Uganda v Waako (Criminal Session 280 of 2022) [2024] UGHC 492 (8 May 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-CR-SC-0280 OF 2022**

**UGANDA=======================================PROSECUTOR**

**VERSUS**

**WAAKO IBRAHIM====================================ACCUSED**

**BEFORE: JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**INDICTMENT AND CASE BACKGROUND:**

The Accused was indicted for the offence of Murder contrary to Sections 188 and 189 of the Penal Code Act.

The brief facts in relation to the Indictment are that on the 12th day of February 2022 at Kigoro Trading Centre in Bunyangabu District the Accused killed one Byaruhanga John. The Prosecution alleged that during the night of 11th February 2022, the Accused went out drinking with the deceased and other persons and that at about 2AM on 12th February 2022 the Accused got into a quarrel with the deceased and started to fight with the deceased and ended up stabbing the deceased on the left side of his chest under the armpit. The deceased subsequently succumbed to his injuries while being rushed to hospital. The Accused was arrested and accordingly charged with murder.

The Accused denied the allegations and claimed that he did not kill the deceased but had instead encountered the deceased fighting with other persons and he had tried to restrain them.

**BURDEN AND STANDARD OF PROOF:**

According to the time-honoured case of Woolmington v DPP (1935) AC 462, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The locus classicus in this regard is the case of Miller v Minister of Pensions (1947) 2 All ER 372 wherein Lord Denning stated at Pages 373-374 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.”

The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991 where it was held that,

“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.”

**ISSUES ARISING:**

The issues in this matter are based upon the ingredients of the offence of murder. Section 188 of the Penal Code Act provides that,

“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder.”

The ingredients apparent in the offence of murder are therefore,

1. Death of a human being; 2. Death was caused unlawfully; 3. Death was caused with malice aforethought; and 4. The Accused person is responsible for the death.

**DETERMINATION OF ISSUES:**

1. **Whether there was death of a human being:**

The Prosecution tendered in a Post Mortem Report on Police Form 48B as part of the Agreed Facts under Section 66 of the Trial on Indictments Act and it was entered into evidence as Prosecution Exhibit 2 (PE 2). The Post Mortem Report detailed the examination by ASP Dr. Jonathan Katalemwa of a deceased person identified as Byaruhanga John on 12th February 2022.

It was revealed in **PE 2** that the deceased had suffered a penetrating injury with corresponding injuries to the left lung and the heart and that the cause of death was sharp force trauma with hypovolemic shock due to bleeding from the injury especially to the heart.

**PW2 Kaahwa Christopher**, the deceased’s brother testified that the deceased passed away on 12th February 2022 and that he had witnessed his brother immediately after he had been fatally injured and had also attended his burial.

There is no doubt therefore that the death of Byaruhanga John did in fact occur and this issue is therefore resolved in the affirmative.

1. **Whether the death was caused unlawfully:**

According to the case of **Gusambuzi s/o Wesonga v R (1948) 15 EACA 65** homicide unless accidental or caused in circumstances that are excusable like self-defence or defence of property then such is unlawful.

Furthermore, it was also held in **Paulo s/o Mabula v R (1953) 20 EACA 207** that in a capital case the State should tender any medical evidence as to death that may be available and where the accused alleges the fatal wound to have been inflicted accidentally it may well be vital to the interests of justice for any medical evidence to be before the trial judge, in as much as expert testimony may either establish or refute such a defence.

In this regard therefore the Prosecution was under a duty to prove beyond reasonable doubt that the death of the deceased occurred in unlawful circumstances. The Prosecution submitted that the according to the post mortem report PE 2 the deceased had injuries that were consistent with a homicide. The injuries and cause of death have already been described.

The Prosecution also relied on the testimony of **PW3 Abigaba Stephen**, a cousin to the deceased who testified that on the night when the deceased had been stabbed he was out burning charcoal about 25 metres away from the scene where he had found. He testified that he heard noise as though people were fighting and that he had heard the deceased cry out for help and that when he responded to the cry he found the deceased seated alone near the road bleeding under the armpit.

While the Defence raised contention about what exactly the deceased said when he cried out for help there was no evidence led to dispute the unlawfulness of the circumstances of the deceased’s death.

I therefore find that notwithstanding the Accused’s not raising any contention about the unlawfulness of the circumstances in which the deceased died, the post mortem report **PE2** and the testimony of **PW2** leave no reasonable doubt that the deceased met his death in unlawful circumstances.

This issue is resolved in the affirmative.

1. **Whether the death was occasioned by Malice Aforethought:**

Section 191 of the Penal Code Act provides that,

*“Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances –*

1. *An intention to cause the death of any person, whether such person is the person actually killed or not; or* 2. *Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.”*

Additionally, in the case of **R v Tubere s/o Ochieng (1945) 12 EACA 63** the defunct East African Court of Appeal held with regard to its duty in proving malice aforethought that the Court had to consider the weapon used and the part of the body injured.

The aforementioned considerations have subsequently been expanded in other decisions such as **Uganda v. Fabian Senzah (1975) HCB 136** (affirmed in **Lutwama and Others v Uganda - Supreme Court Criminal Appeal No. 38 of 1989**) to include the conduct of the accused before, during and after the attack.

In this particular matter the Prosecution’s case with regard to malice aforethought is based on inference of the Accused’s intent is largely based on the nature of injury and the part of the body injured.

The Post Mortem Report **PE2** gave vivid detail of the deceased’s injuries despite the use of medical terms. However, in capital cases like murder it is always prudent to have the Medical Examiner responsible for preparing the report appear in court for purposes of clarifying the injuries better to remove any reasonable doubt of the sort that may arise when too much medical jargon is included in the report. Fortunately, in this case the report was not so difficult to interpret.

The description of *“penetrating injury through the left lung … tearing it into 2 parts. Linear penetration injury on the left ventricle of the heart”* and, the subsequent description of the cause of death as sharp force trauma leading to hypovolemic shock from bleeding injury to the heart leaves no doubt that the fatal injury was inflicted either with intent to cause death or with indifference to the obvious knowledge that the injury would cause death.

This issue is accordingly resolved in the affirmative.

1. **Whether the Accused caused the death of Byaruhanga John:**

This leads me to the question of whether the Accused caused the death of the deceased. In proving participation of the Accused the Prosecution has to prove beyond reasonable doubt that the Accused was at the scene of the crime and actually participated in causing the death of the deceased.

In that regard the Prosecution case was largely dependent on circumstantial evidence as no Prosecution witness testified to actually seeing the Accused stab the deceased. The Prosecution also relied on evidence of a dying declaration by the deceased where the Prosecution maintained that the deceased positively identified the Accused as the one who stabbed him.

In terms of circumstantial evidence, the Supreme Court relied on the holding of the defunct East African Court of Appeal in **R v Kipkereng Arap Koske (1949) 16 EACA** 156 and held in **Byaruhanga Fodori v Uganda – Criminal Appeal No. 18 of 2002** that,

*“It is trite law that where the prosecution case that where the prosecution case depends solely on circumstantial evidence, the court must before deciding upon a conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty. The Court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt. (See* ***S. Musoke v R [1958] EA 715 & Teper v R [1952] AC 480****)”*

The admissibility of evidence of dying declarations is governed by Section 30(a) of the Evidence Act where it is provided that,

*“Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant facts … when the statement is made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person’s death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his or her death comes into question;”*

In the case of **Mibulo Edward v Uganda – Criminal Appeal No. 17 of 1995**, the Supreme Court agreed with the Trial Judge’s position on the law regarding dying declarations which position was to the effect that,

“*The law regarding dying declaration was restated by the Supreme Court recently in the case of Tindigwihura Mbahe v. Uganda Cr. App. NO. 9 of 1987. Briefly the law is that evidence of dying declaration must be received with caution because the test of cross examination may be wholly wanting; and particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification of the assailant is usually more difficult than in daylight. The fact that the deceased told different persons that the appellant was the assailant is no guarantee of accuracy. It is not a rule of law that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking very unsafe to base conviction solely on the dying declaration of a deceased person made in the absence of the accused and not subjected to cross examination unless there is satisfactory corroboration”*

With the underlying legal standards on this matter as laid out above in my mind I will now consider the evidence adduced with regard to the participation of the Accused. The primary evidence concerning participation of the Accused came from three witnesses. These witnesses were:

1. **PW3 Abigaba Stephen**, a cousin to the deceased and one of the first responders on the scene. 2. **PW4 DC Turyasiima Isaac**, the Investigating Officer. 3. **PW1 Komuhendo Annet**, LC1 Chairperson Kigoro 1 village.

**PW3** testified that on the night of the deceased’s murder at around 3AM he heard his cousin the deceased cry out for help. At the time **PW3** was out monitoring the preparation of his charcoal and he testified that he was about 25 metres away when he heard noise as though people were fighting. He further testified that he heard his cousin call him by name and say *“Come and see! Waako has stabbed me!”.*

**PW3** then raised a neighbor by the name Baguma with whom they responded to the deceased’s alarm and found him seated alone near the road. The evidence of where the deceased was found after the attack is consistent with the Sketch Plan of the Crime Scene prepared by **PW4** the Investigating Officer and tendered into evidence as Prosecution Exhibit (**PE3**) along with pictures **PE 3A** and **PE 3B**. The crime scene evidence collected is consistent with that of **PW3** and also confirms where PW3 was burning his charcoal in relation to the scene of the stabbing.

**PW3** then went on to testify about how he and his neighbor Baguma had taken the deceased to a nearby clinic where the deceased’s brother **PW2** Kaahwa joined them and subsequently transferred the deceased to Fort Portal Regional Referral Hospital also commonly referred to as Buhinga Hospital.

**PW4** testified that he investigated the case and interviewed a number of people among whom was **PW3**. He visited the crime scene and drew a Sketch Plan from which he was able to depict where **PW3** was in relation to the alleged stabbing and confirmed that he had seen where **PW3** had been burning charcoal. He further testified that the first responders on the scene told him that the Accused had run away which information was consistent with **PW3**s testimony about finding the deceased alone by the roadside.

**PW1** Komuhendo, the LC1 Chairperson testified that at about 7PM on the night the deceased was killed she gone out to settle a quarrel at the home of one Abigaba Lawrence. She had then met the deceased with one Kemigisa who was claiming he had lost her phone and wanted him to replace it. PW1 then testified that she had witnessed the deceased pay UGX 30,000 as compensation for the phone. She had then moved on with two other persons to have her own phone screen repaired at one Kihumuro’s home. She then testified that the Accused had confronted her there asking why she had made claims that his mother was a witch. **PW1** then stated that the Accused had threatened to stab her and had drawn a knife with a wooden handle.

**PW1** further testified that she had gone home in fear till she was woken up around 1AM with news that the Accused had stabbed the deceased whereupon she had called the CID desk in Bunyangabu but they were not able to respond immediately.

The evidence of **PW1** is pertinent in two material regards. First, it casts doubt on the Accused’s own account of events. In his sworn testimony about the events of the night the Accused testified that on the evening of the murder he had returned home to eat and had only ventured outside to break up a fight in which the deceased was involved. He denied meeting **PW1** in the evening and claimed that he had last seen her at 2PM. However, I find that **PW1**s account of events of the evening was cogent and believable. She started by describing events in detail that had led to her meeting both the Accused and the deceased. The events prior to her meeting the Accused could not have been easily fabricated as **PW1** would have been aware that they could very easily be crosschecked. Furthermore, the circumstances of both meetings were so totally unrelated as to create a credible impression that they were totally random meetings and not merely fabricated events.

The second pertinent matter in **PW1**s evidence is that she testified that the Accused had accosted her with a knife and threatened her. This evidence is pertinent as it corroborates the evidence of the injuries described in the Post Mortem Report **PE 2** and the eye-witness testimony of **PW2** and **PW3** who saw the deceased at the clinic.

**Section 133 of the Evidence Act** provides that subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for proof of any fact. In this regard I am alive to the fact that while corroboration ideally makes evidence more reliable, the testimony of one witness can suffice to prove a fact provided the witness is shown to be reliable and truthful. Furthermore, **PW1**s evidence tends to outline circumstances just prior to the murder and to that extent is relevant even without corroboration. She was subjected to cross-examination and there was no material inconsistency apparent in her testimony.

In the case of **R v Kurji (1940) 7 EACA 58**, the Accused in that case had stabbed the brother of the deceased twice with a dagger and had uttered threats against the deceased. Immediately afterwards, he was seen in the go-down of an immediate shop standing over the deceased holding a dagger. It was held in that case that the two circumstances were so interconnected that the wounding or stabbing of the deceased’s brother must be regarded as part of the *res gestae* in the trial of the accused in the murder of the deceased.

The aforementioned case while not on all fours with the current case provides the legal basis for the conclusion that the evidence of **PW1** about the Accused threatening her with a knife on the same evening as when the deceased had died by stabbing is interconnected with the circumstances of the deceased’s demise. To that extent it is admissible evidence establishing that the Accused was armed with the murder weapon shortly before he stabbed the deceased.

This leads me to the next aspect of evidence in this matter which is the dying declaration. Going by the Mibulo precedent cited above, it is unsafe to base a conviction on a dying declaration made in the absence of the accused and is not subjected to cross-examination unless corroborated. In this particular case, **PW3** who testified about the dying declaration was cross-examined and there was nothing materially inconsistent about his testimony in that regard. However, it is also clear that the murder took place during the wee hours of the morning of 12th February 2022, that is, somewhere between 1AM and 2PM. This raises an obvious concern as to whether the deceased properly identified his assailant. As stated above in the Mibulo decision, particular caution must be exercised when the attack was done in the night-time when conditions of identification of the assailant would be difficult.

Counsel for the Accused argued that Prosecution had failed to adduce evidence of the conditions under which the deceased identified the Accused. However, I disagree with the notion that proof of the conditions is the sole guiding factor in correct identification.

Concerning identification in criminal trials, the defunct East African Court of Appeal held in the case of **Abdalla Bin Wendo and Another v R (1953) 20 EACA 166** that,

1. The testimony of a single witness regarding identification must be tested with greatest care. 2. The need for caution is even greater when it is known that the conditions favouring a correct identification were difficult. 3. Where the conditions were difficult, what is needed before convicting is ‘other evidence’ pointing to guilt. 4. Otherwise subject to certain well known exceptions, it is lawful to convict on the identification of a single witness as long as the judge cautions himself or herself on the danger of basing a conviction on such evidence alone.

In this case I am alive to the fact that not only was the dying declaration brought to the attention of Court by a single direct witness but the circumstances where also difficult in as much as it was clearly dark in the wee hours of the morning. To that extent I do apply caution in making my conclusion regarding this issue. I am persuaded that the deceased did know who stabbed him. For one thing the Accused himself stated in his defence that he had been involved in a fight where the deceased was a participant but had the Accused had portrayed himself as trying to break up the fight. This effectively placed him at the scene.

Furthermore, the prior testimony of **PW1** concerning his threats to her and possession of a knife corroborates the deceased’s identification in the dying declaration. It is also pertinent that **PW2 Kaahwa Christopher** the deceased’s brother testified that the Accused was a village-mate meaning that he must have also been known to the deceased. The very nature of the altercation which was heard by **PW3** at a distance of about 25 to 30 metres would not leave reasonable doubt that the deceased had to have known who exactly stabbed him. The Accused also testified that he knew all the participants in the fight including the deceased. This evidence in its totality constitutes other evidence required in conditions of difficult identification and I find that it was sufficient basis to conclude that the deceased correctly identified the accused.

Counsel for the Accused also raised the defence of alibi. However, in this case I disagree that alibi applies. This is because essentially the Accused never denied being at the crime scene but had tried to paint a picture that he left before the murder occurred. It therefore remained a question of ascertaining his version of events that night against the evidence of the Prosecution and at the end of the day the Prosecution evidence placed him at the scene of crime.

I therefore find that based on the evidence above including the Accused’s own testimony, there can be no other reasonable conclusion other than the fact that the Accused was present and actually stabbed the deceased leading to his death. This issue is also therefore resolved in the affirmative.

**C0NVICTION:**

I therefore agree with the opinion of the Assessors and hereby find the Accused guilty and I accordingly convict him for the murder of Byaruhanga John contrary to Sections 188 and 189 of the Penal Code Act.

**SENTENCE:**

The Convict was indicted for the offence of Murder contrary to Sections 188 and 189 of the Penal Code Act and was accordingly tried by this court and found guilty of the murder of Byaruhanga John.

In this matter I note that the Convict is a first time offender with no previous criminal record. However, the offence for which he was convicted is of an extremely serious nature and involved the taking of a human life in circumstances indicative of a lack of appreciation of the value of human life. The Convict got involved in a fight with the deceased and in the process used a knife to stab the deceased under the armpit in the chest region. Any reasonable person ought to have known that such an injury was likely to cause death but the convict was at best unconcerned about the likely impact of the injury he inflicted or at worst intentionally driven towards inflicting the injury. This kind of conduct reflects a state of mind that poses a danger to society as the convict does not appear to appreciate the value of human life.

I also note that the circumstances under which the convict caused death involved some kind of fight which is also indicative of socially destructive behaviour not only limited to himself but also affecting all who were involved in the fight including the deceased who sadly paid with his life. This fight evidently involved more than one person and included the deceased so it was not entirely a situation of the convict’s sole making per se.

Nevertheless, there is still a need to send out a deterrent message that this sort of conduct is completely unacceptable in civilized society.

I also take into account the convict’s relatively young age and consider that he has time to reflect on his mistakes and hopefully emerge as a reformed and productive member of society. The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions specify a punishment ranging from 30 years up to the death penalty. However, bearing in mind the foregoing considerations I consider it appropriate and I sentence the convict to a term of 25 years imprisonment less time spent on remand being 2 years, 2 months and 1 day. The convict shall therefore serve a term of 22 years, 9 months and 30 days.

The Convict shall have the right to appeal the conviction and sentence to the Court of Appeal within 14 days from the date hereof.

**David S. L. Makumbi**

**JUDGE**

**08/05/24**