[2024] UGCA 215

### THE REPUBLIC OF UGANDA

,

I

### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

### CRIMINAL APPEAL NO. 0143 OF 2O2L

(Arising out of the Judgment and orders of His Lordship Moses Kazibute Ka uumi ,| at Masaka in Criminal Session No. 0163 of 2016)

#### AKANDWANAHO MOSES APPELLANT

#### VERSUS

# UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

#### CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR JOHN KIHIKA, JA

#### JUDGMENT OF COURT

The Appellant was indicted and convicted of the offence of murder contraqrto sections 188 and 189 ofthe Penal CodeAct and sentenced to 19 years and 1-month imprisonment.

The Appellant was dissatisfied with the decision of the trial court and filed an appeal on the following grounds;

- 1. The learned trial Judge erred in law and fact when he conducted the trial with improperly appointed assessors and occasioned a miscarriage of justice to the Appellant. - 2. The learned trial Judge erred in law and fact when he based the Appellant's conviction on the prosecution's evidence which was

marred with contradictions and inconsistencies which occasioned a miscarriage of justice to the Appellant.

- 3. The learned trial Judge erred in law and fact when he based the Appellant's conviction on insufficient circumstantial evidence which occasioned a miscarriage ofjustice to the Appellant. - 4. The learned trial Judge erred in law and fact when he relied on hearsay evidence to convict the appellant. - 5. The learned trial Judge erred in law and fact when he convicted the Appellant to 19 years and one-month imprisonment which was deemed manifestly harsh and excessive in the obtaining circumstances of the case.

#### Background

The background of this matter as discerned from the record is as follows;

On the 25th day of May, 2015, the deceased together with the Appellant and a one Rwamujo, who is still at large, congregated at Kyabagambi Trading Centre to take alcohol. The deceased together with the Appellant and Rwamujo later on left the Trading Centre together late in the night, but the deceased never returned home and his parents waited for him in vain. On 26th May, 2019, at or around OS:OOpm the deceased was discovered in Kitahira village lying unconscious in the bush. The police and the LCI Chairperson of the a.rea were informed. The deceased was taken to a medica-l center where he succumbed to his injuries.

Upon investigations, it was discovered that the deceased was last seen with the Appellant together with one Rwamujo. The premises of both Rwamujo and the Appellant were searched whereupon it was discovered that they had both fled their respective homes and a search for the suspects ensued. On 23'a September 20 15, the reserve force officer found the Appellant in a bar and he was arrested with the help of other village residents and charged with the offence of murder.

### Representation

At the hearing of the appeal, Mr. Turyahabwe Vincent on state brief and Mr. Kajwara Christopher on private brief appeared for the Appellant while Mr. Nahurira Jacob, State Attorney appeared for the Respondent. Both parties filed written submissions, which were adopted with leave of court as their legal arguments.

### Consideration of the appeal

This is a first appeal and the duty of this Court as a first appellate court is to re-evaluate the evidence, weighing conflicting evidence, and reach its own conclusion on the evidence, bearing in mind that it did not see the witnesses testify. (See Pandya a R [1957] EA p.336 and Ktfamunte Henry u Uganda [1998] UGSC 20

In the latter case, the Supreme Court held that;

"We agree that on a first appea| from a conuiction bg a Judge the appellant is entitled to haue the appellate Court's own consideration and uieuts

of the euidence as a whole and its own decision thereon. The first appellate court has a duty to reuiew the euidence of the case and to reconsider the materials before the tial judge. The appellate Court must then make up its oun mind not disregarding the judgment appealed from but carefullg weighing and consideing it.'

These principles have been borne in mind as we resolve this appeal. In considering the appeal, we shall consider ground one separately, and grounds two, three and four together.

### Ground one

## Appellant's submlsgions.

Counsel relied on Sections 65, 66 and 67 of the Trial on Indictments Act and submitted that there was no record as to how the assessors were selected, their particulars or details of whether the Appellant had an opportunity to object to the assessors. Counsel further submitted that whereas there was no express provision of the law that an appellant person be given an opportunity to object to any assessor, it was a sound practice that should be followed. Additionally, counsel argued that the assessors in this case made a joint opinion which was an irregularity and contrar5r to the law which required each of the assessors to indicate to be of the same opinion.

#### Respondent's submissions.

In reply, counsel submitted that the learned trial Judge properly appointed the assessors and there was no miscarriage of justice.

Counsel submitted that the record clearly showed that the court appointed assessors took oath prior to the commencement of the trial. In addition, Counsel submitted that the assessors gave a joint opinion which was read out by one of the assessors and was not even considered by the learned trial Judge. Counsel argued that the omission of seeking the Appellant's opinion on the appointed assessors was not fatal to the proceedings and did not occasion a miscarriage of justice.

## Consideration of ground one

The Appellant faults the learned trial Judge for having omitted to seek for the Appellant's opinion on the assessors. The Appellant's counsel relied on the decision in Ndirangu s/o Nyagu vs. R. (1959) E. A. 875 in which it was held that though there is no express provision in the law that an appellant be given opportunity to object to any assessor, to do so was sound practice which should be followed.

This court held in Bganthanga Fodorl a Uganda [2OO4] UGSC 24 as follows;

"Regarding Mr. Emesu's first submission on this matter that the appellant was not giuen opporfitnitg to object or challenge the assessors, it was held in similar circumstances in Ndlronqu s/o Nuasu us. R. (79591 E. A. 875 that though there is no express prouision in the law that an appellant be giuen opporfitnity to object to any assessor, to do so uras sound practice which should be followed. Howeuer, in the irstant case, the appellant who uas

represented bg counsel did not request for the opportunitg to make such objection. In our uiew, his failure to object did not occasion to him ang prejudice and since it utas not mandatory that the opportunitg must be giuen, we find no reason to disturb th.e judgment of the learned trial judge on that account alone."

In the instant case, we note that the appellant did not request for the opportunity to make such objection to the assessors. The Appellant, that had legal representation, did not object to the assessors and as such, no injustice was occasioned to him. We therefore find no reason to fault the decision of the learned trial Judge and as such, ground one fails.

## Grounds 2, 3 and.4

#### Appellant's submissions

Counsel submitted that the prosecution evidence was marred with contradictions and inconsistencies and such evidence ought to have been rejected by the trial Judge. According to Counsel, the major contradiction in the prosecution evidence was the evidence of where the Appellant used to reside at the time the offence was committed. Counsel argued that James Seyanga, PW3, stated that the Appellant used to reside with his mother in the next village while Kiwanuka Steven, PW4, testified that the Appellant used to reside in the next village. Counsel argued that the discrepancy in the place where the Appellant stayed was a major contradiction since the Appellant's residence was an issue in contention.

Counsel argued that the prosecution case heavily relied on circumstantial evidence and had so much to do with where the Appellant was residing at the time the crime was committed. Counsel submitted that the Appellant was alleged to have escaped from the village in which he was residing, which pointed to conduct of an appellant person after an offence has been committed. Counsel additionally submitted that the prosecution's evidence regarding the time the offence was committed was also contradictory. Counsel argued that the circumstantial evidence in this case was not sufhcient to sustain a conviction against the Appellant.

Counsel submitted that the learned trial Judge relied on hearsay evidence of Gladys Mbabazi, PW5, to convict the Appellant. Counsel relied on Section 59 of the Evidence Act to submit that oral evidence must be direct and as such, the evidence of PWS referring to one Nuunu who heard the deceased say that the Appellant together with others were killing him, was hearsay evidence and ought not to have been relied upon by the trial Judge.

### Respondent's submissions

In reply, counsel submitted that the contradictions of where the Appellant used to reside at the time the offence was committed were minor contradictions that did not go to the root of the case. Counsel relied on the decision in Candlga Vs Uganda (Crtmlnal Appeal No. 23 of 2012) [2016] UCiCA 79 for the proposition that not every inconsistency will result in the witness' testimony being rejected. Counsel submitted that PW4 was a credible and truthful witness

whose evidence should not be rejected. That whereas there was no direct evidence on record implicating the Appellant, the facts are incompatible with the innocence of the Appellant and incapable of explanation other than the inference of guilt.

# Court's Consideration of grounds 2, 3 and,4

Under these grounds, the learned trial Judge is criticized for hrstly relying on contradictory evidence, secondly relying on insufficient circumstantial evidence and lastly relying on hearsay evidence to convict the appellant.

We agree with the submissions of Counsel for the Appellant that the prosecution evidence was wholly circumstantial. Circumstantial evidence, relies on inference and assumptions to support ^a conclusion. In Mureebq. and. Otlrcrs a Uganda [2006l UGSC 7 tlre Supreme Court of Uganda while discussing circumstantia-l evidence had this to say;

"Generally, in a ciminal case, for circumstantial euidence to sustain a conuiction, the circumstantial euidence must point inesistiblg to the guilt of the appellant. InR. Vs. Klpkertng Arap Koske and Anotlur (1949) 76 EAU.735 it was stated that in order to justify, on circumstantial euidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the appellant and incapable of explanation upon any ottrcr reasonable hgpothesis than that of guilt. That statement of the law was approued by the E. A. Court of Appeal in Slmon Musoke Vs. R. (7958) DA 775"

In the case of findlgutlhurq Mbahe us. Uganda S. C. CrIm. Appeal No. 9 oJ 7987, Court issued a warning that circumstantial evidence must be treated with caution, and narrowly examined, because evidence of this kind can easily be fabricated. Therefore, before drawing an inference of the appellant's guilt from circumstantial evidence, there is compelling need to ensure that there are no other co-existing circumstances which would weaken or altogether destroy that inference.

It must, however, be noted that just because the evidence is not direct does not mean it is less credible. Many cases are built solely on circumstantial evidence and have resulted in convictions.

The major complaint raised by Counsel for the Appellant is that tJle learned trial Judge relied on insufhcient circumstantia-l evidence to convict the appellant. Given that that the prosecution evidence was wholly circumstantia-l, it is necessary to review this evidence in order to establish whether or not the prosecution proved its case beyond a reasonable doubt.

Steven Kiwanuka, PW4, testified that the Appellant was known to him and that he used to reside in Kitahiira village. On 25th May 20 15, PW4 came to Kitahiira trading center at about 6: 3Op.m to buy necessities. He met Rwamujo with the Appellant and the deceased at the shop. PW4 firrther testified that he however went home but at 1:00 pm, he heard Rwamujo telling the deceased that they should use the main road but the deceased insisted they use the one in the field. PW4 testified that he did not come out of the house. Taking pause for a minute, we are of the view that PW4's testimony with regard to the timings of the day does not make sense. His testimony that he met Rwamujo with the Appellant and the deceased at the shop at 6.30pm and that he later went home at 1.00pm where he heard Rwamujo and the deceased argue, does not add up. One can only assume that there must have been a mistake on the record. If PW4 met Rwamujo with the Appellant and the deceased at the shop at 6.30pm, he could not have returned to his home at the earlier time of 1. O0pm. It would therefore be safe to assume that PW4 testified that he returned to his home at 1.0O am at which point he heard Rwamujo and the deceased arguing.

Back to PW4's testimony, the next day, he heard that the deceased had been found dead. At page 12 of the Record of Appeal, PW4 testified as follows;

"The next dag a man came saging somebodg was killed from his farm. The chairman told us to go and bury. It utas Bgamukama with one eAe damaged. He was taken to hospital uthere he died from the following daa.

The deceased utas found about 2 miles from where I heard him talking with Rwamujo. It utas not clear to me uhether they used the road to the plaging fi"eld. The bodg uas in the direction of Rutamujo's home. The appellant was on the other side of the uillage with a different chairman. The appellant and Rutamujo disappeared from the uillage from that time. I do not recall uhen he was arrested. That is all."

The testimony of PW4 seryes to place the Appellant in the company of Rwamujo and the deceased at or about 6.30pm. The testimony, however, is not clear as to whether the Appellant was in the company of Rwamujo and the deceased at 1. OO am when PW4 heard the two arguing. PW4's testimony on this point was as follows;

"On 25/ O5/ 2015, I came to Kitahiira trading center at qbout 6:3Op.m to bug necessities.

I met Rwamujo with tlrc appellant and Bgamukama at ttLe shop. Rwamujo hold a bottle of waragi. I went home but at l:OOap'm, I Rutamujo Bgamukama that theg use the main road. Bgamukama insisted that theg use the one through the field. I did not go out of the hottse"

It is important to point out that PW4 heard Rwamujo and the deceased talking to each other while he (PWa) was in his house. PW4 did not go out of the house. We are therefore not certain as to whether or not the Appellant was, at the time, still in the company of Rwamujo and the deceased.

The evidence of PW4 is crucial as it relates to "the last seen doctrine" which has global application to homicides. This doctrine, was discussed in the persuasive authority of TaJudeen lltgasu Vs Tltc State SC 247/2073, which held as follows;

".....the last seen doctine creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibilitg for his or her death.... Thus where an appellant person

uas the last personto be seeninthe compang of the deceased person, theg haue the dutg to giue an explanation relating to how th.e latter met his or her death. In the absence of such explanation, a trial court .....will be justifi.ed in drauing the inference that the appellant person killed the deceased person".

## See also Jogenda o Uganda (Crlmtnal Appeal .l\Io. I of 2071) [2022] UrcA 25.

It however has to be noted that the "last seen" principle alone is insuffrcient to establish guilt; it must be corroborated by other circumstantial evidence. It gains further credibility for the prosecution only when the appellant fails to provide a satisfactory explanation for the final moments of interaction with the deceased, including details of their separation, the time interval between their parting, and the estimated time of the victim's death, whether due to natural causes or violence. See Ismcil Vs the Sto'te quoted in Criminal Evidence in Nigeria by ,fide Bodede 2nd Edltton (at uttrlut.lawfeild lautgers.com)

In the instant case, the deceased was last seen with the Appellant and Rwamujo in Kitahiira trading center at about 6:30 pm by PW4. PW4, later heard Rwamujo and the deceased arguing about which route to take at or around 1.00 am. The deceased was later found at a farm seriously injured and subsequently died from the said injuries. Rwamujo thereafter disappeared and has never been found ever stnce.

Going by the "last seen doctrine", the only other person available to give some explanation would naturally be the Appellant who was last seen with the deceased at 6.30 pm. The Appellant, in his defense, instead denied having been in the company of the deceased and set up an alibi. His testimony, which can be found at page 14 of the Record of Appeal, was as follows;

"I am Moses Akandutanaho. I am 27 gears, I reside at Mulubii uillage, Rushozi sub-countg in Kgankuanzi distict, I was a farm manager at Charles Asiimwe's farm. I had worked there from 2015- 2016.

On 26/O5 /2015, I utas at KgankuaruL I had not knoun Bgamukama. I did not know Kyeganga the chairman. I did not know PW4 or PWS, Gladg's Maia.

I lwue neuer stayed at Mitima village. My father staas at Bugobe , Ntuusi Subcountg in Semabbule Dstict.

I knouL nothing about this case. I was arrested from Bugobe uillage in September 20 1 6. At the time of arrest, I was at home, no longer a farm manager.

That is all."

The Appellant's testimony amounts to a total denial that he was seen in the company of the deceased at 6.30pm on the 25/05/2015 by PW4 and that he was instead in Kyankwanzi District on the 26/O5/2015. The learned trial Judge did not believe the Appellant's account. The learned Judge in his judgment at page 24 of the Record ofAppeal stated thus;

"The appellant in his euidence told court that he used to return to Bugobe

from his tuork place euery three or four months and he had reported on the 24tn January 2O15. Bgamukama was assaulted on the 25th Mag 2O15 uhich squarelg fits within the four months period the appellant took the break from work.

^Ifind that bg his own euidence the appellant placed himself autaA -from Kgankwanzi which lends credence to the euidence of Pu4 raho sana him with the deceased and Rwamojo at Kitahiira trading center. The denial that he did knoul uthere Kitahiira village is located and that he did not know all the prosecution witnesses only points to his guilt.

Lies told bg an appellant person can onlg be interpreted to support the ciranmstantial euidence against him or her. Blrembo sebost,lo,n & Another u Uganda. sccA No'2O/2OO7'[2OO7-2OO5] HCB 4."

We are inclined to agree with the trial Judge that the Appellant was not entirely truthful in his testimony. His assertion that he was not known to either PW3 and PW4 is not true. PW4 testified that he knew the appellant. He stated thus, at the beginning of his testimony;

"I am 53 gears old. I am a famer, residing at Kitahiira village, Mitiima Subcountg in Sembabule district I know the appellant as a resident of our uillage for about 6 gears. I knew his home but the father shified to Bugobe village. At the home he was arrested he utas staying at Bugobe in Sembabule Distict. About 8 miles from Kitahiira uillage."

James Seyanga, PW3, on the other hand in part testified as follows;

"I AM James Seganga. I am 67 gears old. I am a farmer residing at Kitahiira A, Migima sub-countg in Sembabule distict.

I am the LCI Chairman for 2ogears. I tuas also the Chairman in 2O16.

I kneu.t Bgamukama George as a friend and residence in mg cell The father is my neighbor. He is nout dead.

I utas called as the clwirman about 26/ O5 / 2016 bg John Mushama, he reported that a person was called from his farm but he did not recognize.

I called 2 people I moued with to the farm. We found it was Bgamukama still there but do not heqr or talk. An ege utas missing teeth utere missing on the bodg were injuies on the legs and arms.

I sent somebodg to the trading center to call people to help us to take him to Sembabule Hospital. At about 12.00 noon, he died on the following daq...........

The appellant was anrested in a different uillage afi.er a while. I was told he ruas asslsted because Bgamukama was died.

The appellant used to stag with his mother in the next uillage. He twd been comimg to the trading centre before Bgamukama died. I did not see him the dag Bgamukama died. I did not see the appellant around afi.er the deathuntil I heard of his anest.

I knouL Rwahujo. He was a co- suspect with the appellant. I do not know how he utas an-rested. He disappeared from the utllage to date."

Both witnesses testified that they were both residents of Katahiira Village. PW4 testihed that the appellant resided in the village for six years until his father moved to the Bugobe village. PW3 testified that the appellant used to stay with his mother in the next village from where he was arrested.

When the testimonies of PW3 and PW4 are compared it becomes apparently clear that both witnesses knew the appellant person. PW3 testifred that the appellant used to visit the trading center. PW4, as stated before, testified that he saw the appellant with the deceased at the trading center. Their testimonies as to their knowledge of the appellant person were not challenged in cross examination. The only conclusion is that the appellant lied to the court during his testimony. This in our view served to cast doubt on the testimony of the appellant and in so doing the prosecution evidence rebutted the appellant's alibi.

In our view, the trial court was therefore justified in drawing the inference that the appellant person killed the deceased person given that the evidence of PW4 places the appellant with the deceased at 6.30 pm on the 25/05/2015 only to turn up fatally injured on the 26/05/20ts.

We are however alive to the fact that the "last seen" principle alone is insufficient to establish guilt; it must be corroborated by other circumstantial evidence. The issue to determine is whether there was indeed corroborative evidence presented by the prosecution.

It has long been settled that the disappearance of an appellant person from the area of a crime soon a-fter the incident may provide corroboration to other evidence that he has committed the offence.

PW3, as has already been noted, testified that the appellant was not seen at all at the trading center after the deceased's death although he used to frequent the place prior to the demise of the deceased. On the other hand, PW4 during his testimony testified as follows;

"The appellant and Ruamujo disappeared from the uillage from tlwt time. I do not recall when he taas arrested."

The testimony of PW3 and PW4 speaks to the conduct of the appellant after the demise of the deceased. We consider it to be corroborative evidence of the appellant having been seen with the deceased person prior to the death of the victim and therefore supportive of the inference that the appellant person was guilt5r.

The learned trial Judge in his judgment pointed this out when he stated as follows;

"It was also not denied that the appellant and Rwamojo disappeared from the uillage coincidentallg soon afier the death of Bgamukama uith uhom they had been seen on the night he was assaulted. lt has been h.eld that disappearance afier suspicion of commission of an offence giues the inference of guilt."

It has been argued by Counsel for the Appellant that the evidence of PW3 and PW4 relating to the disappearance of the Appellant was

contradictory arrd that the trial Judge should not have relied on it to convict the Appellant. We do not agree.

PW3 testified that the Appellant used to live with his mother in the next village from where he was arrested. PW4, on the other hand, testihed that the Appellant stayed in Katahiira Village for six years untit his father moved to the Bugobe village. Looking at both testimonies, one can be allowed to infer that the Appellant lived in the village next to Katahiira Village and that village was called Bugobe.

We thus find that there was no contradictory evidence given in this instance. Both witnesses ultimately gave similar testimony as to where the Appellant was staying at the time of commission of the crime. Their testimony in effect is harmonious as to the fact that the Appellant, at the time of the death of the deceased, was not living in Katahiira village. Their testimony was also similar with regard to the disappearance of the Appellant after the death of the deceased.

The law on contradictions and inconsistencies is well settled. Major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away. Minor ones, on the other hand, will only lead to rejection of the evidence if they point to deliberate untruthfulness on the part of the witness- see Nfred TaJar vs Uganda E. A. C. A Cr. Apped NO. 167 of 1969 (unreported); Sarapio Tinkamalirse vs. Uganda, Cr. Appeal NO.27 of 1989 (SCf and Twinomugisha Alex and 2 others Vs. Uganda, Cr. Appeal No. 35 of 2Ofil (SCl. Bearing the aforementioned principles in mind, we find that there was no major contradictory evidence given by PW3 and PW4 with regard to where the Appellant resided at the time the offence was committed and with regard to his disappearance after the death of the deceased. This evidence could therefore be relied upon as corroborative circumstantial evidence. We thus find that the tria-l Judge did not rely on contradictory evidence to convict the Appellant.

T\rrning to the complaint that the trial Judge relied on hearsay evidence to convict Appellant, we are of the view that Counsel's argument may have merit.

The evidence relied upon by the prosecution was the testimony of Gladys Mbabazi PWS, the deceased's mother. We hnd it necessa4r to reproduce the evidence of PWS who testified as follows;

. PWS: (Sutom) GLADYS MBABAZL 55 gears old, house wife, residing at Kamushabe uillage, Lwamitima paish" Sembabule distict.

I kneu Bgamukama as mA son. He is dead. He utas murdered bg the appellant and other people in Mag but I forget tle year.

He was a teacher. We uaited for him but could not see him. TTte following monting, u)e u)ere told his bodg was in a bush. I saw him in the hospital, close to death. He could not talk, injured all ouer the body, ege remoued. We buied him on the following midday.

People who heard him making an alarm said he was assaulted.

A man called told me that he heard Byamukama the names of Shali, the appellant and Rutamujo saging they are killing him.

Nuunu heard them at about 1:)Op.m or 2:OOp.m. He was in some one's home but the three were in a farm. Nunu had spent home in the uillage and knew all the three. Nunu told me afi.er the buial. The appellant and Rwamujo disappearedfromthe uillage, they did not bury Bgamukama. Then appellant taas qrrested afier some months from Bugobe uillage near our uillage. The appellant is suspected to haue assaulted the deceased.

I do not know the reason.

Cross- Examination.

I had neuer knoun the appellant but I used to see him in the trading center. I had neuer seen him with mA son. I know Kiwanuka. He is different from Nuunu. I knew Rwamujo. I had neuer seen him with mA son.

Nuunu shified. That is all."

The learned trial Judge relied on the evidence of PWS to refer to the statement of one Nuunu who apparently heard the deceased at about 1:OOpm sayrng the Appellant and others were going to kill him. We are of the firm view that the alleged statement of Nuunu is hearsay evidence. The prosecution, in order to bolster PW5's testimony, ought to have produced this Nuunu to testify to that fact and re-state the same evidence first hand as was narrated to PWS. The prosecution did not do so.

Sections 58 and 59 ofthe Evidence Act provide the general rule on the admissibility of hearsay evidence. Section 59 provides that oral evidence must in all cases be direct. Whatever that is not direct is hearsay and therefore not admissible as direct evidence is the best evidence. It is a principle of common law that hearsay evidence which is incapable of being tested by cross-examination to determine its veracity is thus not admissible, unless corroborated by other evidence, to determine the guilt of an appellant person.

In the instant case, there was no direct oral evidence of Nuunu testifying as to what the deceased had been heard saylng before he was killed. The learned trial Judge, at page 23 and 24 of tt:,e Record of Appeal, however, relied on the evidence of PW5. He stated as follows;

"PWS utas not challenged on what she utas told by NUNU who linked the assault on the deceased to the appellant and Ruamojo on the night that put4 had seen them at Kitahiira trading center.lt was also stated tlnt NUNU heard the calls for help from a farm and Bgamukama was foundlging unconscious in Mushama's farm."

The trial Judge clearly relied on the testimony of PW5 insofar as he accepted her testimony which was based on information availed to her by Nuunu. This was hearsay evidence that ought not to have been admitted. We thus hnd that this was a misdirection on the part of the trial Judge. Ground 4 therefore succeeds.

## Ground 5

The learned trial Judge in ground 5 is criticized for having convicted the Appellant to a prison term of 19 years and one-month, which sentence was deemed to be manifestly harsh and excessive in the obtaining circumstances.

Counsel for the Appellant did not, in his written submissions, address the Court on this ground. We had initially taken the position that this ground had been abandoned and thought it unnecessaqr to address it. Counsel for the Respondent however chose to canvass this ground in his submissions. We shall thus consider the Respondents submissions in ground 5.

Counsel for the Respondent submitted that the sentence of 19 years and one-month imposed on the Appellant was neither harsh nor excessive. Counsel argued that the sentence was actually lenient given the nature of the offence and manner in which it was executed.

Counsel further submitted that the trial Judge considered both the mitigating and aggravating factors before sentencing the Appellant. Counsel also submitted that the sentence that was imposed was below the sentencing range provided by the Constitution (Sentencing Guidelines for Court of Judicaturel (Practice) Directions 2(J13. Counsel submitted that the starting point in sentencing for both murder and aggravated robbery is 35 years and the maximum is death.

Finally, Counsel cited the case of Klutalabge Benard. Vs Ugdnda, Crlmlnal Appeol No. 743 of 2OOl for the proposition that an appellate Court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on sentence unless the exercise of its discretion is such that it results in the sentence imposed to be manifestly excessive or low as to amount to ^a miscarriage of justice.

## Court's Consideration of Ground 5

For this Court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that any one or more of the factors below exist: the sentence is illegal, the sentence is harsh or manifestly excessive, there has been failure to exercise discretion, there was failure to take into account a material factor and an error in principle was made.

See: Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2OL4; Kyalimpa Edward Vs Uganda, Supreme Court Criminal Appeal No. 1() of 1995; I{amya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of 2OOO; and Kiwalabye Bernad Vs Uganda, Supreme Court Criminal Appeal No. 143 of2OO1.

Further, the court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See: Ogalo S/O Owoura Vs Republic [1954] 24EAc. A27O.

The sentencing order of the trial court was as follows;

"It is tnte that the conuict is a young person who can reform and be useful to his familg and the communitg he comes from.

He has also spent 3 gears, 11 months in custody. I found those to be the onlg mitigating factors.

Murders are rampart and the sanctitg of life should be protected. The conuict u.tas a friend to the deceased whom he should haue protected but not assaulted.

The offence of murder carries death as the ma-ximum penalty. This houteuer is reserued for the rest ofthe rare cases not like the present case. A qtstodial sentence would suffice.

I sentence the convict to 23 gears. I will deduct the 3 years, 11 months the conuict has spent on remand, he uill serue 79 Aears, 7 months from the 18.08.2020."

In this case, the Appellant was charged with the offence of murder. The maximum penalty for the offence of murder under section 188 and 189 of the Penal Code Act is death. We find that the sentence of 19 years and one-months' imprisonment was in fact below the sentencing range provided for by the Constitution (Sentencing Guidelines for Court of Judicature) (Practice) Directions 2O13. Furthermore, in previous cases, courts have meted out similar or more severe sentences for the offence of murder.

We are also alive to the principle of uniformity and consistency in sentencing which we are required to comply with. See: Sentencing

Principle No.6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 - Legal Notice No.8 of 2013, and Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015.

In Bakubuye Muzamiru & another Vs Uganda, Criminal Appeal No. 56 of 2015, where the Supreme Court considered a 40year sentence for the offence of murder to be neither harsh nor excessive and confirmed it. In **Florence Abbo vs Uganda, Criminal Appeal No. 168 of 2013** this Court upheld a 40year sentence for the offence of murder.

In the circumstances, we find that the learned trial Judge did not deviate from the sentencing trends for the offence of murder. We find that the learned trial Judge diligently considered the appellant's mitigating and aggravating factors and deducted the period spent on remand. The sentence imposed was neither harsh nor excessive and we find no reason justifying interference with the sentence imposed by the learned trial Judge. We, therefore, uphold the sentence.

In conclusion therefore, we find no merit in the appeal and hereby dismiss it.

Delivered and dated this $\frac{1}{6}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$

ARD BUTEERA **Deputy Chief Justice**

mis $\mathbf{C}$ CHRISTOPHER GASHIRABAKE

**Justice of Appeal**

OSCAR JOHN KIHIKA<br>Justice of Appeal $\angle$ ..