[2021] UGCA 190

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT JINJA CRIMINAL APPEAL NO. 357 OF 2017

(Coram: Elizabeth Musoke, Cheborion Barishaki and Hellen Obura, JJA.)

# AKWARI JOSEPH::::::::::::::::::::::::::::::::::::

## **VERSUS**

### **EXAMPLE 2017 EXPONDENT UGANDA :::::::::::::::::::::**

(Appeal from the decision of Hon. Justice Batema N. D. A holden at Soroti High Court Criminal Session Case No. 72 of 2013 delivered on 2/05/2017)

## **JUDGMENT OF THE COURT**

#### Introduction 15

This is an appeal against the decision of the High Court at Soroti (Batema, J) by which the appellant was convicted of the offence of murder and sentenced to 29 years' imprisonment.

## **Background to the Appeal**

The background facts as ascertained from the court record are that on 8/04/ 2010 at around 9:00pm while Osia Tom (PW1) was having super, Inyait (the appellant's daughter) came in $\overline{20}$ running and making an alarm that her father (the appellant) was assaulting her mother (the deceased). On reaching their home, PW1 found the appellant assaulting the deceased and she had sustained injuries on the neck and head. Olinga David (PW2) also responded to the alarm and he also found the appellant assaulting the deceased. Both PW1 and PW2 carried the deceased into her hut and when she gained consciousness they went back to sleep. During the night, the deceased died and the appellant was arrested and charged with the

offence of murder. He was tried, convicted and sentenced to 29 years' imprisonment.

- Being dissatisfied with the decision of the learned trial Judge, he appealed to this Court $\mathsf{S}$ against both conviction and sentence on the following grounds: - 1. That the learned trial Judge failed to evaluate the evidence on record thereby arriving at wrong and unjust conclusions occasioning a miscarriage of justice against the appellant. - 2. That, in the alternative, the learned trial Judge erred in law and fact when he passed a sentence of 29 years' imprisonment upon the appellant, which is illegal, harsh and excessive thereby occasioning a miscarriage of justice.

## **Representation**

At the hearing of this appeal, Mr. Kumbuga Richard represented the appellant on State Brief while Ms. Barbra Masinde Chief State Attorney from the Office of the Director Public Prosecutions represented the respondent. The appellant was not physically present in court, 15 due to the challenge of the Covid 19 pandemic and the Standard Operating Procedures (SOPs) given by the Ministry of Health which prohibit among other things crowding in one place. However, he was facilitated to attend the proceedings from prison using zoom technology. Both parties, with leave of court, filed written submissions which have been considered by this Court.

### Case for the appellant

On ground 1, counsel submitted that the ingredient of malice aforethought was not made out and that it was erroneous for the learned trial Judge to decide otherwise hence occasioning a miscarriage of Justice. He argued that the learned trial Judge in his judgment did not pronounce himself well on the aspect of malice aforethought and he only alluded to certain aspects of the case. Counsel pointed out that the law on what constitutes malice aforethought was settled by the Supreme Court in *Mumbere Julius vs Uganda*; Supreme Court Criminal **Appeal No. 15 of 2014** and its elements are well set out under section 191 of the Penal Code Act. He also added that existence of malice aforethought is not a question of opinion but of

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#### fact to be determined from the available evidence as was reiterated by this Court in *Nadudu* $\mathsf{S}$ Grace & Another vs Uganda; Criminal Appeal No.4 of 2009.

He contended that other than the post mortem report which revealed that the injuries found on the deceased were most likely inflicted by clubs or sticks, the prosecution relied on the evidence of PW1 who never witnessed the incident and PW2 who partly witnessed it but could not describe the stick which was used to beat the deceased.

Counsel further submitted that the stick used by the appellant on the deceased was of a regular size incapable of causing injuries of a nature that can result into death. He added that the nature of injuries inflicted upon the deceased were not of a grave nature as to cause death. He argued that the injuries that would ordinarily cause death would be deep cut wounds and lacerations. Counsel invited court to examine the post violence handling of the deceased and think of it as the immediate cause of death and not necessarily the beating inflicted by the appellant. He also invited court to critically examine the circumstances surrounding the assault that resulted into the deceased's death as per the evidence of PW1 and PW2.

- He submitted that had the learned trial Judge addressed his mind to these observations and 20 the law governing the ingredient of malice aforethought, he would have arrived at the conclusion that it was merely a domestic brawl with the appellant having no intention, motive or premeditation to cause the death of his wife. In conclusion, he contended that since the ingredient of malice aforethought was not proved by the prosecution, the learned trial Judge - should have convicted the appellant of manslaughter as opposed to murder. 25

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Regarding ground 2 on sentence, counsel submitted that the learned trial Judge did not conduct any allocutus and this denied him an opportunity to take into account any mitigating factors available to the appellant thereby arriving at an illegal, harsh and excessive sentence.

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He relied on the case of *Otim Fustino vs Uganda; (Criminal Revision Case No. 4261/2010)* $\mathsf{S}$ and submitted that in the absence of an allocutus the sentence arrived at by the learned trial Judge was malicious, spiteful and illegal.

Counsel further submitted that the sentence of 29 years imprisonment that was imposed on the appellant was harsh and excessive and that had the learned trial Judge addressed his mind to both the aggravating and mitigating factors and the principle of uniformity of sentence. he would have arrived at a more lenient sentence. He relied on the cases of **Aharikundira** Yustina vs Uganda; Supreme Court Criminal Appeal No. 27/2005 and Epuat Richard vs **Uganda; Criminal Appeal No.0199/2011** to support his submission. Counsel prayed that without prejudice to the other ground of appeal, this Court substitutes the appellant's sentence with a fairer and more lenient sentence of 12 years bearing in mind the time the appellant has spent and served in lawful custody.

## **Respondent's case**

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In reply, counsel opposed the appeal in part and supported part of the decision of the trial court. On ground 1, she submitted that the learned trial Judge set out the ingredients of the offence while summing up to the assessors at page 18 paragraph 2 and in his Judgment at page 20 of the court record. She also added that the learned trial Judge was very much alive to what was required to prove malice aforethought and he found that all the ingredients for the offence of murder had been proved by the prosecution.

Counsel further submitted that there is also the evidence of PW1 and PW2 who both testified that they responded to an alarm by Inyait and found the appellant assaulting the deceased 25 with a stick. She contended that PW1 and PW2's testimonies were consistent with the medical report which showed that the deceased succumbed to the injuries which had been inflicted using clubs or sticks. Counsel submitted that the weapon used which was a stick as well as

the parts of the body to which the injuries were inflicted, that is the neck and the head and the $\mathsf{S}$ fact that the appellant repeatedly beat up the deceased until when she was weak and unconscious are sufficient to prove malice aforethought.

She conceded that the stick was not exhibited and submitted that there is no burden on the prosecution to prove the nature of the weapon used in inflicting the harm which caused death but all that is required is for the prosecution to adduce evidence giving a description of the weapons and injuries found on the victim, which would be sufficient to prove the object used. He relied on the cases of S. Mungai vs Republic; (1965) EA 782 at Page 787 and **Mutesasira Musoke vs Uganda; SCCA No. 17 of 2009** to support her submission.

Further, that the appellant's argument that the weapon used was a regular sized stick incapable of causing injuries which result in death is conjecture and not borne out of evidence $15$ and also the submission that injuries that would ordinarily cause death in the circumstances would be deep cut wounds and lacerations, has no legal basis and should be rejected. She also added that no evidence was led to show that the 'post violence handling' of the deceased was the cause of her death. She prayed that the appellant's conviction be upheld.

In response to ground 2, counsel conceded that there is no indication that the proceedings in 20 mitigation were conducted by the learned trial Judge before imposing the sentence which was in contravention of the sentencing regime requirement established post the decision in Attorney General vs Susan Kigula & 417 Ors; Constitutional Appeal No.3 of 2006 and the provision of the **Law Revision** (Penalties in Criminal Matters) Miscellaneous (Amendment) Act 2019 which encourage mitigation of sentence. She prayed that the 25 sentence be set aside and this Court invokes its powers under section 11 of the Judicature Act to impose a fresh sentence. In aggravation of sentence, counsel submitted that the offence of murder attracts a maximum sentence of death, the appellant assaulted the deceased who was an adult and caused her humiliation and embarrassment to the point of

killing her, he deprived her of life in a senseless manner and orphaned Inyait (their child). $\mathsf{S}$ Further, that there is an increase in violence against women and girls and courts need to promote, protect and enhance human rights in line with domestic and international obligations. A deterrent sentence was prayed for.

## **Resolution of Court**

As a first appellate court we are enjoined to re-evaluate the evidence on record and come to 10 our own conclusion on findings of fact and law. See; Rule 30(1) of the Rules of this Court and the Supreme Court decisions in Kifamunte Henry vs Uganda, SCCA No. 10 of 1997 and Bogere Moses vs Uganda, SCCA No. 1 of 1997.

We have carefully studied the court record, the submissions of both counsel and the authorities cited to us. We shall proceed to determine the grounds of appeal as argued by 15 counsel for the appellant.

On ground 1, the appellant faults the learned trial Judge for failing to evaluate the evidence on record thereby arriving at wrong and unjust conclusions which occasioned a miscarriage of justice. We note that in arriving at his conclusion to convict the appellant, the learned trial Judge took into consideration the evidence of PW1 and PW2 which was relied on by the prosecution. We shall re-evaluate the evidence of PW1 and PW2 to determine whether the learned trial Judge arrived at a wrong and unjust conclusion as contended by the appellant.

PW1 testified that on 8/04/2010 at around at 9:00pm he was at home having supper when Invait came running and making an alarm that her father, the appellant, was assaulting her mother, the deceased. He went back with her and on reaching there, he found the appellant assaulting the deceased using a stick. Using a flash light, he observed and saw that the deceased had sustained injuries on the neck and the head and she was unconscious. He told the appellant not to beat the deceased again and with the help of the other people who had

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- responded to the alarm they carried the deceased into the house. When the deceased gained $\mathsf{S}$ consciousness, he left and went back to his home. The following morning as he was going to tie oxen to go and plough, he met Atim Immaculate (the appellant's 2^nd wife) who informed him that the deceased had died in the night. In re-examination by the court, PW1 testified that the appellant used a dry stick to beat the deceased. - PW2 testified that on 8/04/2010 while at the appellant's home, a fight ensued between the 10 deceased and Atim Immaculate whereupon PW2 separated them and after they had calm down, he went back to his grandmother's home. While there, he heard Inyait making an alarm and he responded to it. He found the appellant chasing the deceased and when he caught up with her, he dragged her back home and told her to lie down. The appellant then picked - his stick and started beating the deceased on the back and head until she became weak. 15 Thereafter, he, together with PW1 took her into the house and he went back home to sleep. The following morning, he heard that the deceased had died. In cross examination, PW1 stated that by the time the deceased was taken inside, both her back and head were swollen.

When the appellant was put to his defence, he chose to keep quiet and did not call any witness. 20

Having listened to the prosecution evidence, the learned trial Judge found as follows;

"... In the instant case, the prosecution relied on the evidence of two eye witnesses PW1 Osia Tom and PW2 Olinga David. Osia was an immediate neighbor to the home of the accused. He responded to an alarm and found the couple fighting. He saw the accused assaulting his wife using a stick. He stood by until the furious accused stopped himself.

Olinga told court that he is a nephew of the accused. He heard an alarm and ran to the accused's home to answer the alarm. He found the couple fighting. He saw and heard the accused ordering his wife to lie down and receive her punishment. The accused went looking for a stick and then came back and hit her on the head and the back. He assaulted her and left for the dead. (sic)

That by the time the accused was done, his wife was unconscious. This witness together with Osia lifted the unconscious wife and took her to her grass-thatched hut. Both witnesses observed that she had life threatening injuries on the head, neck and the back.

This Court had no doubt that the witnesses knew the accused before. He was a close relative and neighbor. They saw it happening before their own eyes.

The accused had no defence at all. I find the accused as guilty as charged. He is accordingly convicted of murder C/S 188 and 189 of the Penal Code Act."

Counsel for the appellant argued that the ingredient of malice aforethought was not proved by the prosecution beyond reasonable doubt.

According to section 191 of the Penal Code Act, malice aforethought shall be deemed to be established by evidence providing either of the following circumstances— 15

> (a) An intention to cause the death of any person, whether such person is the person actually killed or not; or

> (b) 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.

Courts have in several cases stated the law on proof of malice aforethought. The Supreme Court in Nanyonjo Harriet and anor vs Uganda, SCCA No. 24 of 2002 held that;

"In a case of homicide, the intention and/or knowledge of the accused person at the time of committing the offence is rarely proved by direct evidence. More often than not the court finds it necessary to deduce 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 and injured."

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- From the evidence on record, both PW1 and PW2 testified that they saw the appellant beating $\mathsf{S}$ the deceased with a stick until when she became weak and unconscious. According to PW2's evidence, he beat her on the back and the head which became swollen. The post mortem report revealed that the body of the deceased had bruises on the scalp, a wound on the left ear and multiple bruises on the back. The report established the cause of death as internal hemorrhage due to head injuries. In our view, given the way the appellant beat up the 10 deceased using a dry stick to the point of unconsciousness, the parts of the body he targeted and the injuries he inflicted which subsequently led to her death, all point to the fact that the appellant had knowledge that his act would probably cause the death of the deceased. We therefore do not accept counsel for the appellant's contention that the appellant did not have the intention to kill the deceased. We also find counsel's argument that the 15 deceased's death could have been a result of post violence handling farfetched and without basis. We therefore find that the appellant acted with malice aforethought. In the - premises, we cannot fault the learned trial Judge for finding him guilty of murder and convicting him as charged. Ground 1 therefore fails. - In regard to ground 2, the appellant faults the learned trial Judge for imposing an illegal, $20$ harsh and excessive sentence upon him. Counsel for the respondent conceded that the mitigating factors were not taken into account during sentencing and on that basis, she invited this Court to set aside the appellant's sentence and impose a fresh one.

This Court will not normally interfere with the discretion of the trial Judge in sentencing unless the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge 25 was manifestly so excessive or so low as to amount to a miscarriage of justice or where the trial court ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle. See: Ogalo s/o Owoura vs R (1954) 21 E. A. C. A. 270 and R vs Mohammed Jamal (1948) 15 E. A. C. A. 126 30

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The discretion of sentencing rests with the trial Judge and it should be exercised judiciously. $5$ In **Bank vs Nuamani [1991] NWLI (parti86)486** the court explained the meaning of judicial and judicious as follows;

> "The exercise of court's discretion is said to be judicial if the judge invokes the power in his capacity" as a judge qua law. An exercise of discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes, discretionary power is said to be judicious if it arises or conveys the intellectual wisdom or prudent intellectual capacity of the judge. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties."

Before a convict can be sentenced, the trial court is obliged to exercise its discretion by considering meticulously all the mitigating and aggravating factors together with other presentencing requirements as provided for under the Constitution, the Penal Code Act, the Constitutional (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions Legal notice No. 8 of 2013 (the Sentencing Guidelines) and as laid down in case law.

In arriving at a sentence of 29 years' imprisonment in the instant case, the learned trial Judge found as follows:

"This was a brutal murder resulting from domestic violence. As observed by the prosecution, cases of murder arising from domestic violence are rampant in Soroti Circuit. The men are the main perpetrators of violence against women. The women here are treated without respect more so when it comes to husbands and wives. It is absurd to hear that the husband ordered his wife to lie down and went looking for a stick. Two able bodied men looked on as he beat his wife to pulp without intervening! It is high time we stopped treating wives as property of the husbands. This man should not have been allowed to subject his wife to such serious assault in the presence of onlookers as if he was doing a lawful thing. This apathy must stop. We must end the impurity (sic)

The wives who find themselves in such violent situations must fight back and try as much as possible to escape from the scene. Safety first. Life has no duplicate.

me &

The men, like this convict, must learn that domestic violence has no place in our modern society. Uganda has signed many conventions and declarations on the elimination of violence against women.

The accused is sentenced to 33 years imprisonment as a deterrent lesson. I hope that fellow violent man in Teso are listening.

. . . . . . . . . . . . . . . .

Judge

5/05/2017

## Order

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Since he has already served 4 years on remand he shall be committed to serve the balance of 29 years in Luzira Upper Prison."

From the above excerpt of the sentencing ruling, we accept counsel for the appellant's submission that no allocutus was conducted for the appellant before sentencing. This contravenes guideline 19 of the Sentencing Guidelines.

We also note that the learned trial Judge only took into account 4 years as the period the appellant had spent on remand and yet the court record shows that the appellant was arrested 20 and charged on 12/4/2010 which makes it a period of 7 years and 20 days spent on remand. Article 23 (8) of the Constitution requires court to take into account, while passing a sentence, the period a convict spent in lawful custody prior to completion of his trial. Failure to do so renders the sentence illegal as was held in *Rwabugande Moses vs Uganda*, SCCA No. 25 of 2014. $25$

It is therefore, our finding that the sentence of 29 years' imprisonment imposed upon the appellant was illegal. We set it aside and now invoke section 11 of the Judicature Act which

gives this Court the power, authority and jurisdiction of the trial court to impose an appropriate $\mathsf{S}$ sentence of its own.

In so doing, we shall consider the aggravating factors that were presented by counsel for the respondent in the instant appeal. We note that counsel for the appellant did not address this Court on the mitigating factors. That notwithstanding, we shall glean them from the court record, and take them into consideration. We shall also look at the range of sentences in similar offences in order to arrive at an appropriate sentence for the appellant.

It was submitted in aggravation of sentence that the offence of murder attracts a maximum sentence of death, the appellant assaulted the deceased who was an adult and caused her humiliation and embarrassment to the point of killing her, he deprived her of life in a senseless manner and orphaned Inyait (their child), there is an increase in violence against women and girls and courts need to promote, protect and enhance human rights in line with domestic and international obligations. A deterrent sentence was prayed for.

In mitigation, we note that the appellant was aged 59 years at the time the offence was committed, he was a first offender, he spent 7 years and 20 days in lawful custody and he has a daughter (Inyait) to take care of.

We have also considered the range of sentences in the following cases with similar offences that have been decided by the Supreme Court and this Court.

In Tumwesigye Anthony vs Uganda, CACA No. 46/2012, the appellant killed the deceased by crushing his head and he buried his body in a sandpit. He was convicted of murder and sentenced to 32 years imprisonment. He appealed to this Court which set aside the sentence and substituted it with 20 years' imprisonment.

In Mbunya Godfrey vs Uganda, SCCA No. 4 of 2011, the Supreme Court set aside the

death sentence and imposed a sentence of 25 years' imprisonment. The appellant had been $\mathsf{S}$ convicted of murdering his wife.

In Hon. Akbar Godi vs Uganda, SCCA No. 3 of 2013, the Supreme Court confirmed a sentence of 25 years' imprisonment imposed on the appellant for murdering his wife.

In Annet Nakafeero and 2 ors vs Uganda, CACA No. 317 of 2003 the appellants were convicted of murder and sentenced to death. Following the decision in *Attorney General vs* 10 **Susan Kigula, Constitutional Appeal No. 3 of 2006** which abolished the death penalty, the appellants' file was remitted to the High Court for re-sentencing and the appellants were resentenced to 45 years' imprisonment. They appealed to this Court which reduced their sentence to 35 years' and 8 months imprisonment.

We note that the sentencing range in the above similar cases is between 20-35 years 15 imprisonment. In the premises, we are of the view that a sentence of 27 years' imprisonment meets the ends of justice. However, since the appellant had spent a period of 7 years and 20 days in lawful custody prior to his conviction, we deduct that period from the 27 years and sentence the appellant to 19 years, 11 months and 10 days imprisonment from the date of his conviction, which is, $02/05/2017$ . 20

In conclusion, we dismiss the appeal against conviction and allow the appeal against sentence in the above stated terms.

We so order.

| Dated at Jinja this. 22 day of | | |--------------------------------|--| | | |

Elizabeth Musoke

JUSTICE OF APPEAL

Jim

Cheborion Barishaki

## **JUSTICE OF APPEAL**

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Hellen Obura JUSTICE OF APPEAL

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