Uganda v Vumilia and 2 Others (Criminal Session Case 300 of 2023) [2024] UGHC 1138 (12 January 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA OF HOIMA AT KYANGWALI

# CRIMINAL SESSION CASE NO.0300 OF 2023

...................................... **UGANDA** ....................................

#### **VERSUS**

### A1. VUMILIA FRANSWAZA

## A2 DEZANZE MWAMINA

A3. TUMUSUFURE REBECCA..................................

# Before: Hon. Justice Byaruhanga Jesse Rugyema.

# **IUDGMENT**

- The 3 accused persons; Vumilia Franswaza (A1), Dezanze Mwamina (A2) $[1]$ and Tumusufure Rebecca (A3) were indicted of the offence of Murder C/ss 188 & 189 PCA. It is alleged that on the $14/7/2023$ at Block 14 Malembo village, Kyangwali Refugee Camp in the Kikuube district with malice aforethought the 3 accused persons caused the death of Rihigisha Simon. A1 is the mother of A2 & A3 while the deceased was the husband of A1 and father of A2 & A3. They all pleaded not guilty to the offence. - The prosecution case is that on the $13/7/2023$ at around 10:00pm, the 3 $[2]$ accused persons while in the company of a one Beba Nuru returned home from the bar while drunk/intoxicated with alcohol. During the day, the accused had questioned them about their drinking habits of waragi. - When the deceased opened for the accused persons and the said Beba $[3]$ Nuru, upon entering the house, A2 picked a stool and hit the deceased on the forehead as others also joined her to assault the deceased using sticks all over. It is a one Baraka Soroti who came and rescued him and was later taken to Marembo Health Centre III for treatment.

- Upon closure of the prosecution case, the accused persons were put on their defence. Under S.73(2) TIA, as their right, each opted to keep quiet $[4]$ thus offering no evidence. - As in all criminal cases, the burden of proof is on the prosecution to prove its case beyond reasonable doubt. The accused person is convicted on the $[5]$ strength of the case as proved by prosecution but not the weakness of his defence; Woolmington Vs DPP [1935] AC 462 and Israel Epuku S/o Achietu Vs R [1034] 1 EA CA 166. - The prosecution can only secure a conviction on a case of murder by $[6]$ proving the following ingredients of the offence: - a) That the person named in the indictment as the deceased is dead. - b) That the cause of death was unlawful. - c) That the death was caused by malice aforethought. - d) That the accused person participated in the commission of the offence. - As regards the $1^{\mbox{\tiny st}}$ ingredient of the offence, the prosecution adduced $[7]$ evidence of the post mortem report that was admitted in evidence under S.66 TIA. The Post Mortem Report established death of the deceased occurring on the 27/7/2023. Death of the deceased was not disputed by the defence. In the premises, I find the $1<sup>st</sup>$ ingredient of the offence duly proved to the required standard. - As regards the $2^{nd}$ ingredient of the offence, all homicides (the killing of $[8]$ a human being) are declared unlawful save where the homicide was committed under circumstances that were either accidental, or defence of person or property or in execution of a lawful court order, See Gusambizi S/o Wesonga Vs R [1948] 15 EACA 65 and Uganda Vs Gayira & Anor [1994-1995] HCB 16. In the instant case, there is no evidence that the murder in question fell under the exceptions of the excusable circumstances. - As for the issue of malice afore<br>thought as the $3^{\mbox{\tiny rd}}$ ingredient of the offence, $[9]$ the deceased before his death had made a statement to police (P. Exh.3) wherein he stated that A2 first hit him with a stool on the forehead, the rest of the accused persons assaulted him all over with sticks and he

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sustained severe injuries all over the body. This evidence is corroborated by the Post Mortem Report (P. Exh.1) which show that the deceased sustained injuries which included a deep wound on the forehead, other injuries on the shoulders, both legs, elbow joint (left), chest, both knees etc. The injuries the deceased sustained as per the post mortem report are consistent with the statement which describes how he was assaulted.

# [10] Under S.191 PCA,

- "Malice aforethought shall be deemed to be established by evidence providing either the following circumstances: - a) An intention to cause the death of any person. - b) Knowledge that the act or omission causing death will probably cause death of some person..."

In cases of homicide, court deduces the intention or knowledge from the circumstances surrounding the killing, including the mode of killing, the weapon used, and the part of the body assailed or injured; Nanyonjo Harriet & Anor Vs Uganda, SC Crim. Appeal No.24/2002 [2007] UGSC $10.$

- In the instant case, it is apparent that whoever inflicted upon the $[11]$ deceased such extended multiple injuries coupled with the use of such unreasonable force to strike the deceased with a stool on his forehead and damage the brain must have intended to cause death or had knowledge that such acts would cause death of the deceased. In the premises, I find the 3<sup>rd</sup> ingredient of the offence duly proved to the required standard. - As regards the last ingredient and most important ingredient of the $[12]$ offence i.e, whether the accused persons participated in the commission of the offence of murder the prosecution relied mainly on the statement that deceased made while in the hospital before his death (P. Exh.3) and the Post Mortem Report (P. Exh.1). - [13] The deceased's statement was recorded by Anwaongocan Samuel (PW2) a police officer who investigated the case. He found the deceased admitted at Malembo Health Centre III.

- [14] In his statement which the deceased gave in Swahili but was recorded in English by PW2, the deceased revealed that he was assaulted by the 3 accused persons and a one Babe Nuru who is still at large. A1 was the deceased's wife while A2 & A3 were his children. They assaulted him at around 10:00am when they were returning from the bar. During the day, the deceased had questioned them about their alcohol drinking habits. They decided to go back to their drinking habit, probably with the intention to secure the dutch courage to assault the deceased. This appear so because when the deceased opened for them to enter the house, A2 immediately picked a stool and without much ado, unprovoked, all the available force, struck the deceased on the forehead with it. - The accused persons being members of the deceased household, it would $[15]$ appear to me that the issue of identification would therefore not arise. The accused persons as a routine were returning home. The deceased was able to even name Beba Nuru who is still at large as being among the assailants. The deceased knew them well and therefore, with or without favourable conditions for identification, he would know who they were. - The deceased's statement (P. Exh.3) require corroboration before one can $[16]$ entirely rely on it to find a conviction of the accused persons. It constituted the words of a dying person on his death bed in the hospital. Due to the nature of society in the Refugee Settlement, people come and go. Vital witnesses like Baraka Soroti who rescued the deceased from the assailants relocated to an unknown place. - [17] Nevertheless, I find the post mortem Report (P. Exh.1) corroborating the deceased's statement. The description of the injuries sustained by the deceased as observed on his body match the description given by the deceased in his statement (P. Exh.3) while on his death bed. - [18] The statement contains the truth as regards how the deceased was assaulted and who assaulted him. It was not made in anticipation of the post mortem Report but matched the findings of the doctor who conducted the post mortem. The entire evidence implicates all the accused persons. The honourable assessors also advised that the accused

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persons are guilty of the offence as charged. I find that the prosecution has proved its case beyond reasonable doubt that the accused persons with one common intention assaulted the deceased, inflicted upon fatal injuries that later led to his demise. I find the accused persons guilty of the offence charged and convict each of them of the murder accordingly.

# Dated at Kyangwali this 12<sup>th</sup> day of January, 2024.

## Byaruhanga Jesse Rugyema

Judge

## $12/1/2024$

3 accused persons present

Ms. Seera Becky for state

Mr. Mushabe for defence

Ms. Kabachope: Clerk

2 Assessors present

#### Court:

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

#### State:

No past criminal record of each of the convicts. The trio caused the death of their father/husband over nothing. The nature in which the deceased met his death was very absurd. I pray for an appropriate sentence.

## **Allocutus:**

A1 is the mother of 3 children of which the convicts; A2 & A3 are some of them. The $3^{rd}$ child is aged 10 years. A2 is a mother of 5 children, the youngest being 1 & 4 months. A3 is a juvenile offender aged 15 years old and now at home, they are 6 children being taken care of by the 10-year-old child. I pray for a lenient sentence in consideration of the children at home. The convicts have been on remand for a period of 5 months and 11 days and therefore pray for a lenient sentence and taking into account this period they have been on remand.

## **SENTENCE**

- [1] The accused persons are $1^{st}$ offenders. They have however been convicted of a very serious offence of murder which attracts a maximum sentence of death. The deceased was a husband of A1 and a father to A2 & A3. The accused persons were drunk but took alcohol for purposes of committing the offence. Both A2 & A3 have young children that need care but again, they are responsible for their calamity. - The deceased met a painful death from his own people. There is need $[2]$ for a deterrent sentence to deter the other would be offenders of this nature. In the premises, I consider the sentence of 20 years for A1 and A2. As regards A3, she committed the offence at the age of $16$ years as per **P. Exh.2**, the children sentencing regime has to apply to her. The maximum sentence is 3 years for a capital charge under S.93(1(g) of the Children's Act. Considering the period each has been on remand, i.e A1 & A2 shall serve a sentence of 19 years and 7 months. As regards A3, she shall serve a sentence of 7 months imprisonment.

$R/A$ explained

Signed

Byaruhanga Jesse Reugyema

**JUDGE**