[2021] UGSC 10

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

### CORAM: (ARACH-AMOKO, OPIO-AWERI, TIBATEMWA-EKIRIKUBINZA, MUGAMBA, MUHANGUZI, JJSC)

#### CRIMINAL APPEAL NO. 61 OF 2015

#### **BETWEEN**

#### 1. BULILA CHRISTIANO 15 2. KARITUNDU CHRISTINE **::::::::::::::: APPELLANTS**

#### AND

#### UGANDA ::::::::::::::::::::::::::::::::::: 20

(Appeal arising from the decision of the Court Appeal at Kampala before Nshimye, *Mwondha and Kiryabwire, JJA dated the 28th day of September, 2015.)*

#### **Representation:**

The appellants were represented by Mr. Andrew Ssebugwawo on 25 State Brief while the respondent was represented by Mr. Sam Oola, a Senior Assistant Director of Public Prosecutions in the Office of the *Director of Public Prosecutions.*

$\mathbf{1}$

$\frac{1}{1}$

#### **JUDGMENT OF THE COURT**

This is a second appeal by the appellants. It comes after they were dissatisfied and aggrieved by the judgment and decision of the Court of Appeal.

The background to this appeal is that the appellants were indicted on the charge of murder, contrary to Sections 188 & 189 of the Penal Code Act.

The facts as accepted by the lower court are that on the 14th of March 2008 at approximately 1:00a.m, the 1st and 2nd appellants hatched a plan that led to the death of Winkle Karitundu alias Rutamirika.

The deceased was the husband of the 2nd appellant (Christine 15 Karitundu), who was joint owner of Texas Pub and Health Club in Nsambya.

It was alleged that the 1st appellant (Christiano Bulila) was a regular customer at the said club and that he was a close associate of the 2nd appellant.

$\mathsf{S}$

On the fateful morning of 14th March 2008, the deceased together with his wife departed from the club for their home which was within a range of 10 minutes' drive. Upon arrival, the deceased was fatally hacked by unknown.

Investigation by the crime scene officer revealed that a blood stained 25 piece of wood and a panga were recovered. It was alleged that these were the murder weapons used by the assailants to kill the deceased.

$\overline{2}$

htc fr/

It was also alleged that the appellants had a hand in the death of the $\mathsf{S}$ deceased.

PW1 who was a worker at the club testified that he was able to identify one of the murder weapons which was a wooden piece of wood that the 1st appellant had instructed him to cut from a bigger piece of wood used to light the sauna at the health club and that after PW1 shaped the wooden piece, the 1st appellant took it to his car.

In finding that the two appellants had a hand in the death of the deceased, the High Court relied on the evidence of the similarity of the piece of timber found at the scene of crime and the sample which it was cut from at the club, the close relationship between the two appellants and the proximity of the mobile telephone calls between the two appellants towards the time the murder was executed. The 1st and 2nd appellants were found guilty of murder and sentenced to fifty years imprisonment and 25 years' imprisonment respectively.

Dissatisfied with the decision of the High Court, the appellants $20$ appealed to the Court of Appeal against both the convictions and sentences. The Court of Appeal affirmed the convictions of both appellants as well as the sentence to be served by the 2nd appellant. However, the sentence of the 1st appellant was reduced from 50 years to 25 years imprisonment on the premise that it was manifestly 25 excessive and discriminatory.

Being dissatisfied with the Court of Appeal decision, the 1st and 2nd appellants appealed to this Court. Each of the appellants lodged

$\overline{3}$

LEE DKS

separate Memoranda of Appeal containing the following grounds of $\mathsf{S}$ appeal:

For the 1st appellant:-

- 1. The Learned Justices of Appeal erred in law when they relied on unsatisfactory circumstantial evidence to confirm the conviction of the appellant which led to a miscarriage of justice. - 2. The learned appellate Justices erred in law when they held that the appellant had a common intention with others to kill the deceased which led to a miscarriage of justice. - 3. The learned appellate justices erred in law when they 15 confirmed a sentence of 25 years imprisonment on the appellant without deducting the period spent on pre-trial remand.

The 1st appellant prayed that the appeal be allowed, the conviction be quashed and the sentence be set aside. 20

For the 2nd appellant the grounds of appeal were as follows:

- The learned Justices of Appeal erred in law when they relied **1.** on weak, unreliable and unsatisfactory circumstantial evidence to confirm the conviction of the 2nd appellant (Christine Karitundu) which led to a miscarriage of justice. - 2. The learned Justices of Appeal erred in law when they failed to consider the conduct of the 2nd appellant at the scene of crime and thereafter which conduct is of an innocent person

$\overline{4}$

LTEPKT

thereby arriving at the wrong conclusion of confirming the appellant's conviction.

- 3. The learned Justices of appeal erred in law when they relied on attractive reasoning, fanciful theories and conjecture and confirmed the appellant's conviction thereby leading to a miscarriage of justice. - 4. The learned appellate Justices erred in law when they held that the 2nd appellant had a common intention with others to kill the deceased which led to a miscarriage of justice.

In the alternative but without prejudice:

5. The learned appellate Justices erred in law when they 15 confirmed a sentence of 25 years imprisonment on the 2nd appellant without deducting the period she had spent on pretrial remand.

The 2nd appellant prayed that the appeal be allowed, conviction quashed and sentence set aside. 20

### Appellants' submissions

Although separate Memoranda of Appeal were filed by the two appellants, counsel submitted one set of written submissions in which he addressed the grounds of appeal.

#### Ground 1 25

$\mathsf{S}$

The appellants challenged the circumstantial evidence relied upon by the Court of Appeal to confirm their conviction.

$LTE$ grs)

- The appellants pointed out the following three pieces of $\mathsf{S}$ circumstantial evidence relied upon by the Court of Appeal: - $(i)$ The weapon used - $(ii)$ The alleged relationship between the appellants - (iii) The communications between the appellants before and after the incident.

The appellants argued that the above three pieces of evidence did not in any way create an irresistible inference of guilt on the appellants. The specific arguments advanced by the appellants in respect of the aforementioned pieces of evidence were as follows:

(i) The weapon used 15

> It was submitted that no evidence was led to the effect that the appellants had anything to do with the weapon used (piece of wood) to kill the deceased. That the appellants were never connected to the procurement, preparation and usage of the murder weapon.

That the Court of Appeal only noted that Eric who is believed to 20 have executed the murder was an acquaintance of the $1^{st}$ appellant. No further evidence was adduced to show that the appellants associated themselves in anyway with what Eric was doing.

(ii) <u>Alleged relationship between the appellants</u>

Regarding this issue, the appellants' counsel submitted that no 25 evidence was led to show that the relationship between the appellants constituted a motive to kill the deceased. Counsel

$\mathbf{6}$

Life PK7

therefore argued that it was wrong for the courts below to convict $\mathsf{S}$ the appellants basing on their relationship.

Furthermore, it was submitted that although there was possibility of a business or personal relationship between Christiano (1^st appellant) and Christine ( $2^nd$ appellant), this was not evidence of participation in the killing of the deceased.

$25$

# (iii) The communications between the appellants before and after the incident.

The appellants faulted the Court of Appeal for speculating that the communication between them related to the cause of death yet no 15 evidence was adduced from the telecom companies to prove the content of the communication print outs.

It was further submitted for the appellants that the learned Justices of Appeal engaged in speculation, attractive reasoning, fanciful

theory and conjecture to convict the appellants as evidenced in the 20 court's finding as follows:

"The evidence adduced on the pieces of wood, the print outs showing" communication between the appellants as well as the passport photos of the second appellant found in the wallet of the first appellant *collectively lead us to the conclusion that these are inculpatory facts*

that are incompatible with the innocence of the accused and are also incapable of explanation upon any other reasonable hypothesis other than that of the guilt of both the appellants."

$\overline{7}$

LIE PRI

- In support of the argument advanced above, counsel for the $\mathsf{S}$ appellants relied on Okethi Okale vs. R [1965] E. A 555 wherein it was held *inter alia* that in every trial a conviction must be based on actual evidence adduced and not on any fanciful theories or attractive reasoning. - The appellants therefore prayed that this Court finds that the Court 10 of Appeal incorrectly upheld their convictions.

### **Respondent's reply**

The respondent's counsel refuted the submissions of the appellants that the Court relied on only three pieces of circumstantial evidence to confirm their convictions. 15

Counsel submitted that all the evidence on record was considered which pointed to the conclusion that the appellants participated in the murder. Counsel referred to the evidence of Prosecution witnesses who testified that they had seen the appellants in each other's company as well as that of Eric- who is still at large but is 20 believed to have executed the killing of the deceased. In particular, counsel referred to the testimony of PW1 who testified that he is the one who had sharpened the piece of wood at Texas Club on the instruction of Eric and was able to identify the same piece of wood at the scene of crime. 25

Furthermore, counsel referred to the testimony of PW3 (Forensic expert) who examined the said piece of wood and found that it contained matching DNA profiles from the deceased's body.

In reply to the alleged romantic relationship between the appellants, $\mathsf{S}$ counsel for the respondents submitted that this piece of evidence is relevant to the case. He stated that it was testified by PW4, PW5 and PW8, that on the day before the deceased was murdered, both appellants had been together from 9:00 a.m-11:00 p.m. He added that PW6 had recovered the $2^{nd}$ appellant's passport photographs 10 from the first appellant. He concluded that the frequent phone calls from the $2^{nd}$ appellant's mobile telephone to the 1^st appellant's telephone a few minutes before the murder was evidence which connected the appellants to the commission of the offence and that the explanation offered by the $1^{st}$ appellant that it was the $2^{nd}$ 15 appellant's daughter calling out for his help was an afterthought.

#### Ground 2

## Appellants' submissions

In respect to this ground of appeal, the appellants argued that although the issue of common intention was not directly addressed 20 by the Court of Appeal, the court found that the appellants hatched a plan that led to the deceased's death. The appellants' argument however is that no evidence was led to prove that the appellants had any connection with the unknown killers. It was submitted that Eric who was believed to have executed the murder was never arrested 25 and brought as a witness in court. Furthermore, that no evidence was led to connect the appellants to the unknown killers.

LTE PET #### **Respondent's reply** $\mathsf{S}$

The respondent's counsel on the other hand submitted that although the 1^st appellate court did not specifically make a finding regarding common intention, there was evidence on record to prove so. The specific evidence pointed out by both counsel was that both appellants were in the company of Eric at Texas club when he 10 procured the piece of wood which was used to kill the deceased. Both appellants had sat nearby and watched when the murder weapon was placed in the car boot of the 1^st appellant's vehicle. That the appellants told deliberate lies when they denied being in the company of Eric on the day the homicide occurred. That these deliberate lies went to great lengths in strengthening and corroborating the Prosecution's case.

In respect to the argument that the Court of Appeal engaged in conjecture and fanciful theories, counsel submitted that in view of the circumstantial evidence highlighted in Ground 1, the appellants' arguments were unsustainable. Counsel submitted that the court was entitled to make comments on the evidence on record.

### Ground 3

### Appellants' submissions

This ground was advanced by the $2^{nd}$ appellant. She argued that the 25 Court of Appeal failed to reappraise her conduct before and after the murder incident. She added that had it done so, it would have arrived at the conclusion that the $2^{nd}$ appellant was innocent. It was

LTE PKT

submitted that neither appellant fled the scene or went into hiding $\mathsf{S}$ either before or after the murder incident. Furthermore, the 2^nd appellant argued that had she wished her husband dead, she would never have bothered to take him to hospital, bury and mourn his loss.

#### **Respondent's reply** 10

The respondent counsel did not make any reply to this ground.

## Ground 4

# Appellants' submissions

- In ground 4, the appellants faulted both the trial court and the Court of Appeal for not deducting the period they had spent on remand. In 15 support of the argument raised, counsel relied on the authority of Rwabugande Moses vs. Uganda SCCA No.25 of 2014 where the Court inter alia held that a sentence arrived at without taking into account the period spent on remand is illegal. - Therefore, the appellants prayed that this Court sets aside the illegal 20 sentences and replaces them with appropriate sentences.

# **Respondent's reply**

Although in the written submissions counsel for the respondent submitted that the Court of Appeal considered the period the appellants had spent on remand, in the oral submissions presented at the hearing counsel conceded that during the re-sentencing of the 1^st appellant, the Court of Appeal did not take into account the period the 1^st appellant had spent on remand. Counsel therefore prayed that

$11$

this Court arrives at an appropriate sentence and deducts the period $\mathsf{S}$ the 1^st appellant spent on remand. Counsel proposed that the appropriate sentence in the circumstances of this case would be 29 years imprisonment. After subtracting the period spent on remand, the final sentence to be served by the $1^{st}$ appellant will be 25 years imprisonment. 10

Regarding the $2^nd$ appellant's sentence, the respondent's counsel submitted that unlike the $1^st$ appellant's sentence, the High Court sentence which was confirmed by the Court of Appeal took into account the period of remand. Therefore, there was no need of applying the ratio in the **Rwabugande decision.**

Counsel further submitted that since the Court of Appeal judgment from which the appeal arises was delivered on 28^th September 2015, the Rwabugande decision which was delivered on 3^rd March 2017 could not be applied retrospectively. In support of the foregoing argument, Counsel relied on this Court's decision of Sebunya Robert and anor vs. Uganda SCCA No. 58 of 2016 wherein it was held that the Rwabugande decision does not have any retrospective effect on sentences which were passed before it. He therefore prayed that the $2^nd$ appellant's sentence of 25 years imprisonment be upheld.

**Court's Consideration** $\overline{25}$

In determining the issues raised in this appeal, this Court is cognizant of its duty as a second appellate court which is to determine whether the first appellate court failed in its duty to reevaluate the evidence presented before the trial court and to reach

its own conclusion. (See: Kifamunte Henry vs. Uganda SCCA No.07 $\mathsf{S}$ of 1997). It thus follows that this Court can only interfere with the conclusions of the Court of Appeal if it appears that it failed in its duty of re-evaluation of the evidence before it.

We will address the pertinent grounds of appeal appearing in the two memoranda which are:

- 1. That the learned Justices of Appeal relied on weak circumstantial *evidence and conjecture to confirm the convictions.* - 2. That the learned Justices of Appeal erred in holding that the appellants formed a common intention to kill the deceased - 3. That the learned Justices of Appeal erred in law when they failed 15 *to consider the conduct of the 2nd appellant (Christine Karitundu)* at the scene of crime and thereafter which conduct was that of an innocent person thereby arriving at the wrong conclusion. - 4. That the learned Justices of Appeal erred in law when they confirmed the sentences without deducting the period spent on remand.

## Ground 1

Under this ground, both appellants faulted the Court of Appeal for confirming the convictions premised on unsatisfactory and weak circumstantial evidence which led to a miscarriage of justice,

A person indicted for the offence of murder can only be convicted of the same if all the ingredients of the offence are successfully proved by the Prosecution beyond reasonable doubt. These ingredients, in

summary are: (i) the fact of death of the deceased; (ii) unlawfulness $\mathsf{S}$ of the homicide; (iii) whether the death was caused with malice aforethought; and (iv) participation of the accused in the unlawful killing of the deceased.

In the present appeal, the first three ingredients are not contested. What is contested by the appellants is their participation in the killing $10$ of Karitundu Winkle-the deceased.

The Court of Appeal considered a chain of evidence before it made the conclusion that the appellants had a hand in the death of the deceased.

- The evidence considered by both courts was purely circumstantial. 15 Before a conviction is upheld on the premise of circumstantial evidence, court has to consider and ensure that the inculpatory facts are incompatible with the accused person's innocence. It was held in Simon Musoke vs. R [1958] EA 715 that: - "In a case depending exclusively or partially upon circumstantial $20$ evidence, the Court must before deciding upon a conviction find that, the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis than that of guilt." - Furthermore, in **Teper vs. R (2) AC 480** the court held: $25$

"It is necessary before drawing the inference of the accused's guilt from the circumstantial evidence to be sure that there are

no other co-existing circumstances which would weaken or $\mathsf{S}$ destroy the inference."

Taylor on Evidence (11th Edn.) at page 74 stated that "the circumstances must be such as to produce moral certainty to the *exclusion of every reasonable doubt."*

Can it be said that the 'circumstantial evidence' in the instant case 10 is incompatible with the innocence of the appellants?

The Court of Appeal considered the following testimony by PW1 (Kamugisha Willy) who worked at the sauna:

"On 14th March 2008, I was approached by Eric at 9:30 a.m. Eric asked for a panga. *Eric went to the sauna area pulled out a particular* 15 piece of wood and ordered me to cut it into two and sharpen it ... He *later walked to A1's car (Christiano Bulila) where the sharpened wood* was kept." PW 1 also testified that after the murder, he was able to identify the blood stained piece of wood which was recovered from the

- scene of crime because he is the one who had previously sharpened it $20$ *at the instruction of Eric. PW1 particularly described the piece of wood* as follows: ... The wood had a sharpened edge and a flat edge. I had tried to remove some branches off the piece of wood. It was a rather thick piece of sharpened wood." - After citing in part the testimony of PW1, the Court of Appeal made $25$ the following observation:

"This account could only have been given by a person who was *actually present at the time a mere piece of wood was being converted*

into a *weapon* capable of causing fatal injury to anyone it was used $\mathsf{S}$ against. We also have the testimony of PW2, Detective Mwendo Daniel. that he picked a piece of wood where the pool of blood was at the residence of the deceased which he compared to the one given to him later by Mr. Shalita at Texas club ... The piece of wood used to assault Wakaritundu was left at the scene while the panga was discarded a 10 few meters away. Blood stains on the deadly piece of timber were captured by forensics as containing the deceased's DNA. PW1's *evidence is indeed material in so far as it points out that he sharpened* the piece of wood and stored it in $A1$ 's car on $A1$ 's driver's instructions. *It is probable that if the piece of wood had not been left at the scene of* 15

*crime, A1's involvement in the murder would have gone unnoticed."*

In regard to the evidence of a brewing extra-marital affair between the 1st appellant (Christiano Bulila) and the 2nd appellant (Christine Karitundu), the Court of Appeal re-evaluated the evidence as follows:

"Concerning the relationship between the two appellants and the 20 *telephone calls they made to each other, the testimonies of AIGP Julius Sharita PW4 (an Assistant Inspector of Police), Elly Ayebazibwe (PW5)* who was a supervisor at the Texas club and Rtd. Capt. Ivan Tumwebaze (PW8), a close friend to the deceased placed the death at approximately 1 $a.m$ in the morning. The print outs from the telecom 25 companies exhibited by PW6, Deputy Sergeant Murangi Tom shows that there were a total of seven phone calls placed to the first appellant's phone from the 2nd appellant's phone. In his testimony, the 1st appellant stated that he received three calls from the

deceased's daughter using the 2nd appellant's phone. This leaves four $\mathsf{S}$ calls unaccounted for and raises suspicion as to what they were talking about since they were all placed around the time of the murder. As regards the passport photos of the 2nd appellant found in the wallet of the 1st appellant (exhibit 3), we have taken into account the explanation given by the 2nd appellant as to why they were in his $10$ possession namely that the 1st appellant was helping the 2nd appellant process a driving permit. We do not find a logical explanation as to why he chose to get a driving permit for the 2nd appellant only as opposed to getting both considering the deceased expressed his interest in acquiring a permit before the 2nd appellant did." 15

Having re-evaluated both the Prosecution and defence evidence, the Court of Appeal inter alia held that:

"The evidence adduced of the pieces of wood, the telephone printouts" showing communication between the appellants as well as the passport photos of the 2nd appellant which were found in the wallet 20 of the 1st appellant (Christiano Bulila) collectively lead us to the conclusion that these are inculpatory facts that are incompatible with the innocence of the accused and are also incapable of explanation *upon any other reasonable hypothesis other than that of guilt of both the appellants.*" $25$

The testimonies of the various Prosecution Witnesses particularly that of PW 1 provided the context within which the murder occurred. We find that PW1's evidence which the Court of Appeal considered clearly linked the murder to the $1^{st}$ appellant. We however hold that

- in respect of the 2^nd appellant, the evidence considered by the Court $\mathsf{S}$ of Appeal (i.e the extra-marital affair as well as the number of times the $2^{nd}$ appellant called the $1^{st}$ appellant shortly after the murder incident) was weak in linking her to the murder. It is quite obvious that people in close contact communicate with each other frequently 10 - and in case of trouble, it is such people who are called upon for help. Nevertheless, we find that there was vital evidence linking the $2^{nd}$ appellant to the murder in PW1's police statement which is on record and marked exhibit D1. In his police statement, PW1 stated as follows: - "In the club at the terrace wing were two customers of Zairean 15 nationality. The Zaireans have been regular customers to the texas club and I had known them as CHRIS and ERIC. In the terrace they were seated with Madam CHRISTINE- the wife of the late ... These two Zaireans came to the club that day as early as 8:10 a.m. When it came to 9:30 a.m, one of them called Eric came to me and got when I was 20 cleaning the Sauna. Eric then asked me to assist and give him a certain piece of wood which he had identified from amongst the pile of firewood that was heaped there ... Eric then held the wood which he had turned into a club and tried it in the air with his two arms. He then commented in Kiswahili that 'iyo itatosha' meaning that it was good 25 enough to do what he wanted it for ... he marched right up to their vehicle which they had parked in the yard at the club and kept it therein. The vehicle was red in colour and I had ever seen Madam *Christine drive it many times before. Eric then went back to where his*

LTE ONT - *friend Chris was seated with Madam Christine ... At about 8:00 p.m I* $\overline{5}$ moved to the parking yard and saw the red vehicle was still there. The two Zaireans were still seated with madam drinking some beers. At about 10:00 p.m, I realized the red vehicle had left the parking yard. I did not know at what exact time they drove out ... At about 1:00 a.m. - on the 15^th March 2008, we closed the club and the late Rutamirika 10 and his wife Christine drove out like they have always done and went *to their residence." (Emphasis of Court)*

We note that the said Police statement was neither disputed nor retracted by PW1. We also note from PW1's statement that after Eric had placed the murder weapon in the $1^st$ appellant's car, he immediately thereafter joined the $1^{st}$ and $2^{nd}$ appellants in the club terrace. We realize that although this car is said to have belonged to the $1^{st}$ appellant, it was often driven by the $2^{nd}$ appellant.

$25$

It is therefore clear from the evidence that although it is not the appellants who executed the killing, they hatched a plan together 20 with the killer(s) to end the life of the deceased.

We now move to address the second limb of argument advanced by the $2^nd$ appellant that the Court of Appeal engaged in conjecture to confirm the conviction. Whereas the Court of Appeal drew inferences from the close association between the appellants based on evidence, we are not convinced with the way the Court of Appeal treated the explanation given by the 2nd appellant regarding her passport photos which were found in possession of the 1st appellant. The Court of Appeal in rejecting the explanation that the 1st appellant was helping

- her process a driving permit held that "[they] do not find any logical $\mathsf{S}$ explanation as to why he chose to get a driving permit for the 2nd appellant only as opposed to getting both considering the deceased expressed his interest in acquiring a permit before the 2nd appellant did." - We find that the Court of Appeal did not refer to any of the 10 testimonies to make the foregoing conclusion. With respect, the Court thus engaged in speculation and conjecture on this specific issue.

The above notwithstanding, the appellants participation in the murder cannot be watered down. Some other corroborating evidence 15 on record linked the appellants to the crime.

We therefore hold that on the whole, ground 1 of the appeal fails.

## Ground 2

This ground faults the finding of the Court of Appeal that the appellants had a common intention with others to kill the deceased. 20 The Court of Appeal held as follows:

"From the evidence on record, it is quite clear that the two appellants" worked together to bring the life of the deceased Winkle Kalitundu to an abrupt end. Even though they may not have been the ones that actually killed the deceased, they were conspirators with common intention with the executors of the murder plan. They were therefore

equally responsible for the death of Winkle Kalitundu."

Section 20 of the Penal Code Act provides for the doctrine of $\mathsf{S}$ common intention as follows:

> When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such nature that its commission was a probable consequence of the Prosecution of that purpose, each of them is deemed to have committed the offence.

The evidence referred to by the Court of Appeal to conclude that there was common intention between the appellants to kill the deceased is 15 the fact that prior to the incident, they had been in close company of each other together with Eric who is believed to have executed the murder plan and escaped arrest. We are therefore unable to fault the finding of the Court of Appeal in this regard.

Thus, Ground 2 also fails. $20$

## Ground 3

This ground was advanced by the 2nd appellant- Christine Kalitundu. She faulted the Court of Appeal for not considering her conduct of calling for help from the pub supervisor and driving the deceased to Nsambya hospital for medical attention shortly after he was attacked. The 2nd appellant argued that this was conduct of an innocent person.

$\overline{21}$

- In Rex vs. Tubere s/o Ochen (1945) 12 EACA 63, the East African $\mathsf{S}$ Court of Appeal held that the conduct of an accused person before or after the offence in question might sometimes give an insight into whether he or she participated in the crime. - In many murder instances, conduct inconsistent with innocence of an accused has been proved where the accused escapes from their $10$ known abode to evade arrest. However, this cannot be said to be the case in every murder incident. We note that the Court of Appeal did not address the issue of conduct of the 2nd appellant before and after the incident. However, the High Court made the following observations: $15$

"... A2 [Christine] painted a picture of a normal working day gone badly at the close of business. Her account is however contradicted by *PW1* and *patrons who were at the club on the material day. She denied* having sat with A1 but this again was contradicted by PW1,4 and 8 *who stated that A1 and A2 were seen in each other's' company in the* sauna and later at the bar taking drinks. A1 then left the pub between $9:00p.m$ and $10:00p.m$ leaving A2 in the pub with the late Wakaritundu. A few minutes before the two left Texas Club, A2 dialed $A1.$

$20$

A2 and the deceased drove home as usual only that on this occasion, 25 deadly stalkers awaited the deceased and he would never live to tell the story. As he parked the car, the assailants struck down the unsuspecting Wakaritundu.

してモ

... one would have expected A2 to call on her conscience to protect the $\mathsf{S}$ man who loved her so dearly. Unfortunately, she was playing a different game. A2 used her inside knowledge of her husband's pattern to hand him over to callous and cold-hearted killers. Although I do not believe that she directly bludgeoned the deceased, I found that she participated in planning and setting up the trap into which her $10$ husband fell like easy prey."

We find no fault in the observations that were made by the trial Judge and hold that the 2nd appellant's conduct was part of the hatched plan that ended the deceased's life.

Ground 3 therefore fails. $15$

## Ground 4

The central argument under this ground is the legality of the sentences imposed. The appellants argued that the Court of Appeal in confirming the sentences did not take into account the period that

- they had spent on remand which is a constitutional requirement. The 20 respondent's counsel conceded that while the foregoing argument was true for the 1st appellant, it was not so for the 2nd appellant. The respondent prayed that this Court exercises its powers under Section 7 of the Judicature Act to impose a legal sentence. - In Rwabugande Moses vs. Uganda, this Court held that in arriving 25 at an appropriate sentence, a trial court must calculate the period a convict has spent on remand and subtract it from the proposed sentence.

LITE PM

In resentencing the 1st appellant-Christiano Bulila on the premise $\mathsf{S}$ that the 50 year imprisonment term imposed by the High Court was manifestly excessive, the Court of Appeal stated that:

"It is our view that both the appellants had similar mitigating factors" and were thus entitled to the same sentence ... It is our view that the sentence meted out to the 1st appellant was manifestly excessive, discriminatory and unjustifiable. We accordingly reduce it to 25 years like that of the $2^{nd}$ appellant."

$10$

$20$

It is clear from the above excerpt that the Court of Appeal reduced the 1st appellant's sentence but did not subtract the period spent on remand as enunciated in the Rwabugande decision.

We note that the Court of Appeal sentence was meted out on the day the judgment was delivered that is 28th September 2015. At the time, the Rwabugande decision which enunciated the arithmetic approach of subtracting the remand period from the final sentence was not yet in place. The Rwabugande decision was delivered on 3^rd March 2017. Prior to Rwabugande, it was the position of the law that it was enough for the sentencing Judge to state that he/she has taken into account

the period the convict spent on remand. In a subsequent decision of this Court-Sebunya Robert and Kakuma Tonny vs. Uganda SCCA No.58 of 2016, it has been held that the Rwabugande decision does 25 not have any retrospective effect on sentences which were passed before it.

Whereas, we do not fault the Court of Appeal for not applying the Rwabugande decision in re-sentencing the 1st appellant because that

$\overline{24}$

was not the position of the law then, we find that the Court of Appeal $\mathsf{S}$ made no mention of the period the appellant had spent on remand. The Court merely referred to mitigating factors as a whole and made no specific mention of the remand period. We find that the Court of Appeal erred by not taking into account the period the convict had spent on remand. His sentence is therefore set aside. 10

In exercise of the powers conferred on this Court under **Section 7** of the Judicature Act and in light of Article 23 (8) of the Constitution which is to the effect that in imposing a term of imprisonment for an offence any period a convict has spent on remand shall be taken into account, we resentence the 1st appellant as follows:

Having evaluated both the mitigating and aggravating factors, we are of the view that a sentence of 29 years would be appropriate. We however deduct the 3 years and 11 months that the 1st appellant spent on remand. He will therefore serve a sentence of 25 years and 1 month effective from the time of conviction.

In regard to the 2nd appellant's (Christine Karitundu) sentence, the Court of Appeal confirmed the High Court sentence of 25 years imprisonment. The High Court Judge in sentencing the 2^nd appellant stated:

"I sentence convict No.2- Christine Karitundu to twenty-five years 25 imprisonment. This prison term has taken into consideration the four years you have already spent on remand."

We note that the learned trial Judge cited the remand period to be $\mathsf{S}$ four (4) years but the proceedings at trial indicate that the appellants spent a period of 3 years and 11 months on remand. We nevertheless find no fault with the sentence. The 2nd appellant's ground on sentence fails.

## Conclusion $10$

From the foregoing analysis, we find that on the whole, the appeal fails. Save for the ground on sentence of the 1st appellant, the appeal is dismissed.

We so order. 15

Dated at Kampala this .................................... 2021.

HON. JUSTICE ARACH-AMOKO,

JUSTICE OF THE SUPRME COURT. 20

HON. JUSTICE OPIO-AWERI, 25 JUSTICE OF THE SUPRME COURT.

Lisalemuse

HON. JUSTICE PROF. TIBATEMWA-EKIRIKUBINZA, 30 JUSTICE OF THE SUPREME COURT.

HON. JUSTICE MUGAMBA, JUSTICE OF THE SUPREME COURT.

$\mathsf{S}$

$10$

HON. JUSTICE MUHANGUZI, JUSTICE OF THE SUPREME COURT.