[2022] UGCA 90

## ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBARARA

# CRIMINAL APPEAL NO. 235 OF 2OII

(Coram: Egonda-Ntende, Bamugemereire & Madrama, JJA)

HABTMANA M0SES) APPELLANT

VERSUS

### UGANDA} RESPONDENT

(Appeal from the decision of the High Court of Uganda Holden al Rukungiri in Criminal Session Case No. 57 ot 2012 before J. W Kwesiga, J delivered on l?h 1ecember, 2012)

### JUDGMENT OF COURT

The Appeltant was indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act, cap 120 taws of Uganda the facts of the triaI were that lhe Appettant on 15rh of August, 2010 at Bubate village in Kanungu district kitted Ntamuhanga Stanley, his father. The Appettant attacked the deceased on 15rh August 2010 and assau[ted him to death. He was arrested in the process of fleeing the scene of the crime. The Appettant was tried and convicted as charged and sentenced to tife imprisonment. Being dissatisfied with the decision of the triat judge, the Appettant appeated to this court against conviction and sentence on the

- fo[lowing grounds: 25 - l. The learned triatjudge erred in law and fact to convict the Appettant of the offence of murder when the ingredients of malice aforethought had not been proved. - 2. The learned triatjudge erred in law and fact to convict the Appettant of the offence of murder without considering the defences of accident and intoxicatio n. 30 - 3. The learned trial judge erred in fact to sentence the Appellant to life imprisonment which was a harsh sentence.

⁵ Learned Counse[ Ms Kentaro Specioza on state brief represented the Appettant while learned Counsel Mr. Kyomuhendo Joseph, Chief State Attorney represented the Respondent. The Appetlant attended court via video tink from Mbarara main prison. The court was addressed in written submissions and judgment was reserved on notice.

#### Submissions of Appellant's Counsel 10

Ground I of the appea[: The learned trial judge erred both in law and in fact convict the Appettant of the offence of murder when the ingredient of malice aforethought had not been proved.

The Appeltant's CounseI submitted that section l9l of the PenaI Code Act, defines malice aforethought to mean an intention to cause the death of any person. She retied on Nakisenge Kyazike v Uganda; Supreme Court Criminal Appeat No l5 of 2009 where the Supreme Court made reference to section 191 (supra) for the definition of malice aforethought and stated that the standard of proof that a person intended to kilt the deceased and had knowtedge that his or her act would probably cause the death of 15 20

some person had to be beyond reasonabte doubt. Counsel further relied on Nanyonjo Harriet & another vs Uganda SCCA No 24 of 2002 for the proposition that intention is deduced from the circumstances surrounding the kitting inctuding the weapon and the part of the body that

was injured. 25

> The Appettant's CounseI further retied on the testimony of PW3, Kemirembe Rachel who informed court that she stayed at home when the Appeltant came drunk and started beating the deceased using his hands by stapping him. The evidence of PWI does not indicate what part

- of the body the Appetlant was slapping. Relying on the authority of Nanyonjo Harriet & another versus Uganda (supra), the Appettant was using his hands to stap the deceased. The question is whether the hands can be categorised as a weapon and the answer is no. Counsel contended that by stapping the deceased using his hands, the Appettant had no intention to kitt the deceased. 30 35 - Secondly, considering the circumstances surrounding the kitting, PW3 stated that the Appetlant came whi[e drunk and started stapping the deceased and therefore the Appettant was in an intoxicated state of mind

⁵ and coutd not have formed an intention to kilt the deceased. She concluded that the circumstances surrounding the offence does not show that the Appettant kitled the deceased with matice aforethought and prayed that the ground of appealsucceeds.

Ground 2: The learned trial judge erred both in law and in fact convict the Appellant of the offence of murder without considering the defences of accident and intoxication. 10

The Appeltant's CounseI submitted that according to the testimony of PW3, the Appettant was drunk when he was stapping the deceased. ln his defence, the Appettant stated that the deceased was drunk, it rained on him and this caused the death of the deceased. He narrated how he was drinking with the deceased in different bars. The Appettant teft the deceased in a bar and went home. When he was at home, the Appettant saw the deceased trying to enter his house with difficutty because of his state of drunkenness. The Appettant tried to hetp the deceased by opening the door for him but the two men kept fatling down. 20

The Appeltant's Counsel submitted that the circumstances surrounding the Appetlant's death showed that both the deceased and the Appettant were intoxicated and it is hard to te[[ whether the death of the deceased was on account of the Appettant's action or whether it arose from his

own intoxication. Further CounseI submitted without prejudice that the Appetlant's actions of slapping and pushing the deceased cannot be said to be that of a person who intended the deceased to die and therefore the death occurred accidentatty. She prayed that the honourab[e court accords the Appettant the defences of intoxication and accident and discharges him from the conviction of murder. 30

# Submissions of the Respondent's Counse[.

ln repty Mr Kyomuhendo Joseph, Chief State Attorney submitted on ground one of the appeaIalso relied on section 191 (a) of the PenaI Code Act for the definition of matice aforethought. This is an intention to cause

the death of any person, whether such person is the person actually kitled or not; or knowledge that the act or omission causing death wilt probabty cause the death of some person, whether such person is the person actua[[y kitted or not, although such knowledge is accompanied

- ⁵ by indifference whether death is caused or not, or by a wish that it may not be caused. ln the Tubere S/0 0chen versus R [1945] EACA 63 it was hetd that in arriving at a conc[usion as to whether malice aforethought has been estabtished, the court must consider the weapon used, the manner in which it was used and the part of the body injured. Further the - court held that there was no hard and fast rule in determining malice aforethought and every case has to be judged on its own facts. This principle was amplified by the Court of Appeat in Chesakati Matiya v Uganda; CACA Number 95 of 2004 tor the hotding that malice aforethought can among other things be established from the conduct of the accused. 10 15

The Respondent's Counsel submitted that the Appel[ant unlawfully and with malice aforethought caused the death of the deceased. He also relied on the testimony of PW 3 Kemirembe Rachael, whom the learned triat judge believed to be a credible witness and totd court that on the

- fatefut day she was at home together with her deceased grandfather and the Appettant. The Appettant started beating the deceased. He was using his hands and stapping him. When he got up, he pushed him and he hit the back of his head on the ground. After some time, he got up and catled her and a young chitd to go into the house and locked the door. They 20 - entered the house and ctosed the door. Thereafter the Appetlant hit the door with stones and the door broke. The Appetlant came and slapped and kitted the deceased. The deceased totd her to go and ca[[ her uncte one Bahirwa who came. They found when the deceased was already dead. She had teft the accused beating the deceased from the sitting-25 - room and she saw blood in the deceased's mouth. ln cross examination she testified that on that day, the deceased and the accused did not quarrel atthough they used to quarre[. 30

PW4 Bahirwa Jackson testif ied that she was ca[[ed by PW 3 and his house was about a mite away. They met the Appeltant and arrested him. When he went to the home, he found that his father was dead and the body was in the sitting-room. ln cross examination he testified that the Appettant was always harassing the deceased. The deceased was about 70 years old.

- ⁵ The Respondent's CounseI further referred court to the defence of the Appetlant that his father was steeping in the veranda of his house and PW3 was cooking. When he went to see his father (the deceased), he found when he had fallen down while holding the key to the house. He was also fatting down and got the key from him and kept opening and - fatting. He catled PW3 who found the deceased covered in mud whereupon she ran away. He submitted that the learned triat judge correctly arrived at the finding that the killing of the deceased had been was with matice aforethought. He admitted that there was no evidence that the Appellant used a deadly weapon. He invited the court to take into 10 - account the considerable age difference between the accused who was 38 years, was youthful and energetic and the deceased who was 70 years old and was frait. The Appellant pounced on the deceased whom he boxed, pushed and fett down and kicked him. The deceased tocked himsetf in the house but the Appeltant broke the door and continued 15 - assautting the deceased. Further the post-mortem reveals that the deceased died as a resutt of a closed head injury and deduced that the head was one of the body parts that the Appetlant targeted. Even if the injury was caused by the push of the deceased as elaborated by PW3, the Appettant exerted a lot of energy into the push and caused it. 20 - Submissions of the Respondent's Counsel on ground 2: 25

With reference to the decision of the Supreme Court in Nanyonjo Harriet and another v Uganda (supra) the Respondent's CounseI invited the court to infer malice aforethought from the circumstances. He submitted that that was the most probab[e and natural consequence of the prolonged

- and continuous assautt of a ?0-year-o[d fraiI man by a 38-year-old young youthful and energetic Appetlant. The Appettant used his hands and legs in a savage manner to assault the deceased. Further the Appetlant had a history of viotence and harassing of the deceased and on the fatefuI day formed the intention to finish him. He further contended that a hand and 30 - a leg of a 30-year-old youthfut person is a lethal weapon as against ^a 70-year-otd person. Further, he stated that the assault on the deceased was a protonged and unprovoked assault where the Appetlant stapped, kicked and pushed the deceased to fe[[ and hit his head on the ground. 35

⁵ Upon realising that the deceased had died, the Appetlant attempted to run away but was intercepted by PW4.

He contended that the conduct of running away is not that of a person who did not intend to cause death.

10 The Respondent's CounseI further submitted that the Appeltant tied in his testimony. He totd court that he saw his father sleeping in the veranda of his house ca[[ing on Kemirembe who was cooking. He reached when his father had falten down white holding the keys of the house and he a]so kept on fatting down when he got the key from him. 0bserved that this testimony contradicts the evidence of PW3 and PW4 in that PW3 ran from

- the scene of crime to catl PW4 whom she informed that the Appetlant was beating the deceased. This was confirmed by PW4 who arrested the Appeltant. Counsel submitted that ties are inconsistent with innocence (see Chesaki Matiya v Uganda (supra) and the question was if the Appettant had not committed the offence, why did he have to [ie on oath? 15 - The above was considered by the learned triatjudge. Counsel conctuded that at the time of assaulting the deceased, the Appetlant's intention was clear and it was to cause the death of the deceased whom he hated and harassed. ln the circumstances he prayed that the court finds that the ingredient of malice aforethought was proved beyond reasonable doubt. 20 - With regard to the 2nd ground of whether the learned triat judge erred both in law and fact to convict the Appeltant of the offence of murder without considering the defences of accident and intoxication, the Respondent's Counsel submitted the Appettant wants the court to believe that he was under the influence of atcohol at the time he murdered the 25 - deceased. He relied on section 12 (l) of the PenaI Code Act which provides inter alia that intoxication shal[ not constitute a defence to any criminal charge. Secondly, intoxication shatt be a defence to any criminal charge if by reason of the intoxication, the person charged at the time of the act or omission comptained off did not know that the act or omission was 30 - wrong or did not know what he or she was doing. Thirdly, the person charged was by reason of intoxication insane temporarily or otherwise at the time of such act or omission. Finatly, it is stated that intoxication 35

⁵ shatt be taken to account for purposes of determining whether the person charged had formed any intention.

The Respondent's Counsel submitted that the defence of intoxication is not appticabte in the circumstances. Firstty, it does not pass the tests [aid down in the Penal Code Act. As a question of fact the Respondent's Counsel maintains that the Appettant was not drunk at the time when he assaulted the deceased. He was in fu[[ control of his mentaI faculties and

- knew what he was doing and the consequences of his actions. The Appettant described chronologicalty the events of the day as they transpired save for the assau[t which he knew wou]d incriminate him. He - told a convenient lie. He narrated they drunk from certain bars for two hours and after that they went to another bar and started drinking and both he and the deceased got drunk. CounseI referred the court to the testimony of the Appettant. He concluded from the testimony that the Appeltant was not drunk and was well oriented in both time and place. 15 - He managed to identify the peopte who arrested him. The lies of the Appettant confirmed that he knew what was happening. 20

The Respondent's Counsel further submitted that the court considered the defence of intoxication and correctty pointed out that the circumstantiaI evidence and other circumstances negate the Appettant's

purported defence of intoxication. This included the fact that the Appeltant broke the door after PW3 and the deceased attempted to avoid the a ssa u [t. 25

Ground 3 of the appeal

The tearned triat judge erred in fact to sentence the Appeltant to tife imprisonment which was a harsh sentence. 30

Ground 3:

The tearned triat judge erred in fact to sentence the Appellants to life imprisonment which was a harsh sentence.

Submission of the Appellant's Counse[:

The Appettants CounseI submitted that by imposing a sentence of life imprisonment, the triat judge imposed a very harsh sentence. She 35

- ⁵ contended that the triatjudge did not put into consideration the mitigating factors. These included the fact that according to the defence evidence, both the Appettant and the deceased were intoxicated. The Appettant is aged 48 years and can still be a useful citizen if he serves a term of sentence and goes back to society. He is a first offender and for the period he has already been in custody, he has already reformed and can be useful to society. Counsel retied on Atiku Lino v Uganda; Court of Appeal Criminal Appeat Number 0041 of 2009 where the Appetlant had 10 - been convicted of murder and sentenced to tife imprisonment. 0n appeat, the Court of Appeal set aside the sentence and imposed a term of 20 years' imprisonment as appropriate. She prayed that the Appettant be sentenced to 20 years' imprisonment excluding the period spent on remand which period ought to start running from the date of conviction. 15

# Respondents repty to ground 3

ln repty, the Respondent's Counsel submitted that the sentence of life imprisonment imposed on the Appettant is lawfuI and actually lenient given the circumstances under which the Appettant murdered his father. He further relied on Kiwatabya Bernard v Uganda; Criminal Appeal number 143 of 2001 also cited with approvat Kajubi Godfrey versus Uganda; Supreme Court Criminal Appeat number 20 ot 2014 for the proposition that an appe[late court is not interfere with a sentence imposed by a trial court which has exercised its discretion unless the exercise of the discretion is such that it results in the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where a trial court ignores an important matter or the circumstances which ought to be considered while passing the sentence or where the sentence imposed is wrong in principte. 20 25 30

The Respondent's CounseI submitted that the learned triat judge considered the mitigating and aggravating factors and came to ^a conclusion. Further that the deceased was a 70-year-o[d person who needed love and respect from the Appettant but instead got a raw deal of being beaten to death by his son. The sentence was compelted by the fact that the Appettant murdered his own father. CounseI further re]ied on Busiku Thomas v Uganda; SCCA Number 33 of 20ll for the proposition that in sentencing, the court should also consider the rights of the victim ⁵ of the crime as welt as the public interest. He conctuded that the Appettant was a danger to the community and ought to be put out of circulation.

With regard to the submission that the period the Appettant had spent on remand had not been deducted, the Respondent's Counset submitted that

this was lawful because a sentence of tife imprisonment is for the remainder of a person's tife and that position was settted in Kato Kajubi v Uganda (supra). Further Counsel submitted that the maximum penatty for murder is death and the Appeltant was only sentenced to life imprisonment which is more tenient given the fact that he murdered his own father. He prayed that this court upholds the sentence of imprisonment for tif e. 10 15

## Consideration of appeal

We have carefutly considered the Appettant's appeat, the submissions of Counsel and the law.

- This is a first appeal against the decision of the High Court in the exercise of its originat jurisdiction and we have discretion whether to reappraise the printed evidence on the record of appeat by subjecting it to fresh scrutiny and coming to our own conclusions on matters of fact and [aw. ln reappraisaI of evidence we are required to be cautious of our 20 - shortcoming as compared to the trial judge who had the advantage of hearing witnesses, is that we have neither seen nor heard the witnesses testify and shoutd defer to the conclusions of the judge on matters of credibitity and demeanour of witnesses whenever it is in issue (See the hotding of the East African Court of Appeaton the duty of a first appettate 25 - court in Pandya v R [1957] EA 336, Se[[e and Another v Associated Motor Boat Company [1968] EA 123, and the decision of the Supreme Court of Uganda in Kifamunte Henry v Uganda; SCCA No. l0 of 1997). The duty of this court is enabled by rule 30(1)(a) of the Judicature (Court of Appeal Rules) Directions, S.l No. 13-10, which provides that on appeaI from the decision of the High Court in the exercise of its originaljurisdiction, the 30 35

court may reappraise the evidence and draw inferences of fact.

We have accordingty subjected the evidence on record to fresh scrutiny. Grounds I and 2 of the appeat are intertwined in that they deat firstty with the conviction of the Appettant for the offence of murder on the ground

- ⁵ that the necessary ingredient of malice aforethought had not been proved and secondly for not considering the defences of accident and intoxication. The two defences in our view are intertwined in that accident and intoxication may prove or show that there was no malice aforethought and therefore the two grounds wit[ be considered together. - l. The learned triat judge erred both in law and in fact to convict the Appellant of the offence of murder when the ingredients of malice aforethought had not been proved. 10

2. The learned triat judge erred both in law and in fact convict the Appettant of the offence of murder without considering the defences of accident and intoxication.

ln considering whether the death was caused by an unlawfuI act, the learned triat judge retied on the testimony of PW3, one Kemirembe Rachael, the granddaughter of the deceased who witnessed the Appettant beating the deceased and pushing him to the ground. Secondly,

- when the deceased was in the house and the door had been tocked, the Appettant broke into the house, entered it and continued assaulting the deceased whereupon PW3, the only eyewitness went and fetched PW4 Mr. Bahirwa Jackson who upon arrivaI found that the deceased had already died. Secondty, the [earned triat judge considered the medical 20 - report showing that the deceased died from a blow or a'blunt trauma' from which he suffered a closed head injury. The [earned triat judge considered other evidence showing that the deceased was a weak old man with poor nutrition and a wasted body. The learned triat judge considered both the kind of injury which had been caused and the evidence of the assault. Most importantty this is what he stated: 25 30

It is most probabte that the closed head injury was a result of a fall. Kemirembe told court that before she left the scene, the accused had pushed the deceased who fell down. The accused person woutd sti[[ be responsible for lhe injuries that resutted from the fa[[ caused by his assault of the deceased.

Further the learned triatjudge considered the defence of intoxication and whether the accused had to take the benefit of intoxication because he became incapable of forming an intention to kitt or cause grievous bodity harm. He found that because the Appetlant could remember the events

of the day, it is not possible that he was intoxicated to the extent of having diminished responsibility. 40

⁵ The post-mortem report adduced in evidence by PWI Dr Mantumaine dated 16th of August 2010 is not in dispute. The post-mortem report exhibit PEI indicates that no autopsy was done. ln paragraph 9 the cause of death and the reasons therefore is indicated as fotlows:

> Close head injury secondary to grant trauma as evidenced by nasal bteeding and bruise on the right orbital region.

He further stated that no weapons were seen and the most tikety reason for the injury was a blow causing b[unt trauma. Among other findings or general observation was that the body had poor nutrition as'the body was wasted and pale'.

- We have carefulty considered the evidence of the onty eyewitness Ms Kemirembe Rachael who testified when she was 13 years o[d. She testified aller voire dire (a trial within a triat) was held to estabtish whether the witness was possessed of sufficient intettigence to justify the reception of her evidence whereupon and after satisfying the court, 15 - as a fit and proper witness, she was allowed to testify on oath. She testified on 26'h November 2012 and stated that she was 12 years otd. The offence took ptace on 15rh August 20'10 roughty 2 years previous so that and by deduction she was 10 years otd at the time of the commission of the offence. The record has her brief testimony as fo[[ows: 20 - Ntamuhanga Stantey is my grandfather he died on l5rh of August 2010. I know what kitted him. lwas present when he died. He had come from church on Sunday, I stayed at home with another chitd. Habyarimana Moses (my uncle) came white drunk. He started beating the deceased. He was using his hands. He was slapping him, when he got up he pushed him. He hit his back head on the ground. After some time, he got up, calted me and the younger chitd that we go inlo the house and lock up the house. We entered and closed the door. The accused hit the door with stones, the door broke inside, the accused came and stapped and kitted the deceased, grandfather told me to go and cat[ my ^uncle Bahirwa. 25 30 - Bahirwa came with other Bataka. We found grandfather atready dead. lhad left the accused beating him from sitting room, but we found the body on the bed. lsaw btood in the deceased's mouth. 35

lstarted crying, ldo not know what followed, the accused was arrested by a Bataka.

⁵ ln cross examination, she stated that he was not drunk that day atthough used to drink waragi.

He was the person preaching that day. ldid not go to church that the ldo not know whether the accused went to church.0n that day they did not quarret, atthough they used to quarre[. He used to send me to buy for him, he wou[d drink from home. lsaw him stapping and kicking the deceased. When ^I returned the accused had already been arrested. I had been with Co[[ines, who was 4 years otd. lonly my other uncte, Kenneth. He was in Kasese when it happened. He appeared drunk, he was fatling down and zigzagging.

The record of the testimony has some problems because of the way it was recorded without indicating which person the witness was tatking about. Presumabty the person who was falling down and zigzagging was the Appettant. Secondty, PW3 went away and did not see the deceased being kitted. She onty stated that she teft the Appettant assaulting the deceased. Her statement that she was present when he died is ^a contradiction. Secondty, it is not clear whether the deceased was at home when the Appettant came and started beating him. However, the testimony shows that the witness was at home with another child. She does not mention that she was at home with the deceased. 15 20

PW4 Mr. Bahirwa Jackson stated that the deceased was his father and the Appettant is his younger brother. 0n 15th August 2010 at around 7 PM he was catted by Kemirembe (PW3) on the ground and that the accused was beating his father and that he shoutd come. His home was about I mile away. He catled another person whom he did not know that the accused was beating his father. They met the accused on the way and arrested him. When they went home, they found that his father was dead. 25 30

The body was in the sitting-room and he had fatlen over a chair and his head was hanging. He put the body down on the mat and there was a little btood on his shirt. ln cross examination he confirmed that he found when the deceased was already dead. Particularty this is what he said:

- He used to drink waragi. He was smelling atcohot. Accused had been arrested three times. lhad no grudge with the accused. He was atways harassing the deceased. - From the printed evidence, the person who was smetling of atcohol was the deceased.

- ⁵ ln his defence, the Appeltant gave evidence on oath. His testimony is that on l5th August 2010, he had spent the night at home and the next morning he went to greet his father who told him that he was going to church where there was a function. They had a visiting Reverent. They went to church together. After church, they drank at Kwizera's bar for 2 hours. - After 2 hours they went to Kamali's bar. They started drinking and both of them got drunk. He totd his father to go home. He went home between 7 PM and 7:30 PM. Most importantty he stated that he went to the home of the deceased and tried to hetp him go inside. He got the key from the deceased and they kept fatting down and the deceased also kept on 10 - fatting down. ln other words, they were both drunk. He does not reca[] assautting the deceased. 15

The learned triat judge disbelieved this testimony. We have tried to pick what is consistent with the prosecution testimony. This inctudes the fact that the deceased had also taken atcohoI and it is tikety that the deceased and the Appettant had been out drinking together. Secondty, the Appettant

placed himsetf at the scene of the crime and the testimony of PW3 indicated that he assautted the deceased. The injury which caused the dealh was a blunt trauma injury which the learned triatjudge also found that the [ikely cause was the fatting of the deceased after being pushed by the Appetlant. 20 25

The learned triatjudge estabtished that no weapon was seen by anybody. This is what he stated:

However, there is evidence that the accused infticted several [aws. He stapped and kicked the deceased who was both weak and a man of advanced age. There was a great deaI of force used. This is inferred from the medical report that the deceased suffered ctosed head injury that led to bteeding from the nose. lt is most probable that the closed head injury was a resutt of a fa[[.

We have not found any evidence that the Appetlant used a great deal of force on the deceased. What is clear from the testimony is that the Appettant stapped the deceased and pushed him. The post-mortem report shows that the deceased was weak and emaciated. The most likety reason is that he had fatten from the assault and hit his head and this was the onty death causing injury he suffered. Coupled with the fact that the prosecution witness PW3 stated that the Appeltant was a zigzagging, 35

- ⁵ it is tikety that he was very drunk. The fact that he could remember what happened on that day is countered by the fact that the witness saw him zigzagging which is a ctear indication that the Appettant was drunk at the very materiaI time. As to when during the day, he had a c[ear memory is in issue. At what point in time did the Appettant reach the point of walking - in zig zags? 10

ln the circumstances of this appeat, we are of the considered view that the Appettant is entitted to the benefit of doubt and find that there was no sufficient evidence to estabtish malice aforethought. Ground I of the appeal succeeds and the conviction of the Appellant for the offence of murder is hereby set aside. We find that the Appettant was guitty of

- assaulting his father and that the fatat injury on the deceased was caused by his father fatling down. The deceased had also been drinking but there is no evidence to suggest whether he was drunk other than in the testimony of the Appellant. PW4 stated that he smelt of alcohol. 15 - Having allowed ground 1 of the appeat, we do not have to consider ground 2 of the appeal because the sentence fottowed a finding that the Appeltant was guitty of murder. We set aside the sentence and would substitute it with a sentence for the offence of manstaughter. We find that the Appettant is guitty of manslaughter contrary to section 187 of the Penat 20 - Code Act. Under section 190, a person who commits the felony of manslaughter is liabte to imprisonment for life. The offence is also triabte by a Magistrates Court. 25

We have carefutly considered the circumstances. The Respondent's Counsel submitted in the triaI court that the Appettant had no previous criminaI record. He submitted that the Appettant who was then a convict behaved in a cruel manner when he kitted his own father. That the acts were not provoked and he just assaulted an old man which ted to his death. He prayed for a deterrent sentence. 0n the other hand, the defence indicated that he had been on remand for 2 years. He was remorseful 30

and prayed for a lenient sentence. The record shows that the Appettant was 34 years old at the time he was charged. He is a married man and a son of the deceased. Having kitted his own father when he was in a state of drunkenness is a terrible punishment in itself. He is a first offender as he has no previous record. The testimony of PW4 that the Appe[[ant used ⁵ to assault the deceased and that he was arrested 3 times was not proved by the prosecution through potice records. We are satisfied that the Appettant has no previous record of conviction.

ln Ainobushobozi Venancio v Uganda; Court of Appeat Criminal Appeat No.242 ot 2014, the Appettant was convicted by the High Court of the offence of manslaughter contrary to sections 187 and 190 of the Penat Code Act and was sentenced to 18 years' imprisonment. His appeat against sentence to the Court of Appeat was allowed. The facts were that the Appettant got annoyed and assau[ted the deceased. He pushed the deceased down and the deceased fetl on a tree stump whereupon he 10

- became unconscious and was rushed to a nearby clinic from where he died soon thereafter. The Court of Appeat considered the fact that the Appettant was a first offender, he had spent 3 years on remand prior to his trial and conviction and was 2l years otd at the time of commission of the offence. He was remorseful. The court also considered the fact that 15 - he had committed a very serious offence whose maximum penalty was life imprisonment. This Court set aside the High Court sentence and imposed a sentence over 12 years' imprisonment from the date of co nviction in the circumstances. 20

The facts of this appeat are that the Appetlant committed a grave offence 2s of kitting a human being. We have taken into account the fact that he was 34 years otd at the time of commission of the offence. He has no previous record of conviction.

ln the circumstances, we find that a sentence of 12 years' imprisonment would be sufficient to punish the Appettant for the offence he has committed. Secondly, from this period we take into account the period of about 2 years the Appettant spent on pre-triaI detention.

The Appettant was arrested on l5'h August 2010 from which time he remained in lawfuI custody untit his conviction on 10'h December 2012. This is a period of 2 years,3 month and 25 days.

ln the premises, we sentence the Appellants to serve 9 years 8 months and 5 days from the date of his conviction and sentence by the High Court on lOrh December 2012.

2022 Dated at Mbarara the day of

Fredrick Egonda – Ntende

.

Justice of Appeal

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Catherine Bamugemereire

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**Christopher Madrama**

**Justice of Appeal**

15