of the offence, under S.191 PCA, "Malice aforethought shall be deemed to be stablished by evidence providing either of the following circumstances: a) An intention to cause death of any person... b) Knowledge that the act or omission causing death - will probably cause death of some person..."

- [11] The malice forethought is the intention and knowledge to cause the death or that the act or omission causing death will probably cause death is deduced from the circumstances surrounding the killing including the mode of killing, the weapon used, and the part of the body assailed and injured; Nanyonjo Harriet & Anor Vs Uganda, S. C. Crim. Appeal No.24/2002 [2007] UGSC 10. - [12] In the instant case, according to the Post Mortem Report (P. Exh.1), the deceased's body had physical marks of assault on the head, neck, chest, back and abdomen coupled with bruises. She had a fractured base of the skull, rib cage, with evidence of canning. It is the intra cranial bleeding that was established to be the cause of death. What can be deduced from the prosecution and the defence is that the deceased was subjected to mob action. Whoever therefore inflicted the fatal blow on the head of the deceased and fractured the skull must have intended the deceased to die or had knowledge that such a blow would lead to the death of the deceased. - [13] In the premises, I find the 3<sup>rd</sup> ingredient of the offence duly proved to the required standard. - [14] As regards the last and most important ingredient of the offence i.e, whether the accused person directly or indirectly participated in the commission of the offence, the prosecution adduced evidence of only 2 witnesses; Katusabe Scovia (PW1) and D/AIP Ayebazibwe Allan (PW2), the Investigating Officer of the case. - According to PW1, the deceased was her friend while the accused was her $[15]$ village mate. On the morning of $2/1/2022$ at around 3:00am, the accused called her and others out of their beds as they were sleeping to come out and see what had befallen the deceased, their friend. PW1 and others came out of their house only to find the accused having brought the deceased who was in a very bad state. She had been badly assaulted. In the meantime, the accused was boasting of beating the deceased. A boda boda rider was mobilized to take the deceased to the hospital where the deceased died from.

- [16] Upon getting news of the death of the deceased, PW2 went to the scene of crime. The scene of crime a single room that was being occupied by the accused. Both inside and outside the house, there were visible marks of violence. A rope stained with blood believed to have been used to tie the deceased before she met her death was recovered, then a piece of timber also stained with blood was recovered and inside the house, a pillow soaked with blood and curtains that separated the bedroom and the sitting room splashed with blood were also recovered. The above recovered items are reflected on the exhibit police book 19 and search certificate exhibited together as P. Exh.3. - The accused admitted that she was at the scene of the crime when the $[17]$ deceased was badly assaulted but denied participating in the assault of the deceased. That for her, upon discovery of loss of her money, she collapsed into shock and regained consciousness when the deceased had been assaulted and her curtains were splashed with blood. - [18] I am not able to believe the accused's story that the deceased could be assaulted in the presence of the accused when she was unconscious and that therefore, she either had no idea or never participated in the assault. The deceased was fatally assaulted on allegations of loss of the accused person's money amounting to $Ugx 600,000/$ =. She admits that police was near the scene of crime. There is no explanation as to why she never saved the life of the deceased who was the suspect, for example, by dragging her to the area L. C1 Chairperson or calling police upon discovery of loss of her money. - The available circumstantial evidence is such that the accused and others $[19]$ still at large held the law in their hands and in form of a mob, badly assaulted the deceased while inside the house of the accused upon which she sustained fatal injuries that led to her demise. Instead of taking the deceased to police, if at all the deceased had been involved in the breaking into the accused's house as she alleged. The accused instead walked the deceased to PW1's place and in the process wasted time to save her life. If it were true that the deceased was mobbed to death without her knowledge and or instructions, one would have expected her instead of walking the deceased to PW1's place, seek help and take the deceased to the hospital for immediate medical attention and probably

- save her life since it was visibly evident that the deceased had been badly assaulted. - [20] I find that inculpatory facts are inconsistent with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. There are no other co-existing circumstances pointing to otherwise other than the accused as the culprit, Musoke Vs R [1958] EA 715. The honourable assessors returned an opinion of innocence. I do not see however, the basis of believing the accused's claim that the deceased was badly assaulted while for her, was in a state of unconsciousness. I find sufficient evidence beyond reasonable doubt that the accused person participated in the fatal assault of the deceased. In disagreement with the honourable assessors, I find the accused guilty of the offence of murder and I convict her accordingly.

# Dated this 12<sup>th</sup> day of January 2024

# Byaruhanga Jesse Rugyema

### **JUDGE**

Later court as before

### State:

No previous criminal record of the convict. The offence was committed under painful circumstances. The accused ought to have made use of police other than shed blood. The convict deserves a custodial sentence of 30 years imprisonment.

### **Accused:**

I had come to my paternal uncle because my in laws denied school fees for my children. One was going to the university. I am a widow. I pray for leniency.

### Mushabe:

The convict has 4 children who are in Parombo, Nebbi in the hands of their uncle who also passed on. The accused has been on remand for a period of 2 years and 7 days. We pray for leniency.

### **SENTENCE**

- The accused person/convict is a $1^{st}$ offender but she committed a very $[1]$ serious offence of murder that carries a maximum sentence of death. - It is apparent that the deceased was murdered for loss of a mere $\mathbf{U}\mathbf{g}\mathbf{x}$ $[2]$ $600,000/$ =. This is not worth the life of a human being, the victim who at the time was aged 21 years. The accused caused the death of the deceased in an arrogant manner. She deserves a deterrent sentence that will send a signal to the other would be offenders, the accused person and others still at large. The deceased met a painful death in the hands of the mob. - In the premises, I do sentence the accused/convict to 30 years term of $[3]$ imprisonment. Considering the fact that she has been on remand for a period of 2 years, she shall serve a sentence of 28 years imprisonment.

Signed

Byaruhanga Jesse Reugyema **IUDGE**