[2025] UGCA 192

# s THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

#### CRIMINAT APPEAL NO. O410 OF 2O2O

# KYOMUGASHO CAROTINE APPETTANT

VERSUS

To UGANDA RESPONDENT

(Appeal from the judgment of the High Court at Mbarara (Katuntuka, Jl delivered on 12th November 2018 in Criminal Session Case No,OOg2 of 2Ol6l

#### 1S (Corom: Moses Kozibwe Kowumi, Florence Nokdchwo, Cornelio Kokooza Sobiiti, JtA)

### JUDGMENT OF THE COURT

#### 20 Background

The appellant was indicted, tried and convicted on two counts of mu,.der contrary to sections 188 and 189 of the penal Code Act. The appellanr was also convicted of attempted murder contrary to section 204 of the Penal Code Act. The trial court sentenced the appellant to 36 years and 10 months'imprisonment on each count with the sentences to run

25 concu rrently.

The facts upon which the appellant was convicted are that on 9th September 2015 at about 7.00pm, Kembabazi prisca and Ssekayon,bya Andrew, both deceased persons, were in an outside kitchen .with Nakawungu Anita preparing porridge. The appellant came to their compound and locked the door to the kitchen from the outside upon which Kembabazi inquired as t( who had locked the door.

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⁵ The appellant stood in the kitchen window and exchanged words with Kembabazi before throwing a bottle containing a flammable substance between the cooking stones and the fire gutted the kitchen. Kembabazi managed to call her husband Ssemogerere who rushed to the scene and unlocked the door before calling for assistance to have the threr: delivered to hospital. The appellant had been married to Ssemogerere and had left the home two weeks prior to the strange nocturnal visit. 10

Kembabazi and Ssekayombya died of respiratory failure due to upper airway obstruction caused by the burns. Nakawungu survived with extensive scars all over her body. The trial Judge based her decision to convict the appellant on the evidence of Nakawungu who identified the appellant by her voice, the evidence of Beinomugisha (pW3) who rode the appellant on a motorcycle after the alleged incident and on the dying declaration by Kembabazi recorded from her hospital bed. 15

The appellant raised an alibi to the effect that when she left Ssemogerere's home two weeks prior to the incident, she relocated to her parent's home and was nowhere near the crime scene on the day the incident happened. The Court disbelieved the alibi upon which she was sentenced to the 36 years and 10 months,imprisonment.

### The Appeal

The Appeal is premised on four grounds; -

- 1. The learned trial Judge e,red in law and fact when she relied on evidence of PWl a child of tender years without first conducting - 30 - a voire dire and wrongly convicted the appellant thereby occasioning a miscarriate of justice. - 2. The learned trial Judge erred in law and fact when he wrorgly evaluated the evidence of identification leading to participation of the appellant thereby occasionint a miscarriage of justice.

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- 3. The learned trial Judge erred in law and fact when she imposed a harsh and excessive sentence against the appellant thereby occasioning a miscarriage of justice. - 4. The learned trial Judge erred in law and fact when she failed to 10 consider the time spent on remand at the time of passing the sentence.

#### Representation

$\mathsf{S}$

Mr. Masereka Chan Geoffrey appeared for the appellant on state brief. 15 The respondent was represented by Mr. Rukundo Martin an Assistant Director, in the Office of the Director Public Prosecutions.

The Memorandum of Appeal which was filed out of time was validated by the court on application by Counsel for the appellant. Submissions 20 filed by Counsel were with leave of Court adopted as their final arguments and formed the basis for the determination of the appeal.

# Submissions by Counsel for the Appellant

On the first ground of appeal, it was submitted that Nakawungu Anita 25 who testified as PW1 was 11 years old at the time she testified in court on 22^nd August 2018. It was contended that the trial judge did not conduct a voire dire before recording her evidence which was irregular and occasioned a miscarriage of justice to the appellant.

Counsel relied on section 41 (3) of the Trial on Indictments Act [Cap 25] for the proposition that it was erroneous for the court to rely on the evidence of PW1 to convict the appellant. The court was urged to find merit in the first ground of appeal.

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### Submissions by Counsel for the Respondent

counsel for the appellant argued that the trial Judge conducted voire proceeding and it is erroneous for the appellant to contend otherwise. The court was urged to dismiss the first ground of appeal for want of merit.

Analysis and determination

15 As a first appellate court, it is our duty to re-appraise all evidence that was adduced before the trial court and come to our own conclusions on the facts and the law while making allowance for the fact that we neither saw nor heard the witnesses testify. see Kifamunte Henry v Ugand;r [1e981 UGSC 20.

20 The Black's Law Dictionary, 1lth Edition defines the term ,,voire dire,, to denote "the preliminory examinotion which the court moy make of one presented as o witness or juror, where his competency, interest etc is objected to." The requirement for trial Judges to conduct voire dire examinations is set out in section al (3) of the Trial on lndictments Act [CAP 25] which provides that:

"Where in ony proceedings ony child of tender yeors does not in the opinion of court understand the noture of on ooth, his evidence moy be received though not on oath, if in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of evidence and understonds the duty to speak the truth.

Provided thot where the evidence odmitted by virtue of this sub section is given on behalf of the prosecution, the accused sholl not be liable to be convicted unless such evidence is corroborated by some moteriol evidence in support thereof implicoting him."

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⁵ It can be discerned from the above provision that the purpose of conducting a voire dire is for the court to satisfy itself of the intelligence of the ch ild and his or her knowledge of the duty to speak the truth. The Court further establishes the capacity of the child to distinguish right from wrong.

We perused the record of proceedings relating to the examination o. PW1 before she was called to testify for the prosecution on 22nd August 2018. We found it expedient to reproduce the proceedings here below;

## "l proy to get wisdom.

Who ore you praying to? God. 15

Who is God? God onswers me.

Do you know the importonce of telling the truth?

^Iknow the importdnce ol telling the truth, When you telt the truth nobody will beat you, I sometimes sweor in the nome of God. ln the name of lesus. I sweor to tell the truth. tf you do not tell the truth they will beat you. I hove never totd lies,

Cou rt:

^Ihove conducted o trial within o tridl, the child understonds the importance oI telling the truth. Let her testimony be heard on oath."

Our conclusion based on the discourse between the trialJudge and pW1 as recorded is that the witness knew both the importance of an oaths and the duty to tell the truth. The nature of the responses pW1 made to the questions posed by the trialJudge further pointed to her possession of sufficient intelligence to appreciate the nature of the proceedings she was invited to take part in by the prosecution.

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⁵ ln Opolot Ben Bosco v Uganda [2023] UGCA 40 the court v,,hile determining the veracity of voire proceedings held thau -

> "ln orderfor o voire dire test to stond, it ought to comply with whether the child hos an understonding of the obligotion to speok the truths on the witness stond; hos the copocity to distinguish right from wrong and hos the retiobility to prove thot ot the mdteriol time, she hod conceived on occurote impression of the occurrence concerning which she stonds to testify ond hos o memory sufficient to retoin on independent recollection of the occurrence ond the copocity to express in words such memory of the occurrence when osked simple questions."

We thus find that the trialJudge conducted a voire dire examination the record of which is found on page 11 of the record of proceedings. We 20 thus find no merit in the first ground of appeal which we accordingly dismiss.

Ground of Appeal No.2

The learned trial Judge erred in law and fact when she wrongly evaluated the evidence of identification leading to participation of the appellant thereby occasioning a miscarriage of justice. 25

### Submissions by Counsel for the Appellant

The trialJudge was faulted for relying on the alleged identification ofthe appellant by PW1 based on her voice and not visual observation sin:e it was dark at 7.00pm. Counsel submitted that there is no standard lorm of any person's voice and it is easy to twist, or imitate a voice to pretend to be someone else especially when one wants to commit an offence. l0

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⁵ It was further submitted that the court convicted the appellant because she had stayed with PW1 for some time and they used to talk. Counsel however faulted the trial Judge for convicting the appellant when no identification parade was conducted for pW1 to confirm that she knew the appellant. lt was further pointed out that no evidence was le.l to show how far PW1 was from the appellant during the incident iri question and no evidence was retrieved from the crime scene to suggest that she had been there. 10

Counsel argued that it was not established by evidence that pW1 had remained communicating with the appellant when the latter left Ssemogerere's home and PW1 had not reported that she had seen or heard the appellant as the assailant which weakened the prosecution case. 15

The evidence of Beinomugisha (pW3) to the effect that he saw the appellant in the vicinity of the crime scene at g. Oopm on the day in question and even gave her a lift on his motorcycle was attacked by Counsel for being unreliable. lt was argued that it was dark and pW3 could not have correctly identified the appellant since he was not with her for sufficient time. 2A 25

Counsel for the appellant further faulted the trial court for relying or the dying declaration attributed to Kemirembe. lt was argued that whereas she claimed to have identified the appellant as the assailant, it was dark and the prevailing conditions could not have enabled her to identify the ^assa ila nt.

The appellant's Counsel relied on Bogere Moses v Uganda [199g1 SCCA 22; Lt. Jonas Ainomugisha v Uganda [2017] SCCA 12 and Sabwe Abdu v Uganda [2010] SCCA 15 to support his submissions.

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#### ⁵ Submissions by Counsel for the Respondent

It was contended that the trial Judge properly evaluated the identification evidence adduced by the prosecution during the trial. Counsel for the respondent suDported the finding of the trial court to the effect that PW1 knew the voice of the appellant since they had stayed in the same home for 2y2yearc and this had been confirmed by the appellant during the trial.

Counsel for the respondent submitted that the prosecution could nc t be faulted for not having ordered for an identification parade to be carrierl rs out since PW1 had known the appellant prior to the incident. lt was further argued that PW3 had seen the appellant in the vicinity of the crime scene at 8.00pm and eve.r given her a lift on his motorcycle which destroyed her alibi evidence.

#### Analysis and determination 20

The trial court while evaluating the evidence on identification believed PW1 who told court that she had stayed with the appella ntfor 2%yzars prior to the incident and thus could ably recognize her voice. Thc appellant also in cross examination stated that she used to give orders to PW1 from inside the house and the latter would obey implying that she was familiar with her voice.

The Court further relied on the evidence of pW3 who stated that he had known the appellant as a village mate for two years. That on the day the crimes were committed at 8.00pm, the appellant stopped pW3 askirg to be taken to Mbarara Referral hospital but she changed instructtons midway the journey and asked to be dropped. She started stopping motorcycles heading towards Ruti trading center. 30

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⁵ PW3 told court that the appellant was dressed like a man and they spent thirty minutes together. lt was his evidence that the appellant had a shop at the time and they had spent a day together preparing food at a funeral a few days before the incident. The court found the evidence cre<,ible and noted that boda boda riders are known for engaging their custornerr both for security reasons and for purposes of future business. 10

The Prosecution introduced in evidence a statement recorded by the case lnvestigating officer from Kembabazi a few days to her death. She narrated how the appellant locked the kitchen door. on her inquiry as to who it was, the person retorted that they should wait for what was to happen next. Kembabazi moved to the window and saw someone who had covered the face. That when the person reached out to get something from the pocket, the face was exposed and she noticed it wa: the appellant.

At the time Kembabazi made lhe statement she was able to talk and appreciate all around her, but her hands were heavily bandaged so she could not sign the statement. The statement was admitted by the court as a dying declaration under section 30 of the Evidence Act. The document was later considered by the court to corroborate the evidence of PW1

The identification evidence was attacked on three fronts. The contention that PW1 could not have ably identified the appellant by voice, the inability of PW3 to identify the passenger he gave a lift to on the day of the incident and the dying declaration made by the deceased about an event that took place at 7.00pm when it was dark. An issue was also raised about the failure by the prosecution to have an identification parade conducted.

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d/J - We find it imperative to analyse whether the evidence relating to the identification of the appellant by voice by pW1 should have been relied on by the trial court. We find guidance on the subject of identification by voice from Sakar on Evidence,l4th Edition,1993 at page 170 where it is stated that; - - "lf the court is satisfied obout the identificotion of persons by evidence of voice olone, no rule of low prevents its occeptonce os the sole bosis for conviction. possibilities of mistokes in identifying persons by voice especiolly by those who ore closely fomilior with the voice could orise only when the voices heard ore different from the normal voices on account of the situotion or when identicol voices are possibte from other persons....." 10 15

It is also established that the principles which apply to a visual zo identification apply equally to voice identification and the ris,. of mistakes in identifying a voice is as great as that involved in visual identification. (See. ti v R (2003)139. Criminal Reports 281.)

- ln considering whether factors favouring visual or voice identification zs existed, courts rely on a number of factors including the nature of light; the time taken during the interaction; the distance between the witness and the assailant; and the previous knowledge of the person by the witness. See. Abdallah Nabulere & Another v. Uganda [1979] UGCA 14. - ln Arthurs v. AG for Northern treland (1970) 55 Criminal Appeals R IGl, it was observed that courts are exceptionally cautious when the circumstances in which the opportunity of the identifying witness to recognize a suspect was so lin ited, or the witness,s familiarity with ^a suspect was of such a short duration. 30

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⁵ The appellant admitted that she had spent 2 Tz years with pWj. and the late Sekayombya in the same home where the incident happened. lt was her evidence that PW1 would obey her instructions whenever she tarked to her from inside or outside the house which confirmed that the voice was familiar to PWl. Evidence by both pW1 and her father Ssemogerere was that the appellant had left the home two week prior to the incident. 10

While re-evaluating the evidence placed before the trial court, we are required to take into account the fact that we had no opportunity to observe the witnesses during the trial. A. decision of the trial court based on the demeanour of a witness is thus accorded its due weight. (See.

Flora Mbambu & Another v Serapio Mukine (19791 HCB 47 .

The trial Judge remarked on the demeanour of pW1 in the excerpt we reproduce here below; -

"Court closely wotched PW1 Nokowungu Anito the moment she sow the accused in court; her demeonour chonged, she storted crying and court hod to call in o sociol worker to sit with her. Then court decided thot she should testify with her bock to the accused whereupon she settted and testified with confidence. I found the testimony of pW7 convincing.,, 2A

The impression of the trial Judge on the demeanour of pW1 is binding on this court which did not see her testify. She was a truthful witness who was close to the appellant and knew her voice well. We find no 30 reason to fault the trialJudge for basing her decision on the evidence of PW1.

We further noted that the trial Judge was alive to and correctly warned herself about the need for corroboration of pW1,s evidence which shr: found in that of PW3 and the Dying declaration.

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⁵ Counsel for the appellant further faulted the trial judge for relying on the evidence of Beinomugisha (PW3). This witness had known the appellant for two years as the wife of Ssemogerere who had a shop in the local trading centre. PW3 told court that he used to operate his boda boda business in the locality. PW3 further spent 30 minutes with the appellant as they rode to Mbarara town, he talked with her and even noted how

"she wos dressed like a mon."

PW3 further had another opportunity to observe the a ppella nt when she was stopping boda bodas heading to Ruti. He had also spent a day with the appellant preparing meals ?t a funeral in the same period. Using the parameters set out in the case of Abdallah Nabulere v Uganda (supra), we also find that PW3 ably placed the appellant at the scene of the crime and not at her parents'home as she stated in the alibi she raised.

The dying declaration attributed to the deceased was challenged for the reason that the incident took place in the dark at 7. OO p.m. and the cour\_ should not have relied on it to convict the appellant. The Black,s Law Dictionary,6th Edition defines a "dying declorotion" as: 20

"A stotement made by a person who believes he is obout to die in relerence to the monner in which he received the injuries of which he is dying,or other immediate couse of his deoth ond in reference to the person who inflicted such injuries or the connection with such injuries of o person who is chorged or suspected of having coused them."

Section 30 of the Evidence Act (CAP 8) renders Dying declarations admissible in evidence in the following terms;

"Stotements, written or verbal, of relevont facts made by ^d person who is deod, or who connot be found, or who has

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⁵ become incapoble of giving evidence, or whose attendonce cannot be procured without on omount of deloy or expense which in the circumstances of the case dppeors to the court unreosonoble, ore themselves relevant facts in the following coses-when the statement is mode by a person os to the couse of his or her death, or os to any of the circumstonces of the transaction which resulted in his or her death, in coses in which the couse of that person's death comes into question, the statements dre relevont whe\$er the person who made them was or wos not, ot the time when they were mode, under expectation of deoth, and whotever may be the noture of the proceeding in which the cause of his or her deoth comes into question...."

Kemirembe made the statem€nts in relation to the injuries she later succumbed to. she was not in a position to sign the statement but her evidence corroborates that of PW1 on all material particulars. The narration about the locking ofthe door and the subsequent exchange of words are the same both in the statement and in the testimony of pwL. 20

we are alive to the principle that dying declarations are taken witlr caution as the deceased was not there to be cross examined, and although corroboration of such statements is not necessary as a matter of law, iudicial practice requires that corroboration must be sought. See Tindigwihura Mbahe v Uganda, SCCA No.9/1987; Habib Salim v Uganda 120231UGCA 139. 25 30

The question of the nature of light in the kitchen which turned into the scene of crime never arose from either side during the trial. vihat however was not disputed was that the late Kemirembe was preparing porridge implying there was a fire that must have provided some form of illumination.

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- It is also a fact that the appellant stood in a window and the deceased had walked to it to see who h;,d locked the door which brought her in close proximity with the appellant. We are in agreement with the trial Judge that the deceased ably identified the appellant. - Whereas the appellant vehemently denied that she did not know the late Kemirembe, the evidence by pW2, their husband does not support the assertion. PW2 told court that the deceased had a house in a distance of two kilometres from where the appellant stayed.pW2 further told court and was not challenged on the evidence that the appellant had 10 - refused Kemirembe to come and see her children and had threatened to harm her. 15

We found PW2's evidence in respect to the behaviour of the appellant vital on her prior knowledge of the deceased. lt was a crucial piece of evidence which should have been rebutted but was left unchallengerl and the inference to make of it is that it is true. The coincidence that the incident took place when the appellant had just left the home and knew that Kemirembe had returned tr it further points to her as the culprit. 20

2s We are of the opinion that whereas it was 7.00pm, there was ample light from the fire that enabled the deceased to identify her co\_wife, the appellant, as the assailant who attacked them. The dying declaration was further corroborated by the evidence of pW1 and pW3.

We find no merit in the second ground of appeal. lt is accordingly 30 dismissed.

Ground of Appeal No.3

The learned trial Judge erred in law and fact when she imposed a harsh and excessive sentence against the appellant thereby occasioning ^a miscarriage of justice.

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# ⁵ Submissions by Counsel for the Appellant

It was submitted that the trial court did not take into account the mitigating factors favouring the appellant and as a result imposed ^a harsh sentence which occasioned a miscarriage of justice. Counsel further argued that this court has the duty to ensure consistency in sentencing by re-sentencing the appellant to what is appropriate in line with similar cases.

### Submissions by Counsel for the Respondent

For the respondent it was argued that the position of the law is th:t an appellate court sh ou ld not interfere with a sentence imposed by the triat court save on known principles. lt was submitted that the sentence imposed was neither harsh nor excessive given the circumstances in which the offences were commrtted. 15

Counsel cited Ssemaganda Sperito & Another v Uganda, CACA No. 45612016 in which a sentence of 50 years was confirmed by this court against the appellant who murdered his brother. Reference was also made to Florence Abbo v Uganda, CACA No.188 of 2013 in which this court confirmed a sentence of 40 years for murder. 20

#### Analysis and determination

We are alive to the position of the law that a sentence imposed by the trial court shall only be set aside where it is either too harsh or too low as to cause a miscarriage of justice or where it was premised on a wrong principle.

^Asentence can also be set aside where the trial court ignored to cons ider an important factor that would have affected the quantum of thc sentence. See Livingstone Kakooza v Uganda, SCCA No.17 of 1993; Jackson Nzita v Uganda, SCCA No.19 of 1995.

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5 10 The gist of the complaint is that the trial judge did not consider the mitigating factors and thus imposed a harsh and excessive sentence. ln Aharikundira Yustina v. Uganda [2008j UGSC 49, the court held that ^a sentence is deemed to be harsh and excessive if it is established to be outside the range of sentences previously imposed by the court: for similar offences. The necessity for courts to weigh both aggravating antJ mitigating factors while imposing sentences was underscored by the court in the same case.

15 The Constitution (Sentencint Guidelines for Courts of Judicature) (Practice) Directions, 2013 in part 1 of the 3d schedule provide for ^a starting point of 35 years and a sentencing range of 30 years up to death when determining sentences in murder cases. The sentence of 35 years imposed by the trial court was therefore within the permissible ran11e.

zo Paragraph 6 (c) of the Constitution (sentencing Guidelines for the Courts of Judicature) (practice Directions), 2013 however requires courts to take into account the need for consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offences committed in similar circumstances. We therefore zs reviewed a number of cases to gauge whether the imposed sentence was consistent with others for a similar offence in almost sirrilar circu msta nces.

30 ln Ssemaganda Sperito & Another v. Uganda (supra), this court upheld a sentence of 50 years while in Florence Abbo v Uganda (supra), the court imposed 40 years. The appellants in the two cited cases committed single murders unlike in the instant appeal where two murders were committed and another person crippled for the rest of her life.

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- 5 ln Twinomugisha Andrew v. Utanda [2024] UGCA 318 a sentence of death for the murder of a minor was reduced to 35 years and in Aharikundira Yustina v. Uganda [2018] UGSC 49 a death sentence was substituted with 30 years' imprisonment. - 10 ln Uwayimana Molly v. Uganda, CACA No.1O3 of 2OO9 the appellant was convicted of murdering her husband and was sentenced to death. On appeal, the court substituted the sentence with 30 years. In Okuru lsiah v Uganda, CACA No.09 of 2018 this court upheld a sentence of 36 years where the appellant - 15 was convicted of murdering his son and throwing the body in ^a river.

We have considered allthe mit'gating and aggravating factors, as did the trial judge and found that the imposed sentence was neither harsh nor excessive,

We find no merit in the third ground of appeal.

Ground of Appeal No.4.

25 The learned trialJudge erred in law and fact when she failed to consider the time spent on remand at the time of passint the sentence.

Submissions by Counsel for the appellant

It was submitted that the trial Judge did not arithmetically deduct the 30 period spent by the appellant on remand from the 36 years and ¹⁰ months imprisonment' imposed by the court.

## Submissions by Counsel for the Respondent

It was submitted that the trial Judge duly complied with the constitutional requirement in Article 23 (8) of the Constitution and deducted the period spent by the appellant on remand. 35

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#### ⁵ Analysis and determination

At page 9L of the record of proceedings, the trial Judge considered the fact that the appellant was a mother of a four-year-old which mitigated the punishment from a life sentence. The court then imposed a custodial sentence of40 years for each count. The Court then deducted the 3 y.:ars

and 2 months the appellant had spent on remand and sentenced her tu 36 years and 10 months. 10

we thus find it erroneous for cr unsel for the appellant to argue that the period spent on remand was not deducted. This ground of appeal fails for want of merit. ln the circumstances, we find no merit in the appeal which we accordingly dismiss.

Signed, delivered and dated at Kampala on the 8D day of June 2025.

.+1^

Moses Kazibwe Kawumi Justice of Appeal Florence akachwa Justice of Appeal Cornelia Kakooza Sabiiti Justice of Appeal )q. 30 Page 18 of 18 20 . C#S.=\*,=\*-,\*J