Uganda v Oola & 2 Others (Criminal Session Case 366 of 2021) [2024] UGHC 670 (16 July 2024)

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

### CRIMINAL SESSION CASE NO. HCT-02-CR-SC- 0366 OF 2021

$5$

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

#### **VERSUS**

A1. OOLA PETER A2. ODONG PATRICK OKOT A4. OKUMU CHARLES....................................

#### BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### JUDGMENT

#### Introduction

The accused persons are indicted with the offence of murder contrary to section 188 and 189 of the Penal Code Act Cap 120 (PCA). It is alleged that 30 the trio together with Opiyo Sam (who has since been convicted and sentenced on plea bargaining arrangement) and others at large, on 5<sup>th</sup> July, 2021 at Abuga Village, Abuga Sub-County in Omoro District, with malice aforethought, unlawfully murdered Okello David. Each accused 35 person pleaded not guilty. The prosecution and the Defence agreed on facts and documents. This court drew a memorandum of agreed facts. Court admitted and marked agreed documents pursuant to section 66 of the Trial on Indictment Act Cap 23 (TIA). The memorandum was signed by

HUADOw.

each accused person, their counsel, and State counsel. Court proceeded $5$ to appoint two assessors inline with section 67 of the TIA on complying with the Assessors Rules. Both the defence and the State were not objectionable to the choice of the assessors. The assessors took oath and attended the entire proceedings.

The accused persons were initially represented by learned counsel Mr. Douglas Okot Odyek on State Brief but at the resumed trial in the current criminal session, learned counsel Ms. Barbra Beatrice Angufiru, and Mr. Samuel Openy represented them on State Brief. For the Prosecution, learned Ms. Sarah Amony, Chief State Attorney, prosecuted the matter. At $15$ the close of the Defence case, both sides submitted orally, with the Defence opening the address and the Prosecution responding.

To prove its case, five prosecution witnesses were called. Having found a prima facie case against each accused person pursuant to section 73 (1) 20 of the TIA, I put each accused person to his defence and explained to each the options available under sub section (2) of s.73 of the TIA on how each could defend himself. All the accused persons initially chose to give evidence on oath. They later changed their minds and opted to make unsworn statement. They called one witness who testified for all. 25

ALADON.

$\overline{2}$

$\mathsf{S}$ Before I summarize the gist of the Prosecution and the Defence case, I proceed to state the ingredients of murder and some key legal principles by which I shall be guided.

The ingredients of murder are;

- $10$ $i)$ Death of a human being occurred - ii) The death was caused by an unlawful act - iii) The unlawful act was actuated by malice aforethought - $iv)$ It is the accused who caused the unlawful death. - 15 Given their plea of not guilty it means each accused person denies the allegations made against him. Each, therefore, enjoy the constitutional presumption of innocence as per article $28$ (3) (a) of the Constitution of Uganda, 1995. By their plea of not guilty, it also means the prosecution bears the burden of proving the guilt of each accused person beyond reasonable doubt. Each accused put in issue all the allegations made 20 against them making it the duty of the prosecution to prove those facts in issue as per section 4 of the Evidence Act Cap 6. See: Jackline Uwera Nsenga Vs. Uganda, Criminal Appeal No. 0824 of 2015 (COA). The burden of proof never shifts to the accused person except where insanity 25 is raised, and only in few statutory exceptions especially in cases of a strict liability nature which are not relevant here. See: Woolmington Vs.

Husselm.

# $5$ Director of Public Prosecutions [1935] A. C 462; Chan Kau Vs. R [1955] A. C 206; and Uganda Vs. Dick Ojok (1992-93) HCB 54.

The Prosecution, therefore, has the duty of proving each ingredient of murder against each accused person beyond reasonable doubt. This does not of course mean the case must be proved beyond a shadow of doubt. 10 The degree of proof need not reach certainty as court could end up considering fanciful possibilities that could deflect the course of justice. What, therefore, is required is strong evidence against each accused person that leaves only a remote possibility in his favour. Therefore, if court finds on the evidence adduced that what a person is accused of is 15 possible and not in the least probable, then the standard of proof will have been met. Nothing short of that will suffice. This view was expressed by Lord Denning in the locus classicus case of Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374 which continues to apply to-20 date. Therefore, an accused person does not assume any burden of proof, a position supported by section $101(2)$ and section $103$ of the Evidence Act Cap (supra). The burden always is on the prosecution. See: Mahyara S/O Malakoni Vs. Reg. (1955) 22 EACA 502. Where there is any doubt in the prosecution case, the accused takes the benefit of the doubt. Any defence, even if not raised by an accused, if there is evidence of it, must 25 be availed to the accused person. See: **Abdu Ngobi Vs. Uganda, SC. Crim.** Appeal No. 10 of 1991; Obwalatum Francis Vs. Uganda, SC Crim.

Hudoden

$\overline{4}$

Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi $5$ Vs. Uganda (1978) HCB 216. An accused person can, therefore, only be convicted on the strength of the prosecution case and not because of the weakness of his defence as noted in **Ssekitoleko Vs. Uganda**, [1967] EA 531. Therefore, even if an accused person decides not to adduce any evidence, the court must still, at the end of the case, ask itself whether the 10 legal burden has been discharged. That is, whether the Prosecution has proved the guilt of the accused person beyond reasonable doubt. In a criminal case, all matters must be strictly proved. The State cannot, for instance, solely rely on concessions made by the accused person as was 15 stated in the case of FW Crowie Vs. R [1961] 1 EA 38 (CAN). Thus at the end of the day the court has to evaluate all items of evidence on record, that is, both the prosecution evidence and the defence, if any. This was underscored in the case of Abdu Ngobi Vs. Uganda, S. C Crim. Appeal **No. 10 of 1991** by the Supreme Court of Uganda thus:

"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. If the defence has successfully done so,

$5$

H4AODur!

- $5$ 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 was at the scene of the incidents as charged." - 10 In the case before me, the Prosecution sought to prove that A1 Oola Peter who was at the material time the Chairman Local Council 1 (LCI) of Abuga Village, on 5<sup>th</sup> July, 2021, directed some youth to pick the deceased Okello David from Lacor Trading Centre and bring to the home A1. It was alleged that the deceased had stolen curtain from the house of a one Tute Olanya. - The deceased and a one Ojok Patrick alias Bici-Bici *aka* Opic/Obic were 15 suspected thieves who were alleged to have terrorized Abuga/Otelkero Village. Having been taken to the home of A1, A1 is alleged to have ordered for the beating of the deceased and Ojok Patrick. It is alleged that A2 Odong Patrick Okot, and A4 Okumu Charles, participated in the assault of the 20 deceased and his co-suspect. A2 is alleged to have cut the sticks that he, A4 and others, used to assault the deceased. A2 is further alleged to have hit the deceased with a hoe handle on the back. Another Assailant not charged with the offence is alleged to have lit a jerycan and released burning drops on the body of the deceased while a one Tute Olanya is 25 alleged to have lashed at the deceased with an ox plough chain. Many other assailants are named, all totaling to ten. The assault is alleged to have happened at the home of A1 under his watch and on his orders. While

Hedoluw.

- $\mathsf{S}$ some prosecution witnesses believe the deceased died at the home of A1, the Investigating Officer stated that, according to the mother of the deceased, he was carried unconscious and died shortly on arrival at his parents' home. - 10 In his Defense, A1 Oola Peter first denied that the deceased was beaten at his home but later conceded the deceased was assaulted but he denies ordering the assault. A1 stated that whereas A2 and A4 were among the crowd that turned up at his home, A2 and A4 never beat the deceased. In their defences, A2 and A4 agreed with A1 thus denying assaulting the 15 deceased. A2 also denied cutting the sticks with which the deceased was assaulted. He further denied hitting the deceased with a hoe handle. Both A2 and A4 raised an alibi that at the time the deceased was taken to A1's home, A2 and A4 had already left that home. Both A2 and A4 further raised the aspect of grudge against them by some prosecution witnesses. The defence witness DW4 who is a step daughter of A1 supported the accused 20 persons.

Having set out the substance of the evidence on record, I proceed to consider the specific items of evidence as relevant to each ingredient of the offence of murder.

HLADDW.

$\overline{7}$

#### Death of a human being. $\mathsf{S}$

Death of a human being can be proved by oral and medical evidence. Persons who knew the deceased can affirm that he died. Medical evidence in the form of a post-mortem report can also prove death. In the instant case, the death of Okello David is not in dispute. It is an agreed fact. PW1

- Akello Margaret, PW2 Abalo Nighty, PW3 Ochora Walter, and PW4 Ochan 10 Santo all confirmed that Okello David died on 5<sup>th</sup> July, 2021. The Accused persons have not contested death, and so did their witness DW4 Langom Bibiana. The deceased's body was examined by Dr. Olwedo Onen on 7<sup>th</sup> July, 2021 from Gulu Hospital Mortuary. Det. AIP Afemia Alex (PW5 now - IP) saw the body at the home of the deceased' parents and took it to the 15 Mortuary. Aguru Agnes the mother of the deceased, identified the body. The deceased was of the apparent age of 16. The post-mortem report was admitted in evidence and marked PEX1. Accordingly, I find that the prosecution has proved beyond reasonable doubt that Okello David died.

## The death was unlawfully caused.

The law is that all deaths otherwise called homicide are legally presumed to be unlawfully caused unless it was accidental or authorized by law. This was stated in **Gusambizi s/o Wesonga Vs. Republic [1948] 15 EACA 65**. In the instant case, the post-mortem report shows that the deceased suffered external and internal injuries. External injuries were summarized

as generalized extensive bruises on both upper and lower limbs, abdomen,

Hudodur.

$5$ chest, back, face, and swelling of the right temporal scalp. Internal injuries were described as sub-cutaneous chest hematoma, collapsed lungs, subcutaneous right temporal parietal scalp hematoma, oedematous brain tissues, dilated dametire blood vessel and temporal. The cause of death was stated as occipital scalp hematoma, severe brain tissue damage with oedematous brain tissues and subdural hematoma due to severe blunt 10 force head trauma following assault. PW1, PW2 and PW3 testified that the deceased was assaulted on the whole body. The medical report is consistent with the assault and reached the same conclusion. Both the Defence and the Prosecution agree that the death of Okello David was unlawfully caused. I find that the death was neither accidental nor lawfully 15 caused. Accordingly, I hold that the prosecution has proved this ingredient of murder beyond reasonable doubt.

#### **Malice aforethought**

20 Malice aforethought is the intention to cause death of a person or knowledge by the person that his act will probably cause death. This is the import of section 191 (a) and (b) of the Penal Code Act Cap, 120. Thus being a state of mind, intention is difficult to prove through direct evidence. Courts have, however, developed principles that guide it in determining whether or not there was malice aforethought. Courts consider whether a 25 deadly weapon was used; the manner in which the weapon was used to inflict the injuries; whether a vulnerable part of the body was targeted;

HUADdum. whether the weapon was used in a ferocious manner that is, the nature of $5$ the blow; and the conduct of the accused person before and after the act. These guidelines were laid down in R Vs. Tubere s/o Ochieng [1945] **EACA 63.** Malice aforethought can, therefore, be proved through circumstantial evidence or medical evidence such as postmortem report. Regarding postmortem findings, courts have held that a postmortem 10 contains findings as to the state of the body, injuries found on it, and an opinion as to the cause of death. It is thus not capable by itself of proving malice aforethought, the existence of which is not a question of opinion but of fact to be determined from all available evidence. Thus the test that malice aforethought can be inferred from part of the body inflicted by an 15 unlawful act is more restricted to cases where a weapon has been used to commit a homicide. Thus it is important that the weapon used to cause death be described to the Doctor carrying the postmortem or be observed by the Doctor for him/her to be able to state the effect of the weapon on 20 the deceased in causing the injuries. This, therefore, guides court in estimating the *mens rea* of the accused. See: **Francis Coke Vs. Uganda** (1992-1993) HCB 43; Jospeh Rujumba Vs. Uganda (1992-1993) HCB 36; Nandudu Grace & another Vs. Uganda, Criminal Appeal No.04 of **2009 (SCU).** It has, however, also been held that there is no burden on the prosecution to prove the nature of the weapon used in inflicting the harm 25 which caused death nor is there an obligation to prove how the instrument was obtained or applied in inflicting the harm. See: **Kooky Sharma &**

Herody.

$5$ another Vs. Uganda, Civil Appeal No. 44 of 2000 (SCU) where the Supreme Court applied the case of Mungai Vs. Republic [1965] E. A. 782 at p. 787 with approval.

In the instant case, although Dr. Olwedo indicated that the injuries 10 followed assault, and although it has not been shown that the weapons that caused the injuries were described to the Doctor or that he saw them, eye witnesses especially PW1, PW2 and PW3 consistently stated that sticks, hoe-handle, and ox plough chains, among other weapons, were used to assault the deceased. The sticks were used repeatedly. The findings in the Postmortem (PEX1) are consistent with the assault. Dr. 15 Olwedo who filled PEX1 noted multiple injuries on the head, chest, and abdomen of the deceased. These are delicate parts targeted by the deadly weapons. The deceased suffered collapsed lungs, and injuries of the brain tissues. PW5 stated that the body had multiple injuries all over, including 20 the face and the back. I hold that the prosecution has proved the ingredient of malice aforethought beyond reasonable doubt. The defence conceded this ingredient. Therefore, whoever caused the death of Okello David had malice aforethought.

## 25 Participation of the accused persons

Proof of participation can be by either direct or circumstantial evidence placing each of the accused person at the scene of the crime not as a mere

HLAODIN.

spectator but as a perpetrator. In the instant case, participation of each $5$ accused person is contested by the Defence. I proceed to consider the evidence adduced by the prosecution and the defence in turn.

PW1 Akello Margaret stated that on 5<sup>th</sup> July, 2021 after garden work, she 10 went to the main road where she found a crowd of people. They were saying a thief had been arrested and taken to the home of A1. PW1 went to the home of A1. She found persons beating Opic/Obic (nickname) a suspected thief. While there, A2 cut sticks that were used to beat Opic/Obic. A4 also beat Opic/Obic. A1 was ordering that Opic/Obic be beaten hard. According to PW1, A1, A2 and A4 are all village-mates with the witness 15 while A1 doubles as Chairman LCI. Later, three boys were sent by A1 to go and fetch Okello David (the deceased) from Lacor Trading Centre. The deceased was brought by the boys to the home of A1. He was healthy. Ojoko son of Mali tied the hands of the deceased. A1 ordered the boys who 20 were present and were about 10 in number to beat the deceased. Those who beat the deceased are A4, A2, Sam, Tute, Collin, Ojoko s/o Mali (son of), Kalinya s/o Mali, Odoch s/o Onono, Malaba s/o Onono, and Ojoko s/o Beja. A4 picked a hoe-handle and hit the back of the deceased. A4 then threw down the hoe-handle and beat the deceased with a stick. A4 and A2 beat the whole body of the deceased. He was beaten from about 5 to 7pm. 25 Tute used ox-plough chain to beat the deceased while Malaba used wire lock. A1 ordered that "the son of Aguru should be beaten till death",

HhAvew.

referring to the deceased. The deceased became unconscious. He was $\mathsf{S}$ scalded with burning plastic jerycan by Ojoko s/o Mali. The deceased did not feel the pain from the burning jerycan. At 7:00pm, Tute started burning the ear of the deceased with cigarette lighter. The deceased did not react. A1 then ordered that the deceased be carried to his parents' home to die. A1's wife Laker Marilyn also made the same statement. The $10$ deceased was carried to his parents' home at about 7: 30pm by Ochora s/o Olok, Ojara, Ojok, and a fourth person whom PW1 could not recall. In cross examination, PW1 denied holding any grudge against any of the accused persons. She affirmed that A2 is her step brother (different 15 mothers).

PW2 Abalo Nighty stated that A1 was the LCI Chairman of Otelkero village. A2's father is related to the witness. A4 was the land chief (Rwot Kweri). The accused persons are all village-mates with PW2. On 5<sup>th</sup> July, 2021, at about 1:30pm, PW2 was picked from her garden by Ojok who said A1 had sent for her. PW2 went to A1's home. While there, A2 cut sticks for beating Ojok Patrick (alias Bici-Bici or Obic). Ojok Patrick is the grandson of PW2. Small sticks were inserted in between the fingers of Ojok and was being beaten. His assault went on from 1 to about 7pm. Ojok did not die. A bodaboda man then brought the deceased to the home of A1 when the deceased was in perfect condition. The deceased was beaten from A1's home from about 4 to 7pm. A1 gave orders that the deceased be beaten. A2 cut the

Hapodun.

$5$ sticks used for beating the deceased. A2 also beat the deceased. A4 beat the deceased with a hoe handle. Tute Olanya also assaulted the deceased using ox plough chain. PW2 went on to name other persons who also assaulted the deceased. According to PW2, A1 asserted that "people are tired of Okello David. He should be beaten to death so that the community can have peace." 10

PW3 Ochora Walter clarified that Otelkero and Abuga villages are one and the same. Initially the whole place was Abuga but it was later divided to create Otelkero Village and A1 is the Chairman LCI. PW3 described A2 and A4 as village-mates but A4 doubles as Rwot Kweri. While at his home on 15 5<sup>th</sup> July, 2021, Ochan Santo the brother of PW3 called PW3 saying two thieves had been arrested and taken to the home of A1. PW3 went to the home of A1 at about 4pm. He found Okello David (deceased) and Ojok Patrick alias Obic being beaten. A4 and others beat the deceased. A2 cut 20 the sticks and gave to other people to beat the deceased and Ojok Patrick. A2 also beat the deceased and Ojok Patrick. This Court notes that somewhere in his evidence, PW3 claims it was at 5pm when A1 instructed Ojok s/o Beja and Tute to fetch the deceased from Lacor Trading Centre. PW3 later stated that the deceased was brought to A1's home at a time 25 PW3 could not recall yet at the same time he says he found the beating was already happening when he went to A1's home at 4pm. Court shall comment on the issue of time of the beating, in its analysis. According to

HLADDOW.

$\mathsf{S}$ PW3, immediately the deceased arrived A1's home, the wife of A1 Marilyn Laker said the deceased should be beaten as the community was tired of them because of theft. A2, A4 and others such as Ojoko, Kalinya, Malaba, Sam, plus persons whom PW3 could not recall, beat the deceased. A1 did not beat but instructed the deceased to be beaten. A2 beat the deceased with a stick on the whole body while A4 used a hoe handle to hit the 10 deceased on the back. The deceased lost consciousness at about 7pm. Later A1 ordered the deceased to be removed and taken to his parents' home. PW3, Ojok, Ojara, and Awanye, carried the deceased to his parents' home.

PW4 Ochan Santo stated that A1 is Chairman LCI of Otelkero village, while A2 and A4 are village mates. A4 doubles as Rwot Kweri in the Southern part of Otelkero. PW4 was at Lacor area on 5<sup>th</sup> July, 2021 and on returning home at about 5pm, his wife informed him that Okello David (the deceased) 20 had been arrested and taken to the home of A1. PW4 rushed to A1's home at 5:30pm. He found when the deceased had been beaten and the whole body was swollen. The hands were tied and between the fingers, short sticks were put. The legs were tied together. A jerycan was lit and drops released on the body of the deceased by Tute Olanya. The deceased did not 25 react to the burns. A1 was seated and watching. A1 told his askaris to beat the deceased so that he tells the truth. Ojok Patrick alias Bici-Bici was another suspected thief who was with the deceased. At the time PW4 was

HLADOW.

at the home of A1, A2 and A4 were also at A1's home. PW4 did not see A2 $5$ and A4 do anything to the deceased. However, A2 and A4 had sticks in their hands at the time PW4 arrived. A1 ordered the deceased to be untied so that he could go home. Joka, a cousin of the deceased carried him home. The deceased looked unconscious as he was being carried away.

A1 testified as DW1, A2 testified as DW2, and A4 as DW3, while their common witness Langom Bibiana testified as DW4. For consistency, I will refer to the accused persons as A1, A2 and A4, respectively. I will, however, refer to their common witness as DW4.

Each accused person gave unsworn statement. A1 stated that he was the LCI Chairman of Abuga Village since 2001. He received a telephone call from the father of the deceased (Otema Alfred) on $2^{nd}$ July, 2021. Otema said he had arrested Okello David (Son/ deceased) and Ojok Patrick who had stolen a box of soap and Lato milk. The boys admitted the theft to Mr. 20 Otema. Otema requested A1 to bring the boys before the community so that Otema could warn them to stop stealing. On 3<sup>rd</sup> July, 2021, Otema again told A1 that the deceased had stolen things from the house of Tute Olanya and had not been arrested. On 4<sup>th</sup> July, 2021, A1 sent his Defense Secretary to hunt for the suspects from their hideout. The Secretary 25 reported that they were hiding within Lacor Centre. On 5<sup>th</sup> July, 2021 A1 wrote a letter to the Chairman of Lacor Centre which was taken by the

Hansolwi

$\mathsf{S}$ Defense Secretary to hand over the suspects to A1. The Chairman only found Ojok Patrick. Ojok was arrested by four boys sent by A1 and taken to A1's home at 11:00am. Ojok Patrick confessed to stealing curtain from Tute's house. He confessed to stealing with the deceased. They had sold curtain to a lady who operates hotel business. A1 sent four boys who found the deceased at the hotel of the lady. Two ladies were present. The $10$ deceased was taken to A1's home at 2:30pm together with the two ladies. The crowd surged at A1's home. A1 alerted the father of the deceased (Otema Alfred). The father said he was far away and asked A1 to ask the crowd that the matter be rescheduled to the next day (6<sup>th</sup> July, 2021). A1 15 dispersed the crowd at 3:30pm. A1 then moved to attend a meeting at the home of Ojok Santo. While there, Aguru the mother of the deceased telephoned A1 saying Boda-Boda men wanted to rob her home to recover transport expenses. Aguru sought guidance. A1 told Aguru that since the Local Council Meeting had not been concluded, he would advise that everybody (including Boda-Boda men seeking their expenses) return the 20 next day. According to A1, later at 7:30pm (5<sup>th</sup> July, 2021) the mother of the deceased (Aguru) called A1 saying the deceased was dead. A1 denies the allegation that he ordered the beating of the deceased. Court notes that towards the end of his testimony, A1 agreed that while the deceased was 25 at Al's home and while Al was having discussions, he heard people shouting "leave him, leave him." Tute was beating the deceased with ox plough chain. Regarding the allegation that A2 and A4 beat the deceased,

HeAodur.

- A1 stated that A2 and A4 did not beat the deceased but only beat Ojok $\mathsf{S}$ Patrick. A1 denies seeing the deceased being scalded with burning jerycan. He says the jerycan was only lit. A1 later stated that the scalding of the deceased was happening behind a tree within the compound of A1. - 10 A2 Odong Patrick Okot stated that on 5<sup>th</sup> July, 2021, between midday to 1 pm, while resting at his house, his mother informed him that she had seen people moving in droves towards the home of A1 saying a thief had been arrested. A2 went to A1's home to check. A2 found several persons at the home of A1. He saw PW1 and PW2 among the crowd. Ojok Patrick was tied upside down on a mango tree and was being beaten. It was about 15 1-2pm. PW2 was begging Ojok Patrick, a grandson, to tell the truth so that people might stop beating him. A2 restrained Ojok s/o Magi from lighting a jerycan to scald Ojok Patrick. A2 then left the scene at 3:00pm and went home. A4 arrived at the home of A1 at 2pm and went away after only 4 to 20 six minutes. Tute beat Ojok Patrick with a chain that looked like ox plough chain. By then the deceased was not yet brought to the scene. A2 never saw the deceased (Okello David) at the scene. He never beat him. A1 was present at home. A2 also never beat Ojok Patrick. A2 never cut the sticks and never distributed sticks to the assailants. According to A2, his stepsister PW1 (Akello Margaret) trespassed on A2's land. There was a case at 25 Sub County before mediation team. A2 lodged the case in 2019 and it was concluded in 2020. PW2 did not vacate the land. A2 reported to LCII Court

 in 2021 and PW1 and Onencan Charles, a brother, were ordered to vacate $\overline{5}$ the land. They did not appeal. The decision was made in a month A2 could not recall. The Ruling is at home. PW2 (Abalo Nighty) was a witness for PW1 in the LCII court so both had a grudge. Regarding PW3 (Ochora Walter) who said A2 beat the deceased, A2 says he never saw PW3 at the 10 scene.

A4 Okumu Charles stated that on 5<sup>th</sup> July, 2021, at about 1-2pm, he went to a near-by shop to buy sugar. He found people who were conversing that a suspected thief had been taken to the home of A1. A4 decided to go to the home of A1. A1 was at home and a crowd had gathered. It was 2pm. 15 A1 gave A4 another assignment away from the area. Before A4 could go, he was interested in seeing the suspects. A4 saw Ojok Patrick. A4 saw Opiyo Sam with a stick (the convict). A4 told Opiyo not to beat Ojok Patrick. Simon Ojok had a small jerycan in hand. A4 did not see anyone beat or 20 scald Ojok Patrick. A4 went away to the home of Santo Ojok to resolve a land boundary dispute among the children of Ojok Santo. He left the scene at about 2: 04pm. As far as the testimony against him by PW4 Ochan Santo is concerned, A4 stated that PW4 did not want A4 to be Rwot-Kweri (land chief). A4 was elected Rwot Kweri in 2020. PW4 had expressed interest together with Ojok Martin for the same position. According to A4,

25 PW3 is a brother of PW4 (Ochan Santo) and so court should not believe PW3 (Ochora Walter). A4 never saw A2 (co-accused) at the scene on 5<sup>th</sup>

HADDW.

$\mathsf{S}$ July, 2021. A4 also never saw the deceased at the scene. He did not see anybody beat the deceased. It was only Opiyo Sam who was merely holding a stick.

DW4 Langom Bibiana is a step daughter of A1. She testified that on 5<sup>th</sup> 10 July, 2021, she saw Obinya being brought to the home of A1 on allegation of theft. Ojok Simon tied the legs of Obinya. He put short sticks in between the fingers and toes of Obinya. Ojok Simon beat the sticks in between the fingers and toes of Obinya. A1 was at home. As Obinya was being beaten, the deceased had not yet been brought at the scene. The deceased was 15 brought at A1's home when people had finished beating Obinya. He was brought between 4:30 to 5pm. A1 was at home. Both A2 and A4 were not at the home of A1 when the deceased was brought. The deceased was beaten on the buttocks. It was Collin, Ojok Nelson, Okello Denis, Ojok Simon, and Olanya Sunday alias Tute who beat the deceased. Okello Denis 20 kicked the deceased on the head with a gumboot. Tute burnt the ears with cigarette lighter. Tute also used ox plough chain to beat the deceased. DW4 mentions other assailants. A1 tried to stop people from assaulting the deceased at about 5:30 pm but a chair was thrown at him. A1 dodged the chair. In cross examination, DW4 stated that the deceased was beaten from about 5-5:30pm. A1 inherited DW4's mother- Marilyn Laker on the 25 death of her father, and A1 has looked after her from young age. DW4 was

Hudoom.

coming from A1's home to testify. At the scene, PW1 and PW2 were among $\mathsf{S}$ those present.

## **Analysis**

Having reviewed the relevant aspects of the evidence as a whole, and the submission, it is clear that the prosecution case is anchored in the 10 doctrine of common intention to do an unlawful act which caused death. The allegation is that A1 gave orders on which A2 and A4 and other assailants acted to assault the deceased to death. I also think the trio were charged on the basis of section 19 (1) of the PCA (supra). The section provides that when an offence is committed, each of the following persons 15 is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it- (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the 20 purposes of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence. Section 19 (1) PCA was considered in the case of **Uganda Vs. Ochir** Benson, Criminal Sessions Case No. 0144 of 2015 by Mubiru, J. Court observed that under section 19 there are different modes of participation in crime, namely, direct perpetrators, joint perpetrators under a common 25 concerted plan, accessories before the fact, etc. It also noted that each mode of participation may, independently, give rise to criminal

Haradus.

$5$ responsibility. Court reasoned that if the accused was only aware of the criminal intent of the mob and gave it substantial assistance, or encouragement in the commission of the crime then he was only an aider and abettor but if he shared the intent of the mob, then he is criminally responsible both as a co-perpetrator and as an aider and abettor. It concluded that it was shown that the accused's participation substantially $10$ contributed to, or had a substantial effect on the consummation of the crime and that under section 19 (1) (b) and (c) of the PCA, the accused person was deemed to have taken part in committing the offence and to be guilty of the offence.

The doctrine of common intention is provided for in section 20 of the PCA. Section 20 provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the 20 prosecution of that purpose, each of them is deemed to have committed the offence. The equivalent section 20 PCA was interpreted in the case of Isingoma Vs. Uganda [1986-1989] 1 E. A. 155 (SCU) by the Supreme Court (Wambuzi CJ, Lubogo Ag JSC, and Oder, JSC). At the time, it was 25 section 22 of the Penal Code Act applicable then. The court noted that the section is in *pari materia* with section 21 of the Kenyan Penal Code which was interpreted in the case of **Solomon Mungai & Others Vs. Republic**

Gardolan.

5 [1965] E. A. 782. The Supreme Court adopted the interpretation in *Solomon Mungai & others Vs. Republic* (supra) where it was said, inter alia:

$\degree$ ... in order to make the section applicable it must be shown that the accused shared with the actual perpetrators of the crime a $10$ common intention to pursue a specific unlawful purpose (that) led to the commission of the offence charged... we think that if there is sufficient evidence from which it can be inferred that some instrument or lethal weapon had been used, or violence of any degree had been used in the prosecution of an unlawful common 15 design resulting in death, then if the offence charged was probable consequence of the use of that violence, all those proved to have shared in the common design would be responsible for the killing that ensued."

20 The Supreme Court noted that the court in the Mungai case (*supra*) had referred to the passage in *Wanjiro Wamiro Vs. Republic*, thus:

"Common intention generally implies a pre-arranged plan, but this does not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with."

HUADAN.

- Turning to the ingredient of participation, I find on the whole evidence $\mathsf{S}$ some uncontested facts. First, the deceased Okello David and his cosuspect Ojok Patrick alias Bici-Bici or Obic/Opic aka Obinya were arrested on the orders of A1 and taken to the home of A1. Second, the deceased was assaulted while at the home of A1 by assailants. The assailants included Opiyo Sam (A3 now a convict), and others such as Olanya Sunday 10 alias Tute, Ojok Nelson, Okello Denis, Ojok Simon, Opiyo Malaba, to mention but six. Third, the assault started during broad day light. Fourth, A2 and A4 visited the home of A1 on 5<sup>th</sup> July, 2021. Fifth, there was a huge crowd of people at the home of A1. Sixth, PW1 and PW2 are among those 15 that turned up at the home of A1 and both were present at the time the deceased and his co suspect were being assaulted. Finally, the deceased was carried from the home of A1 by some boys to his parents' home after the assault. - 20 The question then is, did the accused persons participate in causing the unlawful death of Okello David? From the evidence reviewed, beginning with A1, he is charged because he allegedly gave orders on which the deceased was assaulted by the assailants. A1 denies giving orders. PW1, PW2 are the key witnesses who say A1 gave orders that the deceased be beaten to death. A1 first ordered for the arrest of the deceased from his 25 alleged hideout. A1 does not deny this. After the assault of the deceased, A1 ordered that he is taken to his parents' home. This order is also not

HAADQue.

denied. Indeed, it was PW3 (Ochora Walter) who with three others, carried $\mathsf{S}$ the deceased to the parents' home. I note that the sequence of the events from the arrest of the deceased and his being taken to the home of A1 shows A1 as the person who was in charge and was directing everything. A1's denial that he ordered for the beating of the deceased is destroyed by the prosecution witnesses. In my opinion, there is no way the assailants 10 could have assaulted the deceased at A1's home if A1 had not authorized the assault. His sitting back and failing to at least alert Police for help if at all, confirm he authorized the assailants. The assailants were not acting on a frolic of their own. A1 and the assailants had formed a view that the deceased and Ojok Patrick were thieves. I thus find the claim by DW4 that 15 A1 attempted to restrain the assailants, to be false. A1 never claimed so. I hold that the prosecution witnesses proved beyond reasonable doubt the participation of A1 in causing the unlawful death of the deceased by giving the illegal orders that he is beaten, and to death. The prosecution 20 witnesses were not challenged at all.

Regarding A2, he denies being at the scene at the time the deceased was taken to the home of A1, saying he left A1's home at 3:00pm and went back to his home. However A1 stated that the deceased was brought to his (A1's) home at 12:30pm. Thus A2 lies when he claims he left the scene at 3:00pm when the deceased was not yet there. DW4 appears to support A2 but oblivious that her father A1 had stated to the contrary. PW1, PW2,

Hersolin.

- $\mathsf{S}$ PW3, PW4 and A1 all placed A2 at the scene of the crime being A1's home. Regarding the assault of the deceased by A2, PW1, PW2 and PW3 were consistent that A2 assaulted the deceased. They saw him do it. Regarding the claim of an alleged grudge, the law is that evidence of likelihood of a grudge must be weighed and taken into consideration. See: Jonathan - 10 Barinda Vs. Uganda, S. C Criminal Appeal No. 005 of 1989. Here it was alleged by A2 that PW1 a step sister, had a grudge because of a land dispute. He added that because PW2 allegedly had testified for PW1 in a land case before LCII Court, then PW2 also had grudge. I note that in chief, and cross examination, PW1 said there was no grudge, while PW2 was not 15 cross-examined on the claim by the Defence. In my view, both PW1 and PW2 were credible witnesses. Both were not selective in their naming of the assailants. Both witnesses were supported by PW3. A2 does not purport to discredit PW3 but only claims he never saw PW3 at the scene. I find that PW3 was at the scene because he is among the persons who 20 carried the deceased from Al's home to his parents' home in an unconscious state. This is not refuted. PW4 who visited A1's home much later when the beating of the deceased had stopped, saw A2 holding a stick. This is consistent with the beating that had happened earlier and which PW1, PW2 and PW3 testified about. A2 does not allege any grudge - 25 against PW4. Furthermore, the statement by A1 that A2 beat only Ojok Patrick which A2 of course denies, makes A2 most unworthy of belief in that he even denies beating Ojok yet his co accused saw it. I do not of

HeArson.

- course believe A1 that only Ojok Patrick was assaulted by A2. I find that $5$ A2 also assaulted the deceased as shown by the prosecution witnesses. A2 was positively identified by PW1, PW2 and PW3 who are his village-mates. They were not mistaken. A2 also cut the sticks which he distributed to the assailants and he himself used a stick to assault the deceased. The assault happened during broad day light. PW1 and PW2 stood only 3 metres away 10 from the deceased as he was being assaulted. The assault went on for some considerable time although the prosecution witnesses were not consistent on the exact duration. I find their contradictions on the time lag, minor. The contradictions did not point to any deliberate untruthfulness. See: - Nasolo Vs. Uganda [2003] 1 E. A 181 (SCU). I thus hold that A2 was 15 positively identified as an active participant in the assault of the deceased Okello David at the home of A1 on 5<sup>th</sup> July, 2021. See: Abdalla Nabulere & 2 Others Vs. Uganda [1978] UG SC, 5. I thus reject A2's alibi that at the time the deceased was brought to the home of A1, A2 had already left. I also do not believe DW4 as she had reason to support her father's co-20 accused. DW4 was not credible. She made serious claims and thus unworthy of belief. She for example claims the deceased was brought to the scene between 4:30-5pm yet her father (A1) says the deceased was brought to the scene at 2:30pm. I find A1 consistent in this regard because according to PW5, the Investigating Officer, the mother of the deceased 25 (Aguru) had been called to go to A1's home at 3:30pm (on the arrest of her son) but she declined. I find the alibi of A2 credibly destroyed by PW1,

HeAven. PW2, PW3 and PW4 who placed A2 at the scene of the crime as an active $\mathsf{S}$ participant in the assault of the deceased. See: *Mushikoma Watete alias* Peter Wakhokha & 3 others Vs. Uganda, SCCA No. 10 of 2020.

Given my analysis, I hold that the participation of A2 Odong Patrick Okot in causing the unlawful death of Okello David has been proved beyond reasonable doubt.

Regarding A4, he stated that he only spent about four to six minutes at the home of A1 on 5<sup>th</sup> July, 2021. And that A1 sent him to resolve a land boundary dispute between the children of Ojok Santo. A4 claims before he 15 could go, he saw the suspected thief Ojok Patrick. Ojok was surrounded by crowd that included Ojok Simon and Opiyo Sam (convict). A4 allegedly asked Opiyo Sam not to beat Ojok Patrick. A4 then went away. I note that the claim by A4 is contrary to what A1 told court regarding A4. A1 stated 20 that A4 beat Ojok Patrick. This defeats A4's projection of himself as a person who attempted to plead for Ojok and thus a law abiding citizen. A4's claim that he went away immediately at about 2:04 or 2:06pm because he was assigned work by A1, was not mentioned by A1. A1 never stated that he sent A4 on any assignment. Interestingly A1 himself put a 25 narrative that he went for a meeting at the same home of the same Ojok Santo at 3:30 pm after dispersing the crowd and postponing the gathering to the next day and so the deceased was not assaulted on 5<sup>th</sup> July, 2021.

Husselman

I note that whereas A1 subsequently contradicted himself when he $\mathsf{S}$ conceded the deceased was assaulted on 5<sup>th</sup> July, 2021 behind a tree within his courtyard, I find that A4 could not have gone on the assignment that A1 never mentioned. I hold that PW1, PW2, PW3 and PW4 placed A4 at the scene as one of the assailants who assaulted the deceased. He was 10 present throughout. PW1, PW2 and PW3 saw him use a hoe handle to hit the back of the deceased. After the assault, A4 dropped down the hoe handle and use sticks to beat the whole body of the deceased. I note the claim of a grudge A4 raises against PW4. PW4 was not cross examined about it. I do not see how a person who is alleged to have unsuccessfully 15 competed for the position of land chief (Rwot Kweri) way back in 2019 could hold grudge as at the time of testifying in 2024 against the successful candidate for murder. I think the claim is an afterthought because PW4 against whom the grudge is raised says he only saw A4 holding a stick as the beatings had already ended at the time he got to the 20 scene. I find the further claim that since PW3 is a brother of PW4, then PW3 had reason to testify against A4, farfetched. This is so because PW3 was not cross examined about the alleged grudge. I find that PW1, PW2 and PW3 positively identified A4 as one of those who assaulted the deceased. The conditions that favored correct identification existed. A4 does not raise grudge against PW1 and PW2 who identified him as well. 25 The alibi raised by A4 was destroyed by the prosecution witnesses. I reject the claim by A2 and DW4 that A4 had left the crime scene before the

HAAOOun

deceased was taken there. I hold that A4 assaulted the deceased Okello $5$ David and thus participated in causing his unlawful death on 5<sup>th</sup> July, 2021.

In conclusion, and in agreement with the gentlemen assessors, I hold that 10 the prosecution witnesses proved beyond reasonable doubt that all the accused persons had common intention to do unlawful act and participated in causing the unlawful death of Okello David. Consequently, I find A1 Oola Peter, A2 Odong Patrick Okot and A4 Okumu Charles guilty of murder contrary to section 188 and 189 of the Penal Code Act Cap 120

15 and I accordingly convict them.

Dated, signed and delivered at Gulu this 16<sup>th</sup> July, 2024.

HADDLW. 16/7/2024 George Okello **JUDGE**

## 20

## Judgment read in Court

11:00am 16<sup>th</sup> July, 2024

## 25 **Attendance**

A1, A2 and A4 in Court Mr. Samuel Openy and Ms. Barbra Beatrice Angufiru Defense counsel on State Brief, for the accused persons Ms. Sarah Amony, Chief State Attorney, for the Prosecution Assessors

$-30$

Mr. Ochan Stephen, Court Clerk/ Interpreter


$5$

## SENTENCING, THE REASONS, AND THE SENTENCE

On convicting the accused persons of murder, contrary to section 188 and 189 of the Penal Code Act Cap 120, the learned Chief State Attorney, Ms. Amony submitted that the convicts are first offenders with no past criminal record. She argued that the maximum punishment for murder is death. She also argued that there was no justifiable reason for the unlawful acts 10 of the convicts. That the manner in which the deceased met his death was brutal, gruesome and inhuman. She submitted that the deceased was assaulted until he was lifeless. He died a slow but painful death, having been assaulted for several hours and stopped reacting to pain. The deceased was only 16 years old and of value to his family. Life is sacred 15 and irreplaceable, it was contended. The family has never recovered from the traumatic loss. For A1 (convict number 1), the State counsel prayed for life imprisonment reasoning that A1 gave orders that the deceased be beaten to death. Being LCI Chairman, A1 abused his position, it was submitted. Regarding A2 and A4, the State prayed for 50 years' imprisonment for each convict because they assaulted the deceased till death.

For the defence, Ms. Angufiru argued that the convicts are first offenders with no known criminal record. A1 is now 66 years old thus of advance $25$ age, it was submitted. He was taking care of 07 grand-children at the time of his arrest. Defence counsel proposed 15 years' imprisonment for A1. In

Hudodew.

- his allocutus, A1 stated that he suffered injuries some time back before $5$ this incident and as a result he has weakness in his waist and both legs are a bit paralyzed. He requested court to reduce the 15 years proposed by his counsel. - For A2 and A4, Defence counsel proposed 25 years for each convict. $10$ However, in their allocutus A2 and A4 proposed 10 years. The reasons given by each are family responsibilities. A2 is a father of six and had two dependants at the time of the arrest. A2 is 40 years old. His oldest child is 12 and the youngest 02 years. A4 is a father of 05 and is 38 years old. His youngest child is 2 ½ while the eldest is 09 years. A2 also added that his 15 mother is 78 years old and he was the one taking care of many children. A4 stated that he is the breadwinner and his wife cannot take care of the family. He suffered stroke in 1998 and since then whenever it is cold, his right hand gets paralyzed.

Court was informed by the Prison Wardress, Principal Officer II Taka Evelyn that all the convicts have spent 02 years 11 months and 25 days on remand.

The maximum punishment for murder under section 189 of the Penal 25 Code Act Cap 120 is death. Part 1 of the third schedule to the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Direction,

Haralus.

L. N No. 8 of 2013, provides the sentencing range in capital offences. For $\mathsf{S}$ murder, the maximum punishment is death. The starting point is 35 years with the sentencing range being from 30 years up to death.

In this case, death sentence has not been proposed by the State. The second heaviest line of punishment which is life imprisonment has been 10 proposed for A1 by the State counsel while Defence counsel proposes 15 years' imprisonment for A1 whereas he proposes a further reduction. For A2 and A4, the State proposes 50 years' imprisonment each while their Counsel propose 25 years each and they themselves each propose 10 15 years.

The law is that a first offender should not ordinarily be given the maximum punishment. See: Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993. As noted, the maximum sentence has not been proposed by the State.

The State counsel and the Defense having variedly made proposals, I proceed to consider past precedents while keeping in mind the sentencing guidelines. It has been held that the sentencing guideline has to be applied while considering the sentencing conventions in cases bearing similar resemblance though such cases are not binding precedents. That said, past cases of course do afford material for court consideration. See: Ogalo

Hlyfollow

s/o Owoura Vs. R (1954) 21 EACA 270; Ninsiima Gilbert Vs. Uganda, C. A $\overline{5}$ Crim. Appeal No. 180 of 2010.

$\theta$

In Uganda Vs. Ochir Benson, Criminal session case No. 0144 of 2015, where the convict assaulted the deceased to death with a piece of wood, the High Court (Mubiru, J.) after considering the aggravating and mitigating factors 10 found 22 years' imprisonment to be appropriate but after deducting the period spent on remand, sentenced him to 19 years' imprisonment. In Higenyi Andrew Paulo Vs. Uganda, Criminal Appeal No. 0085 of 2008, the Court of Appeal reduced a sentence of life imprisonment for murder to 20 years' imprisonment. In Atiko Lino Vs. Uganda, Criminal Appeal No. 0041 15 of 2009, where the trial court had not deducted the period the Appellant spent on remand, the Court of Appeal reduced the sentence of life imprisonment to 20 years' imprisonment. In Arop Vs. Uganda, Criminal Appeal No.0460 of 2014, the Court of Appeal held that the sentences imposed or confirmed by it for murder range from 15 years to 25 years. 20 The court referred to Imakuru Isaac Vs. Uganda, Criminal Appeal No.215 of 2009.

In the instant case, beginning with A1 Oola Peter, he is a first offender and is of advanced age now 66 years. He, however, was a person who should 25 have known better and not given illegal orders that caused the death of the deceased, being an LCI Chairman. Life was lost and is sacred and is

Haadur.

thus irreplaceable. The deceased had many years ahead of him and could $5$ have been helped to reform since he was only 16. He should have been handed to Police on arrest as a suspected a thief but A1 dealt with the matter his way by ordering the assault of the deceased to death. Given his advanced age of 66, I find life imprisonment proposed by the State to be 10 rather too harsh. I take the fact that A1 is also a first offender and looks sickly as he explained to court. The family obligations of A1 is of course not a relevant factor in my view for mitigation purposes especially in murder cases. However, the other factors A1 gave play in his favour. Given the gravity of the offence and all the circumstances and the sentencing conventions, I would find 20 years' imprisonment appropriate for A1 for 15 murder. Taking into account the 02 years, 11 months and 25 days spent on remand which is a credit to A1 under article 23 (8) of the Constitution of Uganda, 1995, and guideline 15 of the Sentencing Guidelines, I now sentence you A1 Oola Peter to 17 years and 05 days' imprisonment for murder contrary to section 188 and 189 of the Penal Code Act Cap 120 20 starting today 16<sup>th</sup> July, 2024.

Turning to A2 and A4, I note their roles in assaulting the deceased to death. I also note that they are relatively young men at only 40 and 38 years, respectively, and can reform and be useful citizens. I have taken $25$ note of the claim by A4 that he suffered stroke in 1998 and his right hand gets paralyzed in cold weather. Both A2 and A4 of course should have

Headow.

- restrained themselves and not yielded to illegal orders since they were not $5$ under any compulsion to execute it. A2 and A4 were senseless and disregarded the sanctity of life. In the circumstances, given that they are first offenders, and going by the sentencing practices, and having yielded to illegal orders, I would find 18 years' imprisonment appropriate for A2 and A4. After deducting the 02 years, 11 months and 25 days spent on 10 remand from the proposed 18 years, I now sentence you A2 Odong Patrick Okot to 15 years and 05 days' imprisonment for murder contrary to section 188 and 189 of the PCA starting today. - Similarly, for A4 Okumu Charles, after deducting the same period spent 15 on remand from the proposed 18 years' imprisonment, I now sentence you A4 Okumu Charles to 15 years and 05 days' imprisonment for murder, contrary to section 188 and 189 of the Penal Code Act, starting today. - A1Oola Peter, A2 Odong Patrick Okot, and A4 Okumu Charles is each 20 advised of his right of appeal to the Court of Appeal of Uganda, at Kampala, against both conviction and sentence, within 14 days from today, if dissatisfied. - Dated at Gulu this 16<sup>th</sup> July, 2024 25