[2023] UGCA 136

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT ARUA

[Coram: Barishaki, Mugenyi & Gashirabake, JJA]

#### CRIMINAL APPEAL NO. 128 OF 2018

(Arising from High Court Criminal Case No.0066 of 2016)

| 10 | 1. AGUPIYO SIMON | |----|------------------| | | 2. ABIRIGA ALEX | | | 3. ENZAMA DAVID | | | 4. EGABE CHARLES | | | 5. AGUTA TOM | | 15 | AND |

<table>

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

(Appeal from the judgment of the High Court of Uganda Holden at Arua, before OYUKO ANTHONY OJOK. J delivered on the 28^th June 2018)

#### 20

$\mathsf{S}$

### JUDGMENT OF THE COURT

#### **Introduction**

On the 24^th May 2013, at around 4:30 a.m., the deceased Mundua Reuben, his wife Asam Noah (PW2) and his daughter Monday Scovia (PW3) were at home sleeping. Allegedly Agupiyo Simon (1^st Appellant) and Abiriga Alex (2^nd

Appellant) went to the deceased's house, knocked on the door and on waking up, 25 they told him that Fenhas Obitre, one of the elders in their family was about to die and needed to talk to him. The deceased who was accompanied by his wife and PW 2 left his house and moved with the $1^{st}$ and $2^{nd}$ Appellants.

On reaching the house of the said Obitre, the deceased proposed to pray for the former but the Appellants pounced on him and assaulted him several times. The 30 1^st Appellant cut him on the head with a panga, the 5^th Appellant cut the deceased's head with an axe.

The Appellants vanished from the village but they were arrested after one year. According to the post-mortem report that was tendered as a prosecution exhibit,

the deceased succumbed to a head injury resulting from blunt force trauma. 35

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- The Appellants were convicted for the offence of murder contrary to Sections 188 $\mathsf{S}$ and 189 of the Penal Code Act Cap 120. The Appellants were sentenced accordingly. Dissatisfied by the judgment and sentence of the trial court the Appellants appealed to this court on two grounds that: - 10

1. The learned trial judge erred in law and fact to conclude that the Appellants were properly identified committing the offence of murder in very unfavourable circumstances thereby making a wrong conclusion.

2. The learned trial judge erred in law and fact to pass a manifestly harsh and excessive sentence thereby occasioning a miscarriage of justice.

#### **Representation.**

The Appellants were represented by Mr. Paul Abeti. While the Respondents were 15 represented by Mr. Omia Patrick.

## Duty of this court.

This court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. 20 See Rule $30(1)(a)$ of the Judicature (Court of Appeal Rules) Directions S. I $13 - 10$

Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a **Machira & Co. Advocates [2013] e KLR**, with regard to the duty of the first appellate court it was stated;

> "This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way"

#### In Peters v Sunday Post Ltd [1958] EA 424, the Court held that; 30

"Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular

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conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide"

### Ground 1

#### Submissions for counsel of the Appellant.

Counsel submitted that the circumstances under which the Appellants were 10 identified by PW2 an PW3 were unfavourable conditions for proper identification. He additionally submitted that it was dark for proper identification even though the witnesses testified that there was a source of light, a torch and phone light. He submitted that this was insufficient for proper identification of the Appellants herein given the dense darkness at the time. 15

Counsel argued that the trial judge failed to warn himself of the dangers of mistaken identity. **PW2's** identification of the persons was only corroborated by **PW3** only as far as the 1^st Appellant was concerned. Furthermore, the evidence of the single identifying witness PW2 was never corroborated. PW2 was 20 suffering from the trauma of losing her husband to a mob and her vision could have been clouded in that moment, making it a possibility that her identification was not credible much as she had torch. PW3 stated that she was never at the scene of crime. Counsel further relied on the case of Abdalla Nabulere V **Uganda COA Crim.** Appeal No. 9 of 1978 where court established the rules of a single identifying witness.

Counsel submitted that this honourable court be pleased to revaluate the whole prosecution evidence as regards to the identification of the accused persons especially as regards to their participation in killing the deceased while in the dark compound of mzee Obitre.

Furthermore, the $2^{nd}$ and $6^{th}$ Appellants, they were never placed at the scene of 30 crime by any of the prosecution witness, additionally, they had an alibi and PW2 never identified them let alone did any prosecution witness.

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# s Submissions by counsel for the Respondcnt.

Counscl rc f'crrcd to thc casc ol Woolmington V DPP, [19351 UKHL and Miller V Ministcr of Pensions, ll947l2 ALLER 372 which brings out thc lact that burdcn of proof lics on thc prosecution and thc standard ol'prool'is bcyond rcasonablc doubt and not bcyond a shadow ol- doubt as was portraycd in thc submission by counscl.

Counscl lurthcr indicatcd that thc trial judgc was alivc to thc principlcs that arc followcd whcn dctcrmining cascs involving idcntilication whcrc thc conditions arc dccmcd to bc unl'avourablc and hc propcrly analyscd thc cvidcncc on rccord, applicd thc law to thc I'acts a( hand and arrivcd at thc right conclusion

- In thc casc ol-Abdallah Nabulere V Uganda CA No. l2ll98l, Abdallah Bin Wendo and Anor V Uganda CA No.l/199, it was hcld thal whilc idcntillcation ol an accuscd can bc provcd by a tcstimony o['a singlc idcntilying lvitncss, this docs not lcsscn thc nccd lbr tcstifying. Counscl thcrclorc submittcd that thc lcamcd trial .iudgc camc to a corrcct conclusion that PW2 and I'Wl idcntilicd all 15 - thc accuscd positivcly. liurthcrmorc. PW2 and PW3 told coufl that thcy know all thc accuscd. 'l-hcy lcstilicd thal thc accuscd pcrsons wcrc rclativcs and had known thc accuscd pcrsons lbr a long timc. 'l'hc cvidcncc ol'PW2 is corroboratcd by thc cvidcncc of PW3, Monday Scovia who told court that <tn 21105120 I 3, shc was a1 hcr homc with PW2 krgcthcr with thc dcccascd whcn thc l't and 2nd 20 - Appcllant knockcd at thcir door. PW3. PW2. thc dcccascd, l" and 2"d Appcllant wcnt to thc latc Obitrc I:cnhas' housc. PW2 had a torch. I lcr (athcr thc dcccascd had a phonc with light. PW2, I,W3 and thc six Appcllants wcrc acquaintanccs. thc light liom thc phonc and torch aidcd PW2 and PW3 1o idcntily all thc six Appcllants. 'l'hc two wilncsscs idcntificd thc Appcllants by both thcir I'accs and voiccs, and thcrclbrc thcrc is no possibility ol'mistakcn idcntity. 25 30

Additionally. PW2 and PW3's lcstimonics arc corroboratcd in various aspccts. Thc tcstimony of PW2 rcgarding hcr convcrsalion wilh A2 is corroboratcd

pcrlbctly by thc latter, whcn thc 2'd Appcllant told court on pag c 33 of thc rccord

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⁵ of procccdings, that thcy had a convcrsation. which also mcans that thcy kncw cach olhcr vcry wcll.

'l'hc sccond aspect of conoboration is Ibund in thc conduct ol'thc Appcllants aficr committing thc oll'cncc whcrcby thcy disappcarcd ltom thc villagc unccrcmoniously and thcy wcrc arrcstcd alicr onc ycar. 'l'hc cvidcncc of'running

away is circumstantial and passcs thc laid down tcst. In thc casc of Musoke V Republic 1952 EA 489 it was hcld that bclbrc drawing an inlcrcncc ol' thc accuscd guilt liom circumstantial cvidcncc, thc court must bc surc thal thcrc is no othcr cxisting circumstanccs which would wcakcn or dcstroy thc infcrcncc. 10

Iiurthcrmorc, in thc casc ol'George Wilson Ssimbwa V Uganda No. 371995, i1

- was hcld that thc accuscd /Appcllants conduct ol- running away liom thc villagc shorlly alicr thc murdcr was incompatiblc with his innoccncc, hcncc thc Appcllants conduct ol'running away alicr thc murdcr ol'Mundua Rcubcn is not onc ol'an innoccnt man and llrther buttrcsscs thc prosccution casc 15 - Counscl lurthcr submittcd on thc issuc ol'motivc, and clcarly slatcd thal thc Appcllants murdcrcd thc dcccascd mainly bccausc thcy suspcctcd him to havc caused thc dcath ol|cnhas Obitrc. Altcr luring thc dcccascd liom his homc to thc homc ol'Obitrc. Additionally, in a bid to cscapc thc hand of thc law, thc Appcllants savc fior thc 2"d Appcllant told court that thcy wcrc no1 at thc sccnc ol' crimc. I [or.r'cvcr, thc proscculion dcstroycd thc alibi raiscd by thc Appcllants 20 - through thc tcstimony ol-PW2 and PW3 who placcd thcm at thc sccnc ol-crimc, thc I'alsc alibi lurthcr corroboratcd thc prosocution casc. Counscl rclicd on thc casc ol'Fcsto Androa Asenua and another V Uganda SCCA no.l 1998. 25

Counscl lurthcr submittcd on scction 20 ol'thc l)cnal Codc Act and addcd that all thc six Appcllants workcd hand in hand kr tcrminatc thc lil'c ol'thc latc Mundua

I{cubcn, allcr thcy conccivcd thc plan to kill him, thc l'1 and 2"d Appcllants wcnt to his housc and lurcd hirr to thc crimc sccnc. 'l'hc 4tr'Appcllant cut thc dcccascd with an axc. thc l't Appcllant cut him rvith a panga whilc thc rcmaining Appcllants uscd clubs to assault thc dcccascd, nonc ol'thc countcrparts stoppcd 30

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^{^1//\*} ⁷

⁵ anolhcr liom assaulting thc dcccascd mainly bccausc thcy alrcady had a common causc and that was to murdcr thc latc dcccascd.

# Consideration of Court.

Courts havc sct rulcs ibr a singlc idcntillcation witncsscs or whcrc thc circumstanccs ol'thc idcntillcation arc dilficult. In Abdalla Bin Wendo and Another V. R.\_(1953),20 EACA 166 cited with approval in Roria v. R. (1967) EA 583 at pagc l68.--

> \*1a) 'l'hc tcstimony ol a singlc witncss regarding idcntification must bc tcstcd wilh thc grcalcst carc.

(b) l'hc nced for caution is cvcn grcatcr whcn it is known that thc conditions favouring a corrcct idcntification wcrc difficult.

(c) Whcrc thc conditions wcrc difficult, what is nccdcd bcforc convicting is 'othcr cvidcncc' pointing to guilt.

(d) Othcrwisc. subjcct to ccrtain wcll known cxccplions. it is lawlll to convict on thc identification ol'a singlc witncss so long as thc judgc advcrls to thc danger ofbzsing a conviction on such cvidcncc alonc."

ln Abdalla Nabulerc V Uganda COA Crim. Appeal No. 9 of 1978, court had this 10 statc:

"'l hc safc guards laid down in "cnclo arc in our vicw adcquatc. ifpropcrly

applicd, to rcducc thc possibility of a miscarriagc ofjusticc occurring. It will bc obscrvcd that thcrc is no rcquircrncnt in law or practicc for corroboralion, In applying Wcndo thcrc havc solnctimcs bccn rcl'crcnccs to lhc nccd lor corroboration whcrc thc only cvidcncc connccting thc accuscd with thc offcncc is the identification ol'a singlc witncss. Wc think that this is not corrcct. First, thcrc is clcar statutory provision that for thc proof olany fact, a plurality of wilncsscs is nol ncccssary: sce s. 132 ol''lhc l.]vidcncc Ac1 (cap.43). Sccondly, thcrc is no particular magic in having two or morc witncsscs tcstifying to thc idcntity of the accuscd in similar circumstanccs. What is important is thc quality o[thc idcntification. If thc quality ofthc

6lPage ⁵ idcntification in not good, a numbcr of witncsses will not curc thc dangcr of mistakcn idcntity. hcncc thc rcquircmcnt to look for 'othcr cvidcncc'.

> Where thc case against an accuscd dcpends wholly or substantially on the corrcctncss of one or more idcntifications of thc accuscd. which thc dcfence disputcs. thc judge should warn himsclland the assessors ofthe spccial nccd lor caution bcforc convicting thc accuscd in rcliancc on thc corrcctncss ofthe idcntification or idcntifications. 'l'hc rcason for the spccial caution is that lhcrc is a possibility that a mistakcn witncss can bc a convincing onc and that evcn a numbcr of such witnesscs can all bc mistakcn. 'l'hc judgc should thcn cxaminc closely thc circumstanccs in which thc idcntification camc bc madc, particularly, thc lcnglh of limc thc accuscd was undcr obscrvation, the distancc. thc light, thc familiarity of thc witness with lhe accuscd. All thcse factors go lo thc quality oflhc idcntification evidcncc. If thc quality is good, thc dangcr of a mislaken idcntity is rcduced but lhe poorer thc quality, thc greater thc danger."

- ²⁰ In proving propcr idcntification, thc prosccution, rclicd on thc cvidcncc ol PW2 and PW3. Considcring thc cvidcncc ol-thcsc two witncsscs, thc witncsscs and thc Appcllants staycd in thc samc villagc. 'l his mcans thal thcy wcrc Iamiliar with cach othcr. 'l'hc casc prcscntcd l-avourablc atmosphcrc ol'idcntiflcation. It was not an atmosphcrc ol'tcnsion not to lavour thc witncsscs to havc propcr idcntification. - Itathcr it was a liicndly atmosphcrc that cnablcd thc witncsscs havc timc to identify thc Appcllants. PW2 and PW3 both testificd that thc Appellants camc and knockcd thc door rcqucsting thc dcccascd to go to thc latc Obitrc's homc such that thcy lbrgivc cach other.'l-his convcrsation cnablcd thc witncsscs to idcntily thc Appcllants through voicc and physical idcntity. 'Ihc light was also suflicicnt. 'l'he dcccascd had light from thc phonc and PW2 had light liom a torch. 25 - According to I)W4, whcn hc wantcd to drum to notily thc community about thc dcath o1'Mr Obitrc, hc was stoppcd by A3 on ground that thc pcoplc had rclirscd but the drums wcrc later hit after thc dcath of Mr Mandau ltcubcn. l'his was donc to lurc thc dcccascd into bclicving thcir trick. - ³⁵ Considcring thc tcst ol'propcr idcntilication sct out in Abdalla Nabulcrc (supra) there was propcr idcntilication olthc Appcllants by I'W2 and PW3.

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# s Ground two

### Submissions by counscl for thc Appcllants

Counscl rclicd on thc casc of Kiwalabye V Uganda SC API, NO. t43 of 2001 which was citcd in Kimera Zaverio V Uganda (COA CR APP NO. 427 OF 2014) and submittcd that thc said scntcncc o[ 30 ycars imprisonmcnt imposcd on thc 3'd Appcllant and thc scntcncc of 40 ycars imprisonmcnt imposcd on thc l't, 2nd, 4'h, 5'r'. and 6th, Appcllants by thc lrial iudgc was not only manil'cstl1, harsh and cxccssivc bu1 was handcd without rcgard to thc principlc ol'unilirrmity and proportionality which rcquircs that similar scntcnccs should bc imposcd on similar olI'cnccs which bcars similar lacts. l'hc scntcnccs arc thcrclorc out of thc scntcncing rangc lirr similar oll'cncc. Counscl praycd that this honourablc courl bc plcascd to rcvicw thc rcspcctivc scntcnccs ol'thc Appcllants as thcy don't conform to thc principlcs ol'unifbrmity.

Counscl submittcd that had thc lcamcd trial Judgc givcn duc considcration to thc compclling mitigating lbctors which wcrc rcadily availablc to the Appcllants, hc

20 could not havc imposcd such harsh scnlcnccs and thc said scntcnccs imposcd by thc trial judgc wcrc issucd in crror.

Counscl also submittcd on thc Sentencing Guidclinc 6(c) of the Constitution (scntencing guidelincs) Dircction, Lcgal Noticc No.8 of2018 whcrc couns arc cnjoincd to considcr thc nccd Ior consistcncy whcn scntcncing.

25 30 Counscl citcd cascs whcrc thc Suprcmc Court cmphasizcd thc nccd lbr unilbrmity in scntcncing whcn i1 hcld in Aharikundira Yusitina V Uganda SC Crim Appeal No. 27 of 2015 that it is thc duty ol'this court whilc dcaling with appcals rcgarding scntcncing, to cnsurc consistcncy with cascs that havc similar lacts. Consistcncy is a vital principlc of a scntcncing rcgimc. It is dccply rootcd in thc rulc ol' law and rcquircs that laws bc applicd rvith cquality and without unjustiliahlc di I I'crcntiation.

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- ⁵ In Mbunya Godfrey V Uganda SC Crim Appeal No. 004 of 2011, thc Suprcmc Courl subslituled a senlence for death for an Appellanl who hod killed his wife with a senlence of 25 years imprisonmenl,lurthcrmorc in Tumwesigye Anthony V Uganda CACA no. 046 ol2012, lhis hctnourable court substiluted a sentence of 32 years to one of 20 yeorsfor an lppellanl ,,pho was convicted ofmurder, and - also in Anyrvar Patrick V Uganda CACA No. 066 of 2009 a sentence of life imprisonmenl imposed on an Appellanl y,as substituted with one of l9 years and 3 month. Counscl invitcd court to cxcrcisc its powcrs undcr S 132(d) ol'thc'l'rial on Indictmcnt Act Cap 23 to vary and / or rcvcrsc thc trial court scntcncc and substitutc thc samc with a morc lcnicnt, consistcnt and uniform sentcncc of 20 10 - ycars' imprisonmcnt. 15

#### Submissions by counsel for the Respondent

Counscl submittcd that a highcr court will not intcrfcrc with a scntcncc of thc lowcr court unlcss it is illcgal or cxccssivcly harsh, as in thc casc ol-Aharikundira V Uganda, (supro) lhc court lurthcr slatcd thal intcrfcring with a scntcncc is not a mattcr ol'cmotions but rathcr onc of law. Counscl submittcd that thc scntcnccs to thc Appcllants wcrc lair and justificd in thc circumstanccs. 'l'hc Appcllants murdcrcd thc dcccascd in cold blood using pangas, an axc and clubs.

'l'hc murdcr was scnsclcss and could havc bccn avoidcd. 'I'hus, the honourablc court has conllrmcd harshcr dctcrrcnt scnlcnces whcn faced with cascs of ^a

- similar naturc. In Sunday vs Uganda, CACA NO. 103/2006 the court of appeal upheld a senlence of life imprisonment for a 35 year old convicl v,ho was a port of a mob that attacked a defenceless elderly woman until they killed her, additionally ln Ssckawoya Blasio SC Criminal appeal No. 24 OF 2014, rhe Appellont was intprisonedfor life for a premedilated murder of his three children 25 - and lostly ir Turyahabwc Ezra and 14 others vs, Uganda SCCA No. 50 of 2015, this honourable courl ond the Supreme Court upheld a life imprisonment senlence againsl some of lhe Appellants who were convicted of murder. 30

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⁵ Counscl thcn praycd lor dismissal of thc appcal and askcd court to uphold both thc conviction and scntcncc of thc lcamcd trial .iudgc.

## Considcration of Court.

It is now scttled law that lbr an appellate court to interfcrc with thc discrction of thc trial court while passing scntcncc, it must bc shown thal thc scntcncc is illcgal or foundcd upon a wrong principlc ol thc law, or whcrc thc trial court failcd to take into account an important matlcr or circumstancc, or made an crror in principlc, or imposcd a scntcncc which is harsh and manif'cstly cxccssive in thc circumslanccs. Scc: Kiwalabye Bernard vs. Uganda, Suprcme Court Criminal Appcal No. 143 of 2001. 10

- It has to be appreciated that cvcn in the prcscnce of thc sentcncing guidclincs scntcncing is at the discrction of court. 'l'his discrction is cxcrciscd in considcration of thc special lacts of cach casc. In Kaddu Kavulu Lawrence V Uganda SCCA No. 72 of 2018 the Supremc Court hcld that: 15 - "Counsel for appcllants prcscnted to courl rclatcd cascs whcrc thc appcllants wcrc sentcnccd 10 lcsscr imprisonmcnl tcrms and his vicw thc court olappcal ought to havc takcn thosc into considcration and givcn thc appcllant ^a somcwhat similar scntcncc. It is our vicw that an appropriatc scntcncc is tha matlcr lor thc discrction ofa scnlcncing cour1. liach casc prcscnts i1s own facl.s upon which a court cxcrciscs i1s discrction."

#### Guidelinc 6(c) of thc (Scntcncing Guidclines for Courts of . Iudicaturc) (Practice) Directions, 2013 providcs that: 25

"Every court shall whcn sentencing an offender takc into account thc nced for consistency scntencing an olfcndcr takc into lhe nced for consistency with appropriatc sentencing lcvcls and othcr mcans of dealing with offenders in rcspccl of similar offcnces committcd in similar circumstanccs"

Bashasha Sharif VS Uganda SCCA No. 82 of 2018, whcrc court nolcd that whilc upholding a dcath scntcncc "...one of the objectives of sentencing is deterrence. We agree that the manner in which lhe Appellanl killed an innocenl

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child and dismembered his body depicts a depraved person devoid of all $\mathsf{S}$ *humanity.*"

Turyahabwe Ezra & 12 others SCCA NO. 50 of 2015, the Supreme Court upheld a sentence of life imprisonment for a murder that arose out of mob justice.

Considering the facts of this case the deceased died defencelessly before the accused. The events towards the death of the deceased show that the Appellants 10 had premeditated this death. We are hesitant to interfere with the discretion of the trial judge.

We therefore that this Appeal lacks merit.

1. The Appeal is dismissed

2. The conviction of the lower court is upheld. 15

3. The sentence is also upheld.

We so order

$281$ Dated at Arua this.. $\overline{dav \text{ of }}$ .. $.2022$

MONICA MUGENYI **JUSTICE OF APPEAL**

**CHEBORION BARISHAKI JUSTICE OF APPEAL**

CHRISTOPHER GASHIRABAKE **JUSTICE OF APPEAL**