[2024] UGCA 191

### ⁵ THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: Geoffrey Kiryabwire, Irene Mulyagonja, Eva K. Luswata, JJA)

### CRIMINAL APPEAL NO. 0242 OF 2O2O

#### BETWEEN

10 IWA MASENZIO z:z:z:::::z::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### AND

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

[Appeal from the Judgement of the High Court sitting at Adjumani in Criminal Session Case No. O 1 I 1 of 20 17 delivered by Hon Justice Stephen Mubiru on l"t March, 2018]

### JUDGMENT OF THE COURT

# Introduction

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- 1] The Appellant was charged with the offence of murder contrar5r to Sections 188 & 189 of the Penal Code Act. He was sentenced to 2O years and 9 months' imprisonment. It was stated in the indictment that Iwa Masenzio on the 22"d day of November, 2016 at Unna Central Village, in Adjumani District with malice aforethought, unlawfully killed Adrawa Richard. - 25 2] The facts upon which the Appellant was convicted were briefly related in the judgment. It was recorded that Adrawa Richard (hereinafter the deceased) had borrowed a cart from the Appellant's father. The Appellant was infuriated by the fact that

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- ⁵ the deceased had not settled accounts with his father before he died, in respect of that borrowing. On the morning of 22"d November 2016, the Appellant who was drinking in the home of PW4 saw the deceased who was coming from inspecting his new construction site. He confronted the deceased with his complaint and then boxed him on the back of his head, in the neck area. The deceased fell down unconscious onto some rocks that had been exposed by a grader when maintenance works were recently carried out on the road. The deceased was carried to a tree shade nearby from where he regained consciousness and he was then taken to Adjumani Hospital where he spent one day before his relatives were advised to forward him to Lacor Hospita\_l as his condition was getting worse. TWo days later, the Appellant died in an ambulance as he was being transferred to Lacor Hospital. The Appellant was accordingly arrested and charged with murder. 15 10 - 20

- 3] In his defence, the accused denied having boxed the deceased but admitted confronting him. His version was that when he confronted the deceased regarding the cart, the deceased tried to kick him twice but missed. The accused then held him by the hand. The deceased pulled himself away, stumbled over a pile of bricks, fell down and hurt himself on some stones. He also suggested that the deceased was epileptic and could have succumbed to an attack of the disease. - 4] The Appellant was tried, convicted and sentenced to 20 years and 9 months' imprisonment. He was aggrieved with the decision of 30

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the High Court and lodged an appeal premised on two grounds set out in the memorandum of appeal as follows:

The learned trial Judge erred. ln laut and fact when he failed to properlg eaaluate the eaidence on record. and came to the usrong concluslon that the d.eceased.'s deqth was caused bg an unlauful act o,ctuo,ted. bg mallce aforethought and. wronglg conulcted. the Appellant of murder therebg occasioning a mlscarrlage of justice. t

¹⁵ ii. The learned. trial Judge further erred. in law and. fact when he sentenced the Appellant to 22 gears, imprlsonment which is harsh and excessiue in the clrcum,stances therebg occasioning a miscarrlage of justice.

# 20 Re resentation

5l At the hearing of the appeal, the Appellant was represented by Mr. Ronald Onencan who held the brief for Mr. Michael Pirwoth on state brief. The Respondent was represented by Ms. Immaculate Angutoko who held the brief of Adrine Asingwire a Chief State Attorney from the Office of the Director of Public Prosecutions (ODPP). Both counsel filed written arguments before the hearing of the appeal. We relied on those arguments and authorities supplied and those obtained by the Court, to decide this appeal.

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# 5 Ground one

## Appellant's submissions

- 6] By way of introduction, Mr. Ronald Onencan submitted that the burden of proof in all criminal cases lies on the prosecution to prove its case beyond reasonable doubt. For guidance, he referred to the well followed decision of Uloolmington versus DPP [f 9351 AC 462,481, as well as Okethi Okale & Ors versus Republic, [1965] E. A 555 and Kazarwa Henry versus Uganda, SC Criminal Appeal No. 17 of 2O15. He submitted that for the Appellant to be convicted of murder, the prosecution was required to prove beyond reasonable doubt, the fact of the death of ^a human being, the death was caused by unlawful act, the unlawful act was actuated by malice aforethought, and that it was the accused who caused the death. - 20 7] Mr. Onencan conceded to the fact that the prosecution ably proved the death of the deceased, that the death was caused by a. unlawful act, and that the Appellant caused the death. However, he contested the Judge's findings that the prosecution had proved that the Appellant's act was actuated by malice alorethought. In that regard he referred to Section 191 of the Penal Code Act which defines malicc aforethought, and in addition cited the decision of Uganda versus Kato [1976] HCB 2O4. 25

8] Counsel then briefly recounted evidence presented by the prosecution. Firstly, that PW1, Dr. Aciro Harriet testified that she examined the deceased's body at Adjumani Hospital Mortuar5r on

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- ⁵ 24th November 2016 and found that the death was caused by a closed head injury due to fracture of the skull. On the other hand, that PW2, Dr. Joseph Idora Atia testilied that there were no injuries visible on the deceased who appeared normal at the time of examination. Further that according to PW3 Irama Silvano, on 22"d November 2076 at around 10:00am, a lady called Penina reported to him that the Appellant had hit the deceased to death and when he rushed to the scene, he found the deceased on the ground unconscious but still breathing. The accused was standing at the scene. He added that the deceased had an injury on the head and was bleeding and that there were stones at the spot where he was hurt. That in cross examination, PW3 testified that the Appeltant bore no grudge against the deceased save that the latter had borrowed a cart from his father. He pointed to the fact that PW3 was not at the scene at the time of the attack. Lastly, that PW4, Acan Palima testified that she was standing about ten meters away at the moment the Appellant boxed the deceased and that the injury was almost behind the head because he fell on his back, she added that it appeared the deceased would recover after the first aid administered to him. 10 15 20 - 9l It was counsel's submission then that neither PW1, PW2, PW3 nor the testimony of PW4 indicated that the Appellant had the intention to kill the deceased and contended that the prosecution failed to prove that the Appellant's act was actuated by malice ³⁰ aforethought when he boxed the deceased. 4\_

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- ⁵ 10] Appellant's counsel also recalled the testimony in defence by the Appellalt, who testified as DW1, that the deceased tried to kick him on the leg but missed it, he then tried to box him once but he held his left hand, prompting Palima to shout from a distance that he should not fight. That as he released the deceased, the latter fell backwards on hitting his head some bricks. Counsel further drew our attention to the Appellant's testimony that he was not attacking the deceased and walked away when he fell down. Further that he did not expect the incident to cause tl-re deceased's death. 10 - ¹⁵ 111 Upon recounting that evidence, it was counsel's view that the finding of the trial Judge that it was proved beyond reasonable doubt that the death was caused by an unlawful act, actuated by malice aforethought was wrong. In his view, the Judge relied on surmises, conjecture and failure to properly evaluate the evidence on record and appraisal of the circumstances under which the deceased sustained injuries. Counsel argued further that, there was no evidence adduced by the prosecution to show that the deceased's neck was fractured as a result of a direct attack by the appetlant who boxed him with his hand which broke the chain of causation. That the doubt created in the prosecution case is manifest and probably formed the assessors' opinion that the Appellant be acquitted of murder and instead be convicted of manslaughter. Counsel then strongly argued that the doubt created should have been resolved in favour of the Appellant. 20 25

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- ⁵ 12] Counsel contended further that the trial Judge's conviction of the Appellant with murder after expressing his agreement with the assessors, cannot be explained on any other hypothesis other than failure to properly evaluate the evidence on record. He contended further that the Court did not examine in detail the surrounding circumstances under which the injuries were inflicted on the deceased as Court had to consider the kind of weapon used and should have satisfied itself that at the time of killing, the Appellant did not have the intention to kill. For guidance, counsel referred to Uganda versus Kato (Supra) and Nandudu Grace & Nakiwolo Florence versus Uganda, SC Criminal Appeal No. 4 of 2OO9 I2OLO] UGSC LO (.26 October 201O). 10 15 - 13] In addition, counsel contended that the trial Judge reached the conclusion that the Appellant's act was actuated by malice based on the isolated evaluation of the prosecution case without taking the defence into consideration. That it is evident from his analysis that the Judge did not refer or even allude to the accused's version of the events at a-11 in his judgement. That the Appellant in his defence stated that he held the deceased's hand and the deceased pulled himself way, stumbled and fell on his back, and that he did not expect the incident to cause death. Counsel submitted that failure by the trial Judge to evaluate both versions of the prosecution and defence case occasioned a miscarriage of justice. For guidance, counsel referred to Bogere Moses & Another versus Uganda (Supra).

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5 14] In conclusion, counsel submitted that owing to the foregoing reasons, ground one of the appeal ought to succeed.

# Submissions for the Respondent

- 15] In response, Ms. Immaculate Angutoko counsel for the Respondent introduccd her submissions by referring to the duty of the first appellate court. For guidance she cited Kifamunte Henry versus Uganda, SC Criminal Appeal No. 10 of L997. Being in agreement with the burden on the prosecution, she cited Ssekitoleko versus Uganda 11967l EA 531 where it was held that the prosecution has the burden of proving the case against the accused beyond reasonable doubt arrd that the burden does not shift to the accused person. - 161 In regard to ground one, Ms. Angutoko submitted that the trial Judge properly evaluated the evidence and correctly concluded that the Appellant unlawfully caused the death of the deceased with malice aforethought. She referred to the evidence of PW1, Dr. Aciro Harriet who examined the body of the deceased and established the causc of death as closed neck injury due to fracture of the neck and skull as reflected in PF 48B marked PEX. 1. She in addition referred to the evidence of PW2, DR. Joseph Idoru Atia who examined the Appellant on PF 24A and established that the Appellant was normal with no visible injuries. - 171 Ms. Angutoko then referred to the evidence of PW3 which she opined corroborated the findings of PW1, because PW3 was able to see the deceased at the scene of crime a-fter sustaining the injuries inflicted by the Appellant. That PW3 testified that he

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/ - ⁵ rushed to the scene immediately and found the deceased unconscious but still breathing, the Appellant was also at the scene and was arrested and taken to the police as the deceased who had a head injury, was taken to Adjumani Hospital and later referred to Lacor Hospital. In addition, counsel referred to the evidence of the eye witness, PW4 who testified that she witnessed the Appellant hit the deceased on the neck and as a result, the deceased fell in between two big stones and started bleeding from the back of the head. 10 - 18] Counsel noted that the evidence of the prosecution witnesses was not in any way discredited by way of cross examination. She referred to the judgement of the tria-l Judge wherein he analysed the prosecution evidence in relation to the ingredients of the offence. That in relation to the fact that the deceased was dead, the trial Judge evaluated the evidence of PW 1 the doctor who examined the body and PW3 who identified the body and attended the burial. In respect to the fact that the death was caused by an unlawful act, the trial Judge evaluated the evidence of PW4 who was present at the scene of crime when the Appellant attacked the deceased and established that the death of the deceased was neither natural nor accidental. The trial Judge then explained that Section 8 of the Penal Code Act could not afford the Appellant a defence because of the context within which the murder was committed. 20 25 15 - ³⁰ // 19] Ms. Angutoko further contended that the prosecution evidence reveals that the Appellant had malice aforethought. For guidance,

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- ⁵ she referred to Section 19 1 of the Penal Code Act and the Supreme Court decision of Nanyonjo Harriet versus Uganda, SC Criminal Appeal No. 24 of 2OO2 where malice aforethought was defined to be an intention to do an unlawful act to any person foreseeing that death or grievous harm is the natural and probable result. - 2Ol Counsel went ahead and referred to the testimony of PW4 which reveals that the Appellant followed the deceased from his home and started an argument upon which PW4 pleaded with the Appellant to avoid fighting. That PW4's evidence further revealed that the Appellant was at the time ready to fight the deceased. That the attack was unprovoked, and in her view, the part of the body targeted and the force used by the Appellant, reveal an intention to kill. 10 15 - 2ll In conclusion, counsel submitted that the trial Judge correctly convicted the Appellant because the actions of the Appellant revealed the desire to cause death or grievous harm because the neck is a delicate part of the body.

## Apoellant's submissions in reioinder

221 In rejoinder, Mr. Onencan reiterated his earlier submissions and added that for the trial Judge to hold that the Appellant was actuated by malice aforethought, the prosecution was required to prove beyond reasonable doubt that the Appellant intended to kill or knew that his acts would have probably caused the death of the deceased. He added that the prosecution did not adduce any evidence to show that the Appellant intended to kill the deceased

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- or that the degree of force used by the Appellant when he hit the $\mathsf{S}$ deceased on the neck could cause his death. In his view, the mere fact that the deceased fell down upon being hit in the neck, was not in itself conclusive of the degree of force. Mr. Onencan contended that it created reasonable doubt on what actually caused the deceased's death because there was no evidence on 10 record to show that the deceased's head was fractured before falling down in between two big stones. - 23] Counsel went on to submit that the prosecution evidence regarding the cause of the fracture on the deceased's head and skull was so ambiguous and could not point to the conclusion that 15 the deceased sustained the fracture as a result of the Appellant's actions. He insisted that the evidence adduced by the prosecution did not directly link the Appellant to the fatal injuries and creates a very strong doubt as to whether the Appellant caused the injuries that led to the deceased's death. He added that the 20 Appellant's hand is a not a lethal weapon and that where an injury is caused by a non-lethal weapon, the inference of malice is less readily drawn. For guidance, counsel cited the decisions of **Pico** Bernard versus Uganda, CA Criminal Appeal No. 308 of 2017 and Nandudu Grace & Another versus Uganda (Supra). 25 - 24] Counsel concluded that, it is apparent from the judgement that the trial Judge did not evaluate both versions regarding malice aforethought. In particular, he did not consider the accused's defence that he did not expect the incident to result into the deceased's death.

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## s Analysis and decision of court

- 25]1 We have carefully studied the court record, considered the submissions for either side, and the law and authorities cited therein. We are mindful that this is a first appeal to this Court which is governed by the provisions of Rule 3O(1) of the Judicature (Court of Appeal Rulesl Directions SI. 13-10 (hereinafter called Rules of Court). We are accordingly required to carefully review the trial record in order to reappraise the evidence and make inferences of fact but without disregarding the decision of the High Court. See: Kifamunte Henry versus Uganda' SC Criminal Appeal No. lO of L997. Alive to the above stated duty, we shall proceed to resolve the grounds of appeal as below; - 261 ln the first ground, it is contested that all the elements of murder were proved. The Appellant contends that there was no proof adduced to show that his unlawful act was actuated by malice aforethought. In that regard, Appellant's counsel attacked the evidence of PW4 who explained what she saw o[ the events before, during and after an altercation between the Appellant and the deceased. The observations and conclusions of the medical experts adduced in the post mortem report and PF24 are also contested. The Appellant's counsel also pointed out that the trial Judge failed to consider what was raised in the defence that the Appellant had no intention of killing the deceased or that the attack on the deceased could not have reasonably resulted into his death. Conversely Respondent's counsel submitted that by searching for and then attacking the deceased and hitting a

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- ⁵ vulnerable part of his body, it was proved that the Appellant had the intention to kill. - 271 It is trite that in order to sustain a conviction, all four ingredients of the offence of murder have to be proved beyond reasonable doubt. According to Section 191 of the Penal Code Act, malice aforethought shall be deemed to be established by evidence providing either of the following circumstances; - a) an intention to cause the death of any person, wheth.er such person is the person actuallg killed or not; or - b) knowledge that the act or omission causing death utill probablg cause the death of some person, uth.ether such person is the person actuallg killed or not, although such knoutledge is accompanied bg indifference uhether death is caused or not, or bg a wish that it mag not be caused. - 281 According to Black's Law Dictionary, 9th Edition at Page 1043, malice aforethought is defined as the requisite mental state for common law murder, encompassing the intent to kill, the intent to inflict grievous bodily harm, extremely reckless indifference to the value of human lifc (the so called "abandoned and malignant heart) or, the intent to commit a dangerous felony (which leads to culpability under the felony - murder rule). - 29] There is ample authority in our criminal law jurisprudence discussing what would amount to death caused with malice

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## aforethought. In Nandudu Grace & Nakiwolo Florence versus

**Uganda, (supra),** the justices of the Supreme Court stated that:

"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 or knowledge from the circumstances intention surrounding the killing, including the mode of killing, the weapon used, and the part of the body assailed and injured."

However, in the same case, the Court explained further that:

"In homicide cases, where death is caused by use of non-lethal weapon, the inference of malice is much less readily drawn than where a lethal weapon is used".

30] We have noted that the learned trial Judge was alive to this necessity as well as to the correct definition of malice aforethought. He also pondered the two contrasting scenarios discussed in the **Nandutu** decision. Specifically, when considering whether the second and third ingredients of the offence of murder were proved, the Judge found that if death came as a result of a direct hit to the neck, malice aforethought would be readily inferred as opposed to a case where death came as a result of a secondary injury caused as a result of a fall. He decided inter alia as follows:

> "Since there is no direct evidence of malice aforethought, it can be inferred by circumstantial evidence of the injuries.... In my view, any person who by way of an unprovoked attack hits *another with such mighty force directed at a sensitive part of*

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- $\mathsf{S}$ the body such as the neck to the extent of causing a fracture of the neck bones, must have foreseen that death was a probable consequence of his act. This fact is capable of *supporting an inference of malice aforethought.*" - The Judge then concluded that: 10

"Having considered all the available evidence relating to this" ingredient, in agreement with the assessors, I am satisfied that it has been proved beyond reasonable doubt that the death of Adrawa Richard was caused by an unlawful act, *actuated by malice aforethought"*

31] With respect, we perceive an error in the Judge's conclusion. Firstly, he assumed that the Appellant's punch was administered with "*mighty force*" to the extent that it caused a fracture to the deceased's neck. His conclusions must have been based on the postmortem report where it was recorded that the deceased sustained the following injuries.

> "...scalp lacerations/cut at occiput region accompanied" by scalp hematoma and neck deviation to the left due to *fracture of cervical spines".*

The cause of death was explained to be "..... closed head injury due to fracture of neck and skull".

The medical officer was not advised of the weapon that may have 32 caused those injuries, and indeed she mentioned none. There was no other evidence adduced to show the blow to the deceased's head was the direct cause of death. In **Joseph Rujumbura versus** Uganda (1992-93) HCB 36 cited in Nandudu and Another

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**versus Uganda (supra),** the Appellant who pocked his mother on the upper stomach with a stick was convicted of her murder. the Supreme Court considered similar facts. It was held that:

> "There should always be evidence that the weapon that was used to cause death was described to the doctor or was actually observed by the Doctor who performed the postmortem examination, and in whose opinion, the weapon was consistent with the nature and the time of the assault and its effect on the deceased, if that is the truth. It was not simply that the injuries were caused by a blunt object, but that the blunt object in the case could have been used to cause the injuries, in the way it was alleged to have been used. This was important in estimating the mens rea of an accused".

## It was similarly held in Francis Coke versus Uganda (1992-93) 20 HCB 43 cited in Nandudu and Another versus Uganda (supra) that:

"...a postmortem report contains findings as to the state of the body the injuries found on it, and an opinion as to the cause of death. It is not capable by itself of proving malice aforethought, the existence of which is not a question of opinion but of fact to be determined from all the available evidence........ The test that malice aforethought can be inferred from part of the body inflicted by the Appellant's act is restricted to cases where a weapon particularly a stick has been used to commit a homicide."

We shall therefore review the evidence adduced to prove mens rea.

PW4 Acan Palima was the only single identifying witness. She 331 testified and it was not contested that she was close to the crime scene. That when she first saw the Appellant, he was annoyed and

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- was using abusive words concerning the mother of the deceased and he appeared rcady to fight. She begun to follow him to stop him from fighting the dcceased, but before she could catch up with him, the deceased turned round to face the Appellant and at that moment, the Appellant used his left hst to hit the deceased on the right hand side of thc neck. The deceased was taken by surprise. He fell down in-betwcen two big stones. She observed all this from a distance of about 25 - 30 meters. We have no reason to doubt that PW4's account of cvents because she was quite close and the appellant did not dispute his presence. 10 5 - 341 What is clear from PW4's testimony is that the Appellant used his fist to hit the deceascd at the back of the head, in the neck area. Both PW3 and PW4 obscrved that the deceased was bleeding from that a-rea. That part of the body is certainly a mlnerable area which can result into a fatality. The uncontested evidence is that two days later, the dcccased succumbed to his injuries while he was being transportcd to Lacor Hospital. The Judge considered that the blow which the Appellant administered fractured the deceased's neck, which was sufficient proof that he had the intention to kill or at lcast should have foreseen that that could have resulted into a fatal injury. Considering the authorities, we have cited and now follow, we have formed a contrary opinion, and there is evidence to that effect. 15 20 25 - 1, 351 PW4 testifred that shc observed that the Appellant's fist connected with the back of thc deceased's head on the right hand side. The force of that fist probably caused the deviation of the neck to the

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- left and fracture of the deceased's spine, being injuries observed $\mathsf{S}$ in the post mortem. However, it was also recorded that there were lacerations on the scalp in the occiput region (back of the head) with clotted blood (hematoma). PW4 observed that after being hit, the deceased fell back-first on some rocks which had been exposed by a grader. PW3 testified seeing the same rocks and both 10 witnesses admitted witnessing the bleeding. It is not clear whether the blow on the head was administered so hard as to cause a fatal injury, or whether it was the injury sustained on the rocks that caused the deceased's death. That notwithstanding, there was more evidence to discount a malicious intent. 15 - 36] In his defence, the Appellant explained that his disagreement with the deceased originated from the fact that the latter failed to return or pay for a cart he had borrowed from the Appellant's father. That he was incensed because the deceased appeared to pay little attention to his need for money to treat his ailing mother. That after the deceased fell down, he got up and sat on a chair and in the aftermath of their altercation the two men agreed to meet to sort out their disagreement. During cross examination, PW4 admitted that she followed the exchange of the two men before the attack. She added that immediately after the attack, some people administered first aid to the deceased. She then made a significant remark that:

"It appeared the deceased would recover after the first aid and he said that they come and resolve the problem".

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- ⁵ ³⁷¹¹PW4 further statcd in her testimony that before attacking the deceased, the Appcllant was drinking at her home and that it is where the deceased found him before the fight. PW3 also admitted that at the time he arrived at the scene, the deceased was unconscious but still breathing and he regained a bit of his consciousness later to the extent that he was able to talk and also ride with him on a motor cycle to hospital. We deduce from that evidence that the Appellant's blow on the deceased's head was not as severe as PW3 wantcd to make it out to be. PW4 continued that the Appellant heeded to her request that he remains at the scene and readily offered himself up to be tired with a rope as a sign of surrendering to an arrest. Those were not actions of a man who had set out to kill another. The surrounding events at the crime scene that we havc rclated above also negate the presence of malice aforethought. 10 15 - 38] We have confirmed from the Record that although she considered death to have been caused by an unlawful act, the single assessor in the trial offered zrn opinion that the Appellant be convicted of manslaughter instead. It was a correct opinion for in our view, the evaluated facts entail that the Appellant is entitled to a benefit of doubt. The prosccution did not adduce sufficient evidence to establish malice aforcthought. In the result, we find that the trial Judge misdirectcd himself on the ingredients of malice aforethought and then came to the wrong conclusion that the offence of murder wzrs proved beyond reasonable doubt. 20 25

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- 39] We therefore quash the conviction and acquit the Appellant of the $\mathsf{S}$ offence of murder. Thus exercising our powers under Section 11 of the Judicature Act, we substitute the conviction of murder with a conviction of manslaughter contrary to Sections 187 and 190 of the Penal Code Act. Upon that conviction, we thereby proceed to sentence the Appellant as hereunder. 10 - It was presented for the State as aggravating factors that although 401 the Appellant had no previous record, he had deliberately caused the death of an innocent man, and had shown no remorse. The prosecutor considered the offence as rampart and for that reason, sought a deterrent sentence. One Ivana Silvano, the deceased's brother who was present in Court when invited to present the deceased family's views, prayed Court to give a severe punishment. His reasons were that having lived with the Appellant for about 20 years, he knew him to be a habitual fighter. In his view, he had the intention to kill the deceased and wasted Court's time by stating that he had witnesses to support him, yet none were called. - Conversely it was submitted in mitigation that the Appellant a 55- $41$ year-old man, was the sole bread winner of his large family. His counsel sought a sentence of 10 years, a term he considered reformatory. The Appellant himself added that before his arrest, he lived off earnings of peasant farming. That in addition to his own family, he had to care for his sister's children. And that because his wife was physically challenged, there was no one left to look after them.

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- ⁵ 421 We have considercd thc facts, and what was stated during the allocutus. However, bcfore arriving at an appropriate sentence, we consider it useful to consider sentences that have previously been given for manslaughter. The facts in Epuat versus Uganda, CA Criminal Appeal No. 1999 (decided in 2Ol7l, were that the Appellant and the dcceased resided together as man and wife' During one night, ncighbours intercepted and managed to stop a fight between them. When the neighbours returned the next morning to check on thc couple, they found the deceased seriously weakened by her injurics and she died in hospital the same day. The Appellant was convicted of murder but this Court converted it to manslaughter :rnd sentcnced him to 15 years' imprisonment after deducting th<: remand period. Yet in Charles Rwita Tumuhangirwe versus Uganda, Criminal Appeal No. 143 of 2Ol1 (decided in 201 2), this Court upheld a sentence of 14 years' imprisonment for malslaughter for an Appellant who pleaded guilty of killing h is wife after suspecting her of committing adultery. 10 15 20 - 431 Further in Kawuli versus Uganda, CA Criminal Appeal No. 50 of 2013) lzO24lUGcA 83 (8 April 20241an Appellant who pleaded guilty for manslaughter was sentenced to eight years' imprisonment. In tl-re same case, the Court cited the decision in Livingstone Kakooza versus Uganda, [f994] UGSC 17, where the Appellant went through a full trial and was sentenced to ¹² years' imprisonment altcr deducting the period spent on remand' In Ocaya Robert alias Kilenga versus Uganda, (delivered !9tt' - Sept,2O17) an Appt:llant who fought and fatally injured his wife

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- ⁵ from a ruptured splecn was convicted of manslaughter and sentenced to 18 ycars' imprisonment. This Court reduced the term to 10 years. Yet in Ssenyonjo Albert Dominic alias Kabuto versus Uganda CA Criminal Appeal No. O94 of 2OL2 (delivered on 30th July,2O18), an Appellant pleaded guilty for killing the deceased with an oarr for the reason that he suspected him to be a thief. He pleaded guilty to manslaughter and was sentenced to 2O years' imprisonmcnt. On appeal, the sentence was reduced to 14 years' imprisonmcnt. 10 - 441 Taking all the abovc in consideration, we sentence the Appellant to 15 years' imprisonmcnt. From that sentence we deduct one year and three months, thc period that he spent on remand before he was sentenced. He shall thereby serve a term of thirteen years ald nine month's imprisonment with effect from l"t March 2018, the date he was sentenccd. 15 - 20 451 Accordingly, the appcal has substantially succeeded'

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HON. G KIRYABWIRE

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