[2024] UGCA 120

# ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

[Coram: Egonda-Ntende, Gashirabake, Kihika, JJA]

# CRIMINAL APPEAL NO. O86 OF 2OIO

(Arising from Mbale High Coun Criminal Session Case No. HCT 04-cr-sc-0057- 2009) 10

- 1. ASAMA JULIUS - 2. EMURON SILVER APPELLANTS

#### VERSUS

15 UGANDA RESPONDENT (Appeal against the Judgment of the High Court of Uganda I S. Musota, J.] at Mbale delivered on the 25h of May 2010)

## JUDGMENT OF THE COURT

#### I ntrod uction

- ²⁰ l] This is an appeal against conviction and sentence. - 2l The Appellants were tried, convicted and sentenced to 28 years' imprisonment each. Dissatisfied with the decision of the High Court, the Appellants filed this appeal against the conviction and sentence on the following grounds: - l. The learned trial Judge erred in law and fact when he relied on unsalisfactory circumstanlial evidence to convicl the Appellants - 2. The learned trial Judge erred in law ond fact when he meted out ^a manifestly harsh and excessive sentence of 28 years' imprisonment againsl each of the Appellants.

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#### Representation

3l The Appellants were represented by Ms. Faith Luchirya on State brief. The Respondent was represented by Ms. Nakafero Fatina, Chief State Attomey and Mr. Engena George, Senior State Attomey.

## ¹⁰ Submissions by Counsel for the Appellant

- It was submitted for the Appellants that there was no independent evidence to verifu the allegations made by PW2 against the Appellants. Counsel argued that the evidence were just mere suspicions. Counsel further argued that there was no land sale agreement produced in court to prove the fact of sale ofland. It was counsel's view that the findings of the trial Court did not have a basis. 4l - Counsel argued that the testimony of PW2 was given in isolation from that of PW3 in the sense that what PW2 heard from the Appellants was not heard or confirmed by PW3. sl - Counsel argued that the trial Judge erroneously relied on the evidence that the Appellants while being arrested wailed that "Pedun has brought us problems. " Counsel submitted that the arresting officer did not make such ^a statement and neither was there an independent witness from the state who was brought to confirm those statements conceming Pedun. 20 6l - Counsel submitted that the allegations made by PW2 conceming money were false. Counsel argued that the PW2 testified that the Appellants gave him I,500,000/= (one million five hundred shillings only) in 20,000 denominations which he drew from the bank. That PW2 testified that he bought land at Shs. 1,700,000/= (One million seven hundred shillings) yet 25 7)

ge 2lPa

- during cross-examination PW2 testified that he bought the land at Shs I 1,000,000/= (Eleven million shillings only). Counsel invited the court not to take these false statements lightly. - 8] Counsel further submitted that whereas PW 2 talks of an announcement that was made on radio continental. No such record was produced in court to determine what the announcement was. - 9l Counsel was suspicious of PW3 who testified that on 410612009 at 2:00 p.m. he left the late alive at his home. Counsel argued that by implication PW3 was the last the last person to see the deceased alive. In Counsel's view, the fact that PW3 kept checking on the whereabouts of the deceased, it raised some suspicions as to whether he knew what happened to the deceased. - 10] Counsel argued that if the Appellants were guilty, they would have escaped from the village. But having remained in the same village, indicated that they were innocent. Counsel cited Opolot v Uganda, (Criminal Appeal No. 151 of 2018) 120231 UGCA 40, where it was held that an accused should only be convicted on the strength ofthe prosecution case. Any doubt must be resolved in favour of the Appellant. - 1l] Counsel attacked the evidence of PW4, stating that his evidence was not credible and was full of falsehoods. - 12) Counsel stated that the evidence of PW5 was unreliable because he did not reveal who gave him evidence incriminating the Appellants and the two others who were arrested. Counsel argued that the sketch map drawn by PW5 did not indicate the home of Asama, the first Appellant. Counsel submitted that failure to do so was enough to dismiss the case against the first Appellant. 25

- l3] Counsel submitted that the trial court ought to have considered the alibi raised by first Appellant and the second appellant. The first Appellant stated that on 316/9 he left home at 8:00am in the moming to go to Kabong. He was going to load goods and go to Katakwi cattle market. He spent the night in Soroti and did not come back home. From Soroti he proceeded to Katakwi cattle market. On51619 he received a call from the county chief of the clan informing him of the death of the deceased. DWI then came back and found people gathered at home. He stayed for a vigil that night and made preparations for burial. 10 - l4l Counsel noted that DW2 also put up an alibi to the effect that on27l5l09 he went to a landing site at Luzira in Gongo sub county and came back on 6/6/09. He met his brother Okello Joseph who had come to inform him of the death of Egolet Firifasio. Counsel argued that both DW1 and DW2 denied anything to do with any announcement. Counsel submitted therefore that the trial Judge's frndings on the circumstantial evidence were not supported by the evidence on the record. He prayed that the conviction should be set aside. 15 20

## Ground two

15] Counsel for the Appellants submitted that owing to the resolution of ground one this Court should find that the sentence was not justified in the circumstances. Counsel cited Mulolo v Uganda (Criminal Appeal No 504 of 2017) 120221 UGCA

242 (28 September 2022 where this court confirmed a sentence of l5 years for ^a murder that was committed in more or less similar circumstances as in the instant case. Counsel invited this Court to reduce the sentence.

### Submissions by Counsel for the Respondent

- ⁵ 16] In response counsel for the Respondent submitted that the Court relied on purely circumstantial evidence. Counsel submitted that the law on circumstantial evidence is that the exculpatory facts must be incapable ofany other explanation other than the guilt of the accused. - l7l Counsel submitted that part of the circumstantial evidence relied on was the previous threats made against the deceased. - l8] Counsel relied on the evidence of PW2 who told the Court that he bought land from the deceased. However, the Appellants who were related to the deceased were not happy because they thought they would inherit the land after the deceased had died since the deceased did not have biological children. - 19] PW2 further testified that he was confronted by the Appellants asking him to retrieve his money from the deceased if not they would deal with the deceased. It was alluded that A1 Asama stated that "we shall break his neck" and ,{2 Emuron Silver stated that, "even me alone canfinish that old man. " Counsel relied on Waihi & another v Uganda, 1968E,A27, where the Court held that evidence of previous threats whether spoken bitterly or impulsively in anger corroborate evidence of malice. And Kifamunte Henry v Uganda (supra) states that evidence of previous threats is relevant and such evidence shows an expression of intention to kill. 15 20 - 201 The piece of evidence relied on by counsel for the Respondent is the conduct of the Appellants after the deceased was found dead in his house. PW2 testified that after knowing that the deceased's body was found lifeless in his house, the Appellants approached him at his house at 3:00am on 4th June of 2009 and told him not to conduct a post mortem on the deceased. They informed PW2 that the deceased had been poisoned. The Appellants further

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- ⁵ gave PW2 Shs. 1,500,000/= (One million five hundred thousand shillings only) as bribe not to conduct a postmortem on the deceased's body. PW2 had to take the money because it looked like the new notes he had used to purchase the land. Counsel submitted that this is not the conduct of innocent people. Counsel cited Remigious Kiwanuka v Uganda, SCCA No. 4 of 1995 - 2ll Furthermore, counsel submitted that the deliberate lies told to the Court by the Appellant amounted to circumstantial evidence as well. Counsel argued that PW4 met the Appellants at the deceased's home a day before he was found dead. PW4 saw the Appellants harass the deceased for selling the land to PW2. PW4 also stated that he saw the Appellants remove the money from the deceased. Counsel argued that the Appellants raising an alibi when they were seen by PW3 and PW4 was a deliberate lie. Counsel cited John Muchin alias Kasile v Uganda, SCCA No. 3/1993 and Kitegana Stephen v Uganda, SCCA No.53/2000. 10 15 - 221 Counsel prayed that this court finds that there was sufficient evidence for the Court to convict the Appellants. 20 - 231 Tuming to ground two, counsel for the Respondent agreed with the submissions of counsel for the Appeltant conceming the interference of the appellate Court in the sentencing discretion of the trial Court. Counsel cited Wamutabaniwe Jamiru v Uganda, SCCA No. 74 of 2007 and Kyalimpa Edward v Uganda, Supreme Court Criminal Appeal No. l0 of 1995 - 241 Counsel citing several cases submitted that the sentence of28 years for each of the Appellants was neither harsh nor manifestly excessive. See Karisa Moses v Uganda, SCCA No, 23 of 2016, where the Court confirmed a life

- sentence and the case ofBashasha Sharifv Uganda SCCA No. 82 of20l8, where the Supreme Court upheld a death sentence. - 25) Counsel prayed that this Court uphold the sentence of28 years' imprisonment, considering the gruesome way the deceased was killed.

# ANALYSIS

26) It is the duty ofa first appellate Court to review and re-evaluate the evidence before the trial court and reach its own conclusions, taking into account of course the fact that the appellate Court did not have the opportunity to hear and see the witnesses testifu and observe their demeanour. See Rule 30(l) (a) of the Court of Appeal Rules. In Father Narsensio Begumisa and three others v Eric Tibebaga, SCCA 170 of 2000, the Court stated as follows: 10 15

> "This being afirst appeal, this Court is under an obligalion lo re-hear lhe case by subjecting lhe evidence presenled lo lhe trial court to o fresh and exhaus!ive scrutiny and re-appraise before coming lo ils own conclusion.'

- 27) On the 41h of June 2009, the deceased Egolet Girfasio was found dead in his house. His body was soaked in btood and had signs of injuries on his neck. 20 - 28) Three days earlier, the deceased had sold his land to one Going Joseph (PW2) which transaction angered the three Appellants who had hoped to inherit the said deceased's land since the deceased never had any child of his own. - 29) The body of the deceased (8O-year-old male) was medically examined and found to have suffered severe injuries on his clavicle area and broken neck as per the exhibited postmortem report marked Exh. P lq,

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s ³⁰¹ 10 We have carefully considered the parties' submissions on ground one. The gist of counsel for the Appellant's submissions is that the circumstantial evidence on record was not sufficient to secure a conviction against the Appellants. We noted that circumstantial evidence is not direct evidence in relation to the commission of the offence in question. Rather it is evidence of a series of circumstances leading to the inference or conclusion of guilt against the persons charged with the offence. In lwutung Stephen v Uganda, Criminal Appeal No. 0020 of 2016 (unreported), this court stated conceming circumstantial evidence that:

> "The lav, on circumslontial evidence has a common law' origin. In Hodge's case (18380, 2 Low in 227, 168 E. R. 1136 a rule on circumslantial evidence was articulated to the effect that y)here a case is based on circumstontial evid.ence, before convicting an accused person upon such evidence, the Court must be satisJied not only that the circumslances are consistent with a conclusion lhat the criminal acl v,as committed by lhe occused person, but also that the facts are such as to be inconsistenl vith any other rational conclusion than that the accused is the guilty person.

In the authority ofSimoni Musoke v R [ 1958] I EA 715 [ East African Court ofAppeall ir was held that:

" -.. in o case depending exclusively uTnn circumstanlial evidence, (the Court) must fnd before deciding upon the conviction that the inculpatory fact-s were incompatible with the innocence of the accused ancl incapable of explanalion upon any other reasonable hypothesis than thal of guilt. " The Court quoted with approvol from the Textbook Taylor on Evidence " (l lth Edition) on page 71. the following statement:

"The circumslonces must be such as lo produce moral certainty, lo the exclusion ofevery reasonable doubt. "

The Court also cited with approval, a passage.from the judgment of the Privy Council in Teper V. R. (2), fi9521 A. C.4E0 at pg.489 thot:

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⁵ "it is also necessary before drawing the inference of the accused's guilt .from circumstantial evidence to be sure that lhere are no olher coexisting circumstances which would weakzn or deslroy the inference. "

## 3l] In Byaruhanga Fodori v Uganda, [20041 UGSC 24, the Supreme Court stated as follows:

"il is trite law lhal where the proseculion case depends solely on circumstantial evidence, the Courl must, belore decidingon a conviction, f nd that the inculpatoryfacts are incompatible with the innocence of the accused and incapable of explanation upon any olher reasonable hypolhesis than thal of guilt. The Courl musl be sure that there are no olher co-existing circumslances, which weaken or destroy the inference of guilt. "

321 It has to be noted that circumstantial evidence has to be treated with a lot of caution. In Tindigwihura Mbahe v Uganda, SC. Criminal Appeal No. 09 of 1987, the Court wamed that:

"circumstanlial evidence musl be trealed with caution, and narrowly examined, because evidence of this kind can easily be fabricated. Therefore, before drawing an inference of the accused's guilt from circumstantial evidence, there is a compelling need to ensure lhal lhere are no olher co-exisling circumslances which would weaken or altogether destroy that inference. "

33] The trial Judge acknowledges that the case depends on circumstantial evidence. It was PW2's evidence that the trial Judge was alive to the fact that admissibility and assessment of circumstantial evidence must be narrowly examined because evidence of this kind may be fabricated to the disadvantage of an accused person.

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- ⁵ 341 The trial Judge, however, observed that his evaluation of the circumstantial evidence adduced by the prosecution was strong and reliable. - 35] In his evaluation the Judge found the Appellants guilty of the deceased's murder. The trial Judge relied on the following circumstantial evidence to arrive at his conclusion: - l. The Jact that the Appellants were not happy that the deceased sold his land to Pll'2. they expected lo inherit it since the deceased did not have a biological child, - 2. The other is that the Appellants visited PW2 at 3:00 AM in the company of Pll3 to apologize for killing the old man. The Appellants requested that PW2 should not let the Dr. examine the body. The Appellants ofered PII'2 Shs. 1,500.000/: (One nillion andfve hundred thousand shillings only) but PII/2 rejecled the ofer. - 36] The trial Judge found that the above evidence was corroborated by the evidence of PW3 Okiria Sam. The trial Judge noted that PW3 knew both the deceased and the Appellant very well. PW3 told the Court that he saw the deceased on 04/06109. When he went back to ask the following morning on 5106/09, PW3 was told that the deceased left early. PW3 went ahead and testified that later ,A'3 Okenya (deceased), informed the chairman that the deceased was found dead in his house. PW3 further stated that later in the night the Appellants asked him to take them to PW2 such that they could apologize. - 37) The Judge further noted that the above evidence was corroborated by that of PW4 who heard the Appellants quarreling with the deceased and asking him for the money they had sold the land.

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- ⁵ 38] Counsel for the Appellant submitted that there was no independent evidence to verifu what the witness said. Counsel alleged that these were mere suspicions, that every witness suspected that the sale of land led to the accused killing the victim yet there were no sale agreements produced in Court to prove the fact of the sale of land. PW2 testified that he bought land from the deceased and that after purchasing the Appellants were not amused. They confronted him claiming that since the deceased did not have any biological child they would inherit the land. They totd him to go pick up his money lest they deal with the old man. To be specific the first Appellant Asama stated that "we shall break his neclC'and then the second Appellant Emuron Silver said"Even me alone canfinish that old man" PtN2 testified that he asked them to go and talk to the old man. PW2 further testified that the following day his farm manager PW3 called to inform him that one of his workers was found dead. In his testimony, he stated that he did not doubt that it was the ³ Appellants. This testimony was corroborated by the evidence in exhibit EXT PT, the post-mortem report that indicated that the deceased died ofa fractured clavicle and assault. It could not be a coincidence that a threat could be made by one person and then implemented by another. The first Appellant threatened that they would break the deceased's neck and it happened. This is corroborative proof that they participated in the murder of the deceased. 15 20 10 - 391 PW2 further told the Court that, that night at 3:00 AM, the manager came knocking at the door with the three accused. They apologized for killing the deceased and requested him to take Shs. 1,500,000/= (One Million five hundred thousand shitlings only) such that a post-mortem is not carried out. He rejected the money. This evidence was corroborated by that of PW3 and PW4. PW3 confirmed that the Appellants had requested him to take them to PW2's home to apologize. 25 30

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- ⁵ 401 We observe that the learned trial Judge considered evidence of the Appellant disputing the sale of land to PW3. The trial Judge relied on this piece of circumstantial evidence coupled with other pieces of circumstantial evidence to conclude that the Appellants killed the deceased. - 41) Counsel for the Appellant stated that there was need for proof of the land agreement which we don't agree with because this is not a mafter of proof of sale of land but a murder case. 10 - 421 We find, in agreement with the leamed trial Judge, that there is sufficient circumstantial evidence to lead to the irresistible conclusion that the appellants murdered the deceased. We find no merit in the appeal against conviction. - 43) Ground one fails. - 44) Regarding sentencing, the principles on which an appellate Court may interfere with a sentence imposed by the trial Court were considered by the Supreme Court in Kyalimpa Edward v Uganda, Criminal Appeal No. l0 of 1995 which held that:

" dn appropriote senlence is a maller.for the discretion ofthe sentencing judge: each case presents its own facls upon which a.judge exercises his discretion. Il is lhe practice that as an appellate Court. This Court will not normally interfere v'ith the discretion of the sentencing Judge unless the sentence s is illegal or unless the Court is satisfed that the sentence imposed by lhe lrial Judge was manifestly excessive as to umount to an injustice. See. Ogalo S/o Owoura v, R (1954) 2I EACA 270 and R Vs. Mohamedali Jamal (1948) EACA 126."

⁵ 45) In arriving at the sentence of 28 years' imprisonment for the Appellants, the trial Judge considered both the mitigating and aggravating factors as presented before the Court. In mitigation, the Judge considered the fact that each ofthe Appellants was a first-time offender. In Karisa Moses v Uganda, (SCCA No. 23 of 2016) a22 year old Appellant had been convicted of murdering the grandfather and was sentenced to life sentence. The Supreme Court while confirming the sentence noted that; 10

> "An appropriate senlence is a matler for the discretion of the sentencing Judge. Eoch case presented its own facts upon which a Jurlge exercises his discretion. It is the practice that as an appellate Court, this Court will not normally interfere with lhe discretion of lhe sentencing Judge unless the senlence is illegal or unless lhe Court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount lo an injustice."

46) The Appellants were indicted for murder contrary to sections 188 and 189 of the Penal Code Act. Murder carries a maximum penalty of death under section 189 of the Penal Code Act. 20

47) Considering all the above, the sentence of 28 years' imprisonment meted out to each Appellant was neither harsh nor manifestly excessive. The trial Judge judiciously exercised his discretion.

48] With regard to sentencing, whereas the decision is pre Rwabugande v Uganda, the pre Rwabugande regime or rule as article 23 (8) was understood and applied was not applied in this case at all.

- ⁵ 49] The Judge did not determine what period the appellant had spent on remand. He did not take it into account or have it in consideration while passing the sentence, rendering the decision illegal or unconstitutional and necessitating this court, the appellate court, to sentence the appellant afresh under Section I I of the Judicature Act. - 10 - 50] Counsel for the respondent conceded when it was raised by court during the hearing that article 23 (8) of the Constitution was not applied.

## Re-sentencing

5l ] Section I I of the Judicature Act vests this court with the same powers as the trial Court in the following terms: 15

> " I I . Court of Appeal to have powers of the court of original jurisdiction For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated. "

521 In the exercise of the above mandate, we adopt both the mitigating and aggravating factors as set out by the Trial Judge in his sentencing decision. 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 Constitulion (Sentencing guidelines for Courts of Judicature) Practice Directions, 2003 - Legal Notice No.8 of 2013, and Aharikundira Yusitina Vs. Uganda, Supreme Court Criminal Appeal No. 27 of 2015.

53. We Consider 20 years' imprisonment as the appropriate sentence in the circumstances of this case.

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54. Taking into account the period of approximately 1 year spent by the appellants $\mathsf{S}$ in pre-trial remand, the appellants shall serve a term of 19 years' imprisonment commencing from 25^th May 2010, the date of conviction.

We so order

Dated at Kampala this 2024 $10$ day of FREDRICK EGONDA-NTENDE **JUSTICE OF APPEAL** 15 **CHRISTOPHER GASHIRABAKE JUSTICE OF APPEAL** 20

**OSCAR JOHN KIHIKA JUSTICE OF APPEAL**