[2025] UGCA 34

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KABALE

(Coram: Muzamiru M. Kbeedi, Christopher Gashirabake, Oscar lohn Khika, JIA)

## CRIMINAL APPEAL NO.92 OF 2017

# 1. BABYEBUZADOMTNTC ^I

- 2. TUMURAMYE HERBERT] - APPELLANTS 3. OSWALDOJULTUS l

## VERSUS

UGANDA RESPONDENT

[An appeal against conviction and sentence arising from the decision of the High Coutt of Uganda sitting at Rukungiri (Hon. Justice Moses Kazibwe Kawuni) delivered on the 3d January 2017 in Crimnal Sesslon Case No. 0120 of 20141

#### JUDGMENT OF THE COURT

#### lntroduction

[1] The Appellants were indicted with the offences of Murder of Peter Kabagambe (the deceased) contrary to Sections '188 and '189 of the Penal Code Act, Cap. '120 in Count one, and Conspiracy to l\,4urder conhary to Section 208 of the Penal Code Act, Cap. 120 in Count two. Each one of the Appellants denied the charges, was tried, convicted of murder, and sentenced to 32 years' imprisonment after considering the three years spent on remand,

4."/' tlrc'" 1of ¹⁹

c-Nr(

## **Background facts**

- The facts as gathered from the trial record are that the three Appellants were close $[2]$ relatives. Dominic Babyebuza (A1) was married to the biological sister of Herbert Tumuramye (A2). The Appellants were also village mates with the deceased in Rinyiga Cell, Nkunda Parish, Nyaga Sub-county, Kanungu District. There existed a grudge between the deceased and A1 on account of the deceased being accused of bewitching A1. The accusations were reported on diverse occasions to the Local Council Chairperson and the local police. - On the 25^th of December 2013, the deceased went to the valley to fetch water for [3] watering his eucalyptus seedlings in a nursery bed. He never returned home that day $252$ which prompted his sister, Topista Tumukunde, to search for him. - On the following day, the deceased was found helpless in a bush near the footpath $[4]$ lying in a pool of blood with bruises all over his body. He was carried to his home, from where he was taken to Nyamwegabira Health Centre III for treatment before being referred to Bwindi Hospital where he died on the 28^th December 2013. A few days after the 26^th of December 2013, Tumuramye Herbert and his sister, Sophia Turinawe, escaped from the village. He was subsequently arrested from Bisanje by the Police. - In his Charge and Caution statement, Herbert Tumuramye admitted having $[5]$ participated in the murder of the deceased together with Dominic Babyebuza (A1) and Julius Oswaldo (A3) upon monetary facilitation of his sister, Sophia Turinawe. He stated that the motive underlying the killing was to revenge as the deceased had bewitched Dominic Babyebuza and, as a result, he had since fallen sick for some time. He set out the details of the weapon used to kill the deceased and that it was kept in the home of A3.

Page 2 of 19

[6] The three Appellants were thereafter charged joinfly with Herbert Tumuramye,s sister, Sophia Turinawe, Each oneof them denied the charges, The prosecution called ten witnesses to prove its case; while the Appellants did not call any witnesses. Sophia Turinawe was acquitted by the Trial Court, while the Appellants were each convicted of Murder and sentenced to 32 years' imprisonment after considering the three yeag spent on remand

## The Appeal

N 'A c-P"

- [7] Dissatisfled with the Judgment of the trial Court, the Appellants Appealed to this Court against both Conviction and Sentence on the following six (6) grounds: - 1) The learned tial Judge erred in taw and fact when he failed to evaluate and appraise the alleged cicunstantial evidence atongside the atibi defense evidence thereby occasioning a miscaniage of justice and wrongly convicting A1 Babyebuza Dominic of Murder. - 2) The learned tial Judge erred in law and fact when he failed to evaluate and appraise the alleged circumstantial evidence alongside the alibi defense evidence thereby occasioning a niscarriage of justice and wrongly convicting A2 Tumuramye Herberl of ilurder. - 3) The learned tial Judge erred in law and fact when he faited to evaluate and appraise the alleged circumstantial evidence alongside the alibi defense evidence thereby occasioning a miscaniage of justice and wrongty convicting A3 Oswado Julius of Murder. - 4) The learned trial Judge erred in taw and fact when, basing on circumstances of the case, he wrcngly inposed upon Al Babyebuza Dominic 35 years,harsh excesslye cu stod i al i n pri sonm ent se nten ce.

Page 3 of 19

- 5) The learned trial Judge erred in law and fact when, basing on the circumstances of the case, he wrongly imposed upon A2 Tumuramye Herbert 35 years' harsh excessive custodial imprisonment sentence. - 6) The learned trial Judge erred in law and fact when, basing on the circumstances of the case, he wrongly imposed upon A3 Oswado Julius 35 years' harsh excessive custodial imprisonment sentence.

## **Representation**

- At the hearing of the appeal, Mr. Seth Rukundo appeared for the Appellants on State [8] Brief, while Mr. Joseph Kyomuhendo, Chief State Attorney in the Office of the Director of Public Prosecutions (ODPP) appeared for the Respondent. The Appellants were present in court. - Both parties sought, and were granted leave to proceed by way of written [9] submissions, which were already on the court record. The Submissions will be considered when analysing the specific ground of appeal to which they relate.

## Duty of the Court

$-1-38$

- [10] The duty of this Court as a first appellate court is now settled. It is to reappraise all material evidence that was adduced before the trial Court and come to its own conclusions of fact and law while making allowance for the fact that it neither saw nor heard the witnesses testify. See: Rule 30(1)(a) of the Judicature (Court of Appeal) Rules; Baguma Fred Vs Uganda, Supreme Court Criminal Appeal No. 7 of 2004; Kifumante Henry Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997; and Pandya Vs R [1957] EA 336. - [11] We have taken cognizance of the principles above in the determination of the grounds of this appeal in the order in which they were argued by the parties.

Page 4 of 19

## Grounds 1. 2 and3ofthe Deal

- [12] The Appellants' compraint in grounds i, 2 and 3 is that the rearned triar Judge did not evaluate and appraise the circumstantjal evidence before him alongside the Appellants' defenses of arbl which resulted jn wrongly convicting each one of ilP Appellants of [r.4urder - ['13] The Respondent disagreed

- [14] We have carefully reviewed the judgment of the trial Court alongsjde the evidence relevant to the resolutjon of the above three grounds of appeal. Right from the outset, the trial Judge rightry set out the ingredients of the offence of r\Iurder which the Prosecution had to prove beyond reasonable doubt namely: 1) Death of a human being; 2) That the death was unlawful; 3) That the death was caused Wth malice aforethought; and 4) The accused participated, whether direcfly or indirecfly in the murder - [15] The evidence reried upon by the triar Judge to estabrish that the death of the deceased was proved by the prosecution to the required standard was the post Mortem report and the witnesses who participated in the burial ceremony, namely: the widow (pW.1 Federesi Nyirasafari), the deceased,s sjster (pW2 Teopista Tumukunde) and the Local Council 1 Chajrperson (pW3 Edward lVugabinrve). The Appellants, Counsel c.ntended that the evidence as to the date of death evidence was inconsistent. That from the lndictment, the date of death of the deceased was stated to be 2,ti2l20i3 whereas the Postmortem Report jndicated that the date of death of the deceased was 29t12t2013 - [16] rn our view, an rndictment is not evidence in the triar. From section 22 of the Triar on lndictments Act an indictment simpry specifies the offence or offences with which an

Page 5 of 19

XP n Ul t {Bt

accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged'

- [17] Secondly, the alleged inconsistence is of no significance to the proof of the fact of death of the deceased Whether the deceased died on the 25rh of December 2013 or the2glhofDecember2013,itisc|earthatbothpartiesagreeinsubstancethat Kabagambe died. The difference behveen the parties simply relates to the actual date ofthedeath. HoWeVer,ac|osereviewofthePostMortemreportindicatedthatthe deceaseddiedon2SthDecember20l3'ThiswasconsistentWiththeora|testimonyof PW1, PW2 and PW3 Therefore, the trial Judge cannot be faulted for finding that the prosecution discharged its burden to prove the fact of the death of Kabagambe - [18] As regards the second ingredient, the trial Judge found that the death was unlawful' He relied on the Post Mortem Report which indicated that the deceased died of "lnternal Haemorrhage caused by visceral injury and intra Cranial Haemorrhage (Haemorkagic shockJ The Appellants seemed to contend that the death was lawful when they argued that the deceased died while on treatment in the hands of health officials. And that the reason for the death was that Nyamwegabira from where the deceased died did not have treatment equipment' Health Center lll - [19] We reject such reasoning The evidence in respect of this ingredient ought to be viewed in its totality The trigger of the death of the deceased were the injuries meted upon him which led to the excessive bleeding, otherwise termed "/nternal Haemorrhage' from which the deceased subsequently died As such' the trial Judge cannot be faulted for finding that the death was unlawful - [20] There appears to be no serious challenge to the trial Court's finding that the death was causedwithmaliceaforethought. AndwelikewiseflndnofaultwiththetrialCourt's

Page 6 of 19

finding that marice courd be rnfened from the vurnerabre parts of the deceased,s body which were beaten or otherwise injured,

- [2j] The biggest borne of contention in this matter relates to the evidence as to the participation of each one of the Appelants in the murder of the deceased. The Appellants faulted the trial Judge for relying on the Confession Statement of ⁴² Herbert Tumuramye to convict the Appellants, lt was the Appellants, case that at the time of making the Charge and Caution Statement, injuries were seen on the body of ⁴²Herbert Tumuramye who was in the cells of Kanungu police and that the said rn1uries were conflrmed in pF24. As such, the Confession Statement was not voluntarjly. - [22] Further, that the trial Court erred in relyrng upon a retracted confession to convict them when there was no corroborating evidence to connect each Appellant to the homiclde death, - [23] Lastly, the Appellants contended that the trial court neglected its duty to consider the alibi defence evidence by each Appellant. - [24] The Appeflants urged this court to overturn the conviction on account of the fairure of the prosecution evidence to satisfy the legal requirements for use of circumstantial evidence to prove participation of the Appellants. - [25] The Respondent disagreed and defended the convictjon as having been supported by the evidence before the trial Court. - [26] with regard to the injuries of A2 mentioned in pF24, the Respondent stated that the medical examination was conducted on 1jl01t2014long after the charge and caution statement had been recorded on O6tO1t2O14 which jmplies that the injurjes were inflicted on A2 after his Confession Statement had already been taken from him by

. L

Page 7 of 19

PW4. The testimony of PW4 also confirmed that the second Appellant made n0 mention of any injuries and torture at the time he took his Confession Statement' That the Statement was Vo|untari|y recorded, and the a|legations of torture are simply an afterthought and should not negate the contents of the statement

- [27] The Respondent further submitted that the charge and caution statement was tendered ln Court and was never objected to by the Appellants' or their advocate as clearly shown on page I of the record of appeal And that its contents consist of detailed information that the PWs could not have reasonably known without receiving It from the second APPellant. - [28] The Respondent also argued that corroboration is to be found in the existence of the grudge behveen the deceased and the second Appellant and the threats by the Second Appellant to kill the deceased which were reported to the LC1 Chairpe rson. lt was also found in the evidence of PW2, PW3 and PWg

(

- [29] Counsel concluded by urging this Court to uphold the conviction of the Appellants' - [30] Upon reviewing the judgment of the trial Court' there rs no doubt in our mind that the trtal Judge was alive to the fact that the evidence of participation of the Appellants was circumstantial. He was also alive to the legal principles which govern reliance on such evidence by the Court to convict an accused person' namely: the Court must find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt The trial Court cited the authority of S'mon Mu soke Vs' R' [1975] E'A' ⁷¹⁵ - t31l When dealing with the question of injuries on the body of A2 Herbert Tumuramye which were laid out in PF24 and their impact of the voluntariness of his Confession Statement, the trial Court considered the dates on PF24 ard the Confession Statement and found that the Statement was made on 06th January 2014 before the ' Page 8 of ¹⁹

medicar examination of 42 which was made on the 13,, of January 2014 at Kanungu Health centre, The Report indicated that at the time of the examination. A2 had bruises on the left foot, left hand and a fracture of the Ieft hand.

- 132) The triar court arso considered the testimony of pw4 to the effect that at the time he recorded A2's Confession Statement, he (A2) made no mention of having any injuries on his body or having been forced to make the Confessjon Statement. - [33] Ihe trial Court also considered the testimony of pW10 Detective Corporal James Gazonga. PW10 told the trjal Court that while in Kanungu, the 2nd Appe ant escaped from lawful custody and that the members of the public assaulted hlm durjng the re\_ arest. This happened after the charge and caution statement was recorded in Masaka, and before the medicar examination canied out on him on the 13th of Janu 2014. The trial Court then concluded

"l observed PW4 give his testimony in Couft and ,ls resporses to fhe accusation of assaulting and coercing A2 to thunbprint the statement. t found his deneanor and response to guest/ons credibte. lt is the finding of this Coul that the confession was voluntarily given, and its retraction is an aftefthought.,

[34] For this court, as a first Appeflate court, to overturn the above finding of fact of the trjal Court, the Appellants had to bring their complaint within the parameters where it is permissibre for this court to exercise its cautious jurisdiction as stated in the brnding aulhority of Abdallah Nabutere and two Ott ers ys t)ganda, Criminal Appeal No. ⁹ of 1978 thus:

'An Appe ate Couft has indeed juisdiction to review the evidence in order to oetermtne whether the conclusion origina y reached upon that evidence should stand But thts is a jurisdiction that is atways exercised with iriiri'.li,r' eppa{A court will onry inteiere with the findings of fact of a triar court i tiere i, io eriaerce Page 9 of 19

t\*Y

(

to support a particular conclusion.......but if the evidence as a whole can be regarded as justifying the conclusion reached at the trial, the view of the Judge as to where the credibility lies is entitled to great weight......."

- [35] It is our finding that the Appellants fell short of their duty. Accordingly, the admission of the Confession Statement by the trial Court is hereby upheld. - [36] After establishing the voluntariness of A2's confession statement, the trial Court went ahead to consider the truthfulness of the confession itself. It called to its aid the evidence of the deceased's widow (PW1) and the deceased's sister (PW2) which showed that before being murdered, A1 Babyebuza Dominic had on diverse occasions threatened to kill the deceased who he believed had bewitched him and caused him to fall sick as a punishment for burning the deceased's house. The LC1 Chairperson of the area (PW3) confirmed knowledge of the existence of the threats of A1 Babyebuza Dominic to kill the deceased as they were referred to his office and he, in turn, forwarded them to the Police. PW8 AIP John Byomugabe likewise confirmed receipt of the complaint but stated that upon receipt of the complaint, he convened a meeting of the parties but did not find sufficient evidence to lead to commencement of a criminal prosecution. As such, he simply cautioned the parties against the criminality $\mathcal{T}$ of such an action. - [37] Clearly by consideration of the evidence of existence of a prior grudge or threats to kill, the trial Court was on the right course as such evidence was relevant and admissible in the circumstances of the case. The East African Court of Appeal aptly summarised the legal position in the case of Waihi and Another vs Uganda [1968] EA 278 at page 280 as under: -

"Evidence of a prior threat or of an announced intention to kill is always admissible evidence against a person accused of murder, but its probative value varies greatly and may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it is

Page 10 of 19 spoken bitterly or impulsively in sudden anger or jokingly and reason for the threat, if given, and the length of time between the threat and the killing are also material. Being admissible and being evidence tending to connect the accused person with the offence charged, a prior threat is, we think capable of corroborating a confession ...."

- [38] It is worth noting that in the Confession Statement, A2 stated the reason underlying their plan to kill the deceased was the witchcraft he is believed to have practiced on A1. - [39] Further, the trial Judge considered the contents of the Confession Statement as against the other evidence before him. He found that the narration in the Confession Statement relating to the movements of the deceased, and the location of the murder weapon in the home of A3 all tallied with the evidence of PW3 and PW6 and led the $252$ trial Court to conclude thus:

"In my assessment, the evidence of PW3, PW6 and PW8 corroborate the narration in the charge and caution statement relating to the movements of the deceased though subsequently retracted by DW2 [now A2]...

DW1 put up an alibi that he was in the local trading centre and left at 7.00pm while DW3 did not give any evidence about his movements on the 25^th December 2013 but the murder weapon admitted in evidence, a pointed stick with blood, was recovered from his home. This in my assessment [resonates] with the narration in the retracted Charge and Caution Statement as to how the accused shared a drink and the deceased narrated to them how he was going to water his seedlings and how all left and followed him at 7.00pm the time DW1 mentions to have left the trading centre... The discovery of the pointed stick used in assaulting the deceased at the home of DW3 [now A3] further corroborates the charge and caution statement as to who kept the murder weapon.

Page 11 of 19

The report to police of the threats to his life by the deceased and the plan to attack the deceased on the way to the well sufficiently point to the common intention to commit the assault against the deceased by A1, A2 and A3 under Section 20 of the Evidence Act... After warning myself about the danger of convicting on circumstantial evidence, I find what is on record incapable of any other reasonable explanation save the guilt of the Accused."

- [40] We find that the trial Court had sufficient material before it which it considered to establish that the Confession Statement was indeed true, and in coming to the decision to convict the Appellants. - [41] Needless to add, under section 27 of the Evidence Act, the Court is entitled to use a proved confession statement against its maker and the other persons with whom he is $\mathcal{A}$ jointly charged in the same trial. The section reads: -

"When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation: - 'Offence' as used in this section, includes the abatement of or attempt to commit the crime."

[42] While resolving the question whether a statement made by an accused may be used against a co-accused, the Supreme Court in the case of Mohamed Mukasa and Anor Vs Uganda, Criminal Appeal No. 27 of 1995 (SC) unreported held thus:

> "... if the accused makes a full confession and tars himself with the same brush and the statement is sufficient by itself to justify the conviction of the maker of the offence for which he is being tried jointly with the other accused

Page 12 of 19

the statement nay be taken into consideration or as evidence against the co\_ accused.

[43] We are satisfied that the rearned hiarjudge therefore properry evaruated the evrdence of the prosecution and the defence a/lbls before him, and properly appljed the law to it and came to the right decision convicting the Appellants. Accordingly, grounds 1, 2, and 3 of appeal fail.

## ⁿ 5a 6- the

- the case. [44] The complaint of the Appellants in grounds 4, 5 and 6 was about the severity of the sentences imposed on each one of them of 35 years, imprisonment. It was the Appellants'case that the sentences were harsh and excessive in the circumstances of - [45] The Appellants further faulted the trial court for not deducting the period spent on remand and disregarding the circumstances of intoxication when considering the mitigating factors before sentencrng the Appellants. - [46] The Appellants prayed that the 35 years, imprisonment term be reduced to 1g years, imprisonment. - [47] The Respondent disagreed - [48] lt was the Respondent,s contention that the trial Judge adequately evaluated both the mltlgating and aggravatjng factors of the case and anived at just and fair sentences in the circumstances after deducting the remand perjod as dictated by Article 23(g) of the Constitution - [49] Further, that the sentences were within the sentencing range of the decided cases of this Court, The Respondent,s Counsel cited a number of cases in support of his submission: ln Sserwada Charles Salongo and three others Vs Uganda, Criminal PaBe 13 of 19

Appeat No, 147 of 2019, this Court confirmed a sentence of 41 years for the offence of Murder after deducting the period spent on remand ln Abasa Johnson and Another Vs tJganda, Criminal Appeal No 34 of 2017 ' this Cou( upheld the sentence of 33 years for the offence of Murder' ln the case of Oianiole Petet Vs Uganda' Criminal Appeal No.34 of 2017, this Court upheld the sentence of 33 years for the offense of l\,4urder

- [50] The Respondent's Counsel further observed that the learned trial Judge did not make findings in relation to the second Count of Conspiracy to Murder C/S 208 of the Penal Code Act. He prayed that this Court exercises the original jurisdiction conferred upon it under Sectlon 11 of the Judicature Act, Cap.,l3 to convict the Appellants under Count two and sentence them accordingly - [51] The Respondent's Counsel concluded by praying for the dismissal of the appeal upholding of the conviction and sentence on count one, and convicting and sentenci of the Appellants on count two - I52l For this Court, as a first appellate Court, to interfere with the sentence imposed by the tria|Court,itmustbeshownthatthesentenceiSillegal,orfoundeduponawrong principle of the law, or that the trial Court failed to take into account an important matterorcircumstance,ormadeanenorinprincip|e,orimposedasentenceWhichis harsh and manifestly excessive in the circumstances' See: Kamya Johnson Wavamuno Vs tJgande, Supreme Couft Criminal Appeal No'16 of ²⁰⁰⁰ (unrepofted); Kwatabye Bernard Vs lJganda, Supreme Coutt C minal Appeal No. 143 of 2001 (unreporled); Wamutabanewe Jamiru Vs Uganda' Supreme Couft Criminal Appeal No. 74 of 2007 and Rwabugande Moses Vs Ugand4 Suprcme Court Criminat Appeal No' 25 of ²⁰¹⁴

l"/. \$\$\*

Page 14 of 19

- [53] We shall bear in mind the above principles while resolving grounds 4, 5 and 6 of the appeal. Jors - [54] The sentencing order of the trial Judge stated thus:

"SENTENCE AND REASONS FOR SENTENCING

- The convict deserves a chance to reform and re-join the community, but that is not reason enough for lenience of court as prayed.

The murder was pre-meditated as can be gleaned from the threats to his life reported to police but the accused did not see it fit to refrain from their criminal plans despite a reconciliation meeting between the parties.

Human life should always be protected and not wantonly taken away as in the instant case.

I convict AI to 35 years' less the 3 years' spent on remand. He will serve 32 years.

I convict A2 to 35 years' less the 3 years' spent on remand. He will serve 32 years'.

I convict A3 to 35 years' less the 3 years' spent on remand. He will serve 32 years."

- [55] One of the Appellant's complaints about the sentences is that the trial Court did not deduct the remand period. It is obvious that the complaint is not borne out of the Court record. The remand period as established by the trial Court was three years and the record shows that it was deducted. This complaint accordingly fails. - [56] The second complaint about the sentences was the alleged failure of the trial Court to take into consideration intoxication as a mitigating factor. We closely reviewed the record of the trial Court. The question of intoxication was not raised by the Appellants before the trial Court as one of the mitigating factors. Raising the issue on appeal for

Page 15 of 19

the first time without first obtaining leave of the Court breaches Rule 74(1) of the Rules of this Court which provides as follows:

### "74 Arguments at hearing.

- $(1)$ At the hearing of an appeal, the appellant shall not, without leave of the court, argue any ground of appeal not specified in the appeal $or$ in any memorandum of supplementary memorandum lodged under rule 67 of these Rules. - [57] The complaint is accordingly dismissed as an afterthought. - [58] In addition to the above, we accept the Respondent's submission that the sentence of 35 years for the offence of murder is within the range of sentences that have been confirmed by this Court in murders committed under similar circumstances. In addition to the authorities cited for us by the Respondent's Counsel for which we are grateful, we are alive to the case of Kyaterekera George William V Uganda, Court of Appeal Criminal Appeal No.773 of 2010, where this Court confirmed the sentence of 30 years imposed by the trial Court on the Appellant who had fatally stabbed his victim in the chest. - [59] In Ssemanda Christopher and Muyingo Denis Vs. Uganda, Court of Appeal Criminal Appeal No. 77 of 2010, this Court confirmed a sentence of 35 years' $\mathbb{Z}$ imprisonment for the offence of murder. - [60] In Kisitu Majaidin alias Mpata Vs Uganda, Court of Appeal Criminal Appeal No. 028 of 2007, this Court upheld a sentence of 30 years' imprisonment for murder. The Appellant had killed his mother. - [61] We accordingly reject the appellants' grounds 4, 5 and 6 and find that the 35-years' imprisonment sentence for the Appellants is neither harsh nor excessive in the circumstances of this case.

Page 16 of 19

# Conviction and Sentencing of the Appellants on the Count of Conspiracy to Murder

- [62] In his submissions, the Respondent's Counsel faulted the trial Court for failing to convict and sentence the Appellants on the second Count of Conspiracy to Murder. As such, he urged this Court to invoke its powers under Section 11 of the Judicature Act, and remedy what the trial Court failed to do by convicting and appropriately sentencing the Appellants on the second Count of Conspiracy to Murder. - [63] The Appellants did not file a specific rejoinder to the Respondent's proposed course of action. - [64] We note that the complaint of the Respondent is in substance a cross appeal. Without having filed a Cross Appeal in this matter and thereafter convincing this Court about the legal basis of the Respondent's right to Cross Appeal and the procedural propriety of the proposed action, we are constrained to reject the Respondent's prayer. Our approach is in line with the course of action taken by the Supreme Court in Katende Ahamad Vs Uganda, Supreme Court Criminal Appeal No. 06 of 2004 (Delivered on 05.07.2007). - [65] In that case, the Appellant was convicted of defiling his daughter of 9 years several times and sentenced to 10 years' imprisonment by the High Court. His appeal to the Court of Appeal was dismissed. The sentence of the High Court of 10 years' imprisonment was upheld by Supreme Court "as a matter of duty". The Court remarked:

"...we take serious view of the fact that the appellant defiled his daughter more than once. Normally this would attract a deterrent sentence. But as there was no cross appeal against sentence, we cannot pass a sentence of more than ten years..."

Page 17 of 19

- [66] Needless to add, what purpose would the course of action proposed by the Respondent serve? This Court has in a number of cases held that the offence of conspiracy terminates with the commission of the actual/principal offence which was the subject matter of the conspiracy, and it would be superfluous and oppressive to convict an accused person of both the principal/actual offence and the conspiracy to commit the principal/ actual offence. - [67] In Serunkuma Edirisa v Uganda & 5 Others, Criminal Appeal No. 147 of 2016 the Appellants were convicted of the offence of theft. They were contemporaneously convicted with the offence of conspiracy to commit a felony contrary to section 390 of the Penal Code Act. This Court (Musoke, Musota and Tuhaise, JJA) held as follows:

"It would be unnecessary to punish an accused person for an agreement to carry out an offence, as well the offence itself, especially as the agreement constitutes the mens rea for commission of the offence in question. We are further persuaded by the observations of the learned authors of (the) Halsbury's Laws of England (supra), that the conspirators' agreement, which is the basis for the offence of conspiracy is terminated by completion of its performance that is, when the offence itself is committed. Accordingly, we agree with the submissions of the appellants' counsel on this point, and find that the learned trial judge should not have convicted the appellants of the offence of conspiracy to commit the felony of theft and yet he had already convicted them for the felony of theft itself. We therefore quash the convictions of the 1^st, 2^nd, 3^rd, 4^th and 6^th appellants for conspiracy to commit $\left( \right)$ $\mathcal{E}$ the felony of theft."

[68] The above holding is still a good statement of the law, and we find no basis to depart from it. We accordingly reject the Respondent's plea to this Court to convict and sentence the Appellants for the offence of conspiracy to murder.

$25$

Page 18 of 19

## [69] Disposition

- 1) The appeal is dismissed for being devoid of any merit. - 2) The conviction and sentences of the High Courtare hereby upheld. - 3) The Appellants shafl continue to serve the imprisonment terms as ordered by the High Court.

#### We so order.

Delivered and dated this -+'^- \a day of .... r\*/2 ²⁰²⁵

MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal

CHRISTOPHER GASHIRABAKE Justice of Appeal

V (

Justice KIHIKA Appeal

,'t: