[2023] UGCA 398

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT FORT- PORTAL CRIMINAL APPEAL NO. 254 OF 2015

Coram: Buteera, DCJ; Mulyagonja & Luswata, JJA

5 BWAMBALE KALYABYUMA APPELLANT

#### VERSUS

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

a (Appeat from the Judgment of the High Court of IJganda at Fort- Portal, David MAtovu, J, dated 15'h July 2015 in Criminal Session Case No. 0107 of 2012)

#### IUDGEMENT OF THE COURT

## Introduction

a

¹⁵ This is an appeal against the conviction and sentence delivered by Hon. Justice David Matovu wherein the appellant was convicted of murder contrary to sections 188 and 189 of the Penal Code Act, and sentenced to 21 years and 9 months' imprisonment.

# o Brief Facts.

²⁰ The facts according to the prosecution were that on the 4'h day of April 20L2, at around 11:20pm, Maseruka Nickson and Ndyanabo were arrested by the appellant, together with his colleagues, who pretended to be patrolling the village for security reasons. They demanded for money, tied them up and moved with them around the village until they came across Bwambale Sele Kapsite, the 25

deceased, who was lying in an incomplete house in Kidodo village at around 5.30am. They arrested and tied him up and started beating him as a suspected thief. He became weak and later died. One of the other accused persons brought a wooden window from Baguma's house, put it on the deceased's body after which they left.

Inquiries were initiated and the police officers rang the appellant under the guise of coliecting money from Maseruka. When the trio responded, they were arrested and they led the Police to the scene e of crime. They were accordingly taken to the Police and charged. The appellant was convicted of murder contrary to Sections 188 and 189 of the Penal Code Act, Cap 120, and sentenced to 21 years and 9 months' imprisonment. Dissatisfied with the decision of court, he filed this Appeal.

## ¹⁵ Grounds of Appeal

- 1. That the Trial Judge erred in law and fact when he convicted the appellant of the offence of murder with undue regard to the ingredient of malice aforethought, thus occasioning a miscarriage of justice. - 2. The Trial Judge erred in law and fact when he passed an illegal sentence of 2I years and 9 months, the prosecution having failed to prove its case beyond reasonable doubt, thereby occasioning gross miscarriage of justice.

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## Representation

At the hearing of the Appeal, the appellant was represented by Ms. Bahenzire Angella, on state brief. The respondent was represented by Mr. Oola Sam, Chief State Attorney in the office of the Director of Public Prosecutions. Both counsel applied to rely on their written submissions and court granted the application. This Court considered the submissions together with other relevant authorities in the preparation of this judgment.

## Case for the appellant

o ¹⁰ Ground ¹

,T

That the Trial Judge erred in law and fact when he convicted the appellant of the offence of murder with undue regard to the ingredient of malice aforethought, thus occasioning ^a miscarriage of justice.

1s Regarding the duty of the first appellate court, counsel for the appellant cited the case of Oryem Richard Vs Uganda, Criminal Appeal No.22 of,201-4 (SC;, that requires this Court to re- appraise O the evidence as a whole and come to its own conclusion although it must bear in mind that it did not see or hear the witnesses 20 testify.

He submitted that the learned trial Judge did not at all consider the ingredient of malice aforethought but only considered the ingredients that death occurred, that it was unlawful and that the appellant participated in causing it.

It was counsel's contention that the prosecution did not provide any evidence to prove malice aforethought on the part of the appellant. He prayed that the conviction of the appellant be set aside.

s Ground ²

The Trial Judge erred in law and fact when he passed an illegal sentence of 2L years and I months, the prosecution having failed to prove its case beyond reasonable doubt, thereby occasioning gross miscarriage of justice.

o 10 Counsel for the Appellant referred to the case of Kyalimpa Edward Vs Uganda; Criminal Appeal No. 1O of 1995, or the principles governing the interference with the sentence by the Court of Appeal. She prayed that the honorable court finds that the sentence of 21 years and 9 months' imprisonment was illegal and ¹⁵ the same should be set aside.

## Case for the respondent

Counsel for the respondent opposed the appeal in its entirety and supported the conviction and sentence imposed by the learned trial judge.

# 20 Ground I

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On the appellant's contention that the trial judge did not consider the ingredient of malice aforethought, and that the prosecution did not provide any evidence to prove malice aforethought on the part of the appellant, and that the people who arrested the

deceased did not intend to kill him, counsel for the respondent referred to the evidence that the trial Judge relied on. That is, the testimonies of PW5 and PW6 that those who arrested them beat them up together with the deceased. That they used canes and this was done for a long time.

Counsel also observed that the trial Judge relied on Exhibit P1 (Post-mortem report) which indicated that the deceased's body had scratches on the lower part of the abdomen with soiling. The body had been rolled in a dusty place and there were signs of O strangling shown by the softness of the neck. That the cause of death was strangling and intracranial hemorrhage.

Counsel cited the case of Rwabugande Moses v Uganda; Supreme Court Criminal Appeal No. 25 of 2014, where the appellant was convicted of murder. The appellant and his herdsman had gone to 1s the home of the deceased to retrieve an impounded herd of cattle. A scuffle ensued between the deceased on the one hand and the appellant together with his herdsman on the other hand. The deceased was hit on the head twice with a herdsman's stick. He O sustained bodily injuries which led to his death. The High Courr, 20 the Court of Appeal and the Supreme Court found that malice aforethought had been proved.

Counsel thus submitted that in the instant case, there was abundant evidence to prove malice aforethought. He prayed that ground one fails and should be dismissed for lack of merit.

## Ground 2

o 10

o

Counsel observed that ground 2 was poorly drafted since it mixed up issues of sentence and conviction, thus offending rule 66(2) of the Judicature (Court of Appeal Rules) Directions. He, however, proceeded to submit that the learned trial Judge applied all the principles regarding sentencing. Notably, that the trial Judge considered the period the appellant spent on remand, which he deducted from the sentence that he deemed appropriate.

He submitted that the maximum punishment for the offence of murder being death, the sentence of 2I years and 9 months' imprisonment that was imposed by the trial Judge could not be said to be illegal.

He cited the case of Rwabugande (supra) where the appellant was sentenced to 21 years' imprisonment, after the period of one year that he spent on remand was deducted. Counsel contended that the facts in this case were more grave and more aggravated than those in the Rwabugande case and, therefore, the sentence imposed by the trial judge was befitting and should not be interfered with.

He prayed that the appeal against conviction and sentence be dismissed. 20

## Court's Consideration

## Duty of the first appellate court

It is our duty as the first appellate court to re-appraise the evidence before the trial court and come to our own conclusion. lSee Rule fO (f) (a) of the Judicature (Court of Appeal) Rules.l However, in doing so, we have to bear in mind that we did not have the opportunity to see and hear the witnesses as they testified. [See Selle and Another Vs Associated Motor Boat Co.[19681 EA L23, Pandya vs R. [19571 EA 336, Ruwala vs R [19571 EA 57O, and Kifamunte Henry vs Uganda; Criminal Appeal No. 10 of 1997 (Supreme Court). I

Counsel for the appellant raised two grounds of appeal. We shall resolve them in the same order as they were argued by both counsel.

# 1s Ground I

The gist of this ground is that the learned trial judge, in convicting the appellant, did not consider the ingredient of malice aforethought and only considered the fact that death had occurred and that the appellant had participated. The duty of this Court is to establish whether the learned trial Judge rightly found that the ingredient of malice aforethought was satisfactorily proved by the prosecution. In the case of Nanyonjo Harriet & Anor v Uganda; Criminal Appeal No. 24 of,2OO2, the Supreme Court held:

o 10

## 20

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"In cases of homicide, the intention and/or knowledge of the accused person at the time of committing the offence is rarely proved by direct evidence. More often than not the court finds it necessary to deduce the intention or knowledge from the circumstances surrounding the killing, including the mode of killing, the weapon used, and the part of the body assailed and injured."

In the instant case, the learned trial judge inferred malice a aforethought from the nature of injuries that the deceased sustaine d, viz: scratches on the lower part of the abdomen with soiling, the body having been rolled in a dusty place, and that there was strangling shown by softness of the neck. These were reflected in Exhibit PI (the post mortem report). The report also 1s indicated that the cause of death was strangling and intracranial hemorrhage.

o

The learned trial Judge also found malice aforethought had been established by the evidence of PWs and PW6 that the appellant and the other people he was with who arrested the deceased and the two witnesses, used strokes to beat them up. And that they beat the deceased for a long time. From that, the learned trial Judge found that the use of canes on a human body for a long period of time was sufficient evidence to prove malice aforethought.

In our view, the appellant and his friends went about arresting people and beating them. When they found the deceased in an

incomplete house, they tied him up with ropes and beat him up for a long duration of time, that is from about 2 am until morning when he eventually passed away. Going by the post- mortem report which indicates that the deceased's body had scratches on the lower abdomen, the assailants targeted a fragile part of the deceased's body. The evidence of strangulation on the deceased's neck brings to rest all doubt as to whether or not the appellant intended to kill the deceased.

We, therefore, find that the learned trial Judge correctly found that e the appellant acted with malice aforethought when he beat up the deceased and caused his death. We find no merit in this ground and accordingly dismiss it.

## Ground 2

Counsel for the appellant challenged the sentence that was given 1s to the appellant by the trial Judge. In doing so, she simply cited the case of Kyalimpa Edward Vs Uganda, Criminal Appeal No. 10 of f995, which sets down the principles that govern the O circumstances under which an appellate court may interfere with the sentence of a trial court. She prayed that this court finds that 20 the sentence of 28 years and 6 months' imprisonment was illegal and should be set aside and the convict accordingly released from prison.

We note that the appeLlant was actually sentenced to 2L years and 9 months' imprisonment and not the 28 years and 6 months referred to by counsel for the appellant.

' That aside, counsel for the appellant stated that the sentence was illegal. She never submitted on the illegality to demonstrate what was illegal about the sentence. Our study of the record of appeal shows that the trial Judge considered both the mitigating and s aggravating factors and deducted the period that the appellant spent on remand. We have found no illegality about the sentence that was passed by the trial Judge. We find no merit in the ground of appeal and reject it.

On the whole, the appeal fails and it is hereby dismissed. The Qo appellant shall continue to serve the sentence imposed by the trial court.

fv Dated at Fort Portal this. .. A... Day of r... ... Q.{ 2023.

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¹⁵ Buteera

Deputy Chief Justice

i-!

²⁰ Irene Mulyago a Justice of Appeal

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/ J Eva K. Lu -\

²⁵ Justice ppeal