[2025] UGCA 179

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# HOLDEN AT MASINDI

[Coram: F. Zeija,DCJ, C, Gashirabake, K K. Katunguka, JJA.]

### CRIMINAL APPEAL NO. 0122OF 2023

#### BETWEEN

JANUARY FRANCIS APPELLANT

### AND

UGANDA RESPONDENT

lAn appeal from a decision of Byaruhanga Rugyema,J delivered on the 2Eh day of Septenber, 2022intheHighCourtof lJgandasiftingatMasindi, CrminalSesslon CaseNo. 0055of 2il|

# JUDGMENT OF THE COURT

#### lntroduction

- t11 Tayebwa Steven alias Nanfuka (A1)and the appellant January Francis (A2) were indicted in the High Court on two counts of Murder contrary to Sections 188 and 1 89 of the Penal Code Act, and a third count of Aggravated robbery contrary to Sections 285 and 286(2) of the Penal Code Act. - l2t On anaignment, Al pleaded guilty to the three (3) counts and opted for plea bargain, He was found guilty on all 3 counts, convicted and sentenced to 20 yearc' imprisonment inclusive the period spent on remand, - l3l The appellant pleaded not guilty to the offences, he was tried and convicted on two counts of Murder, and acquitted on the third count of Aggravated robbery. The appellant was sentenced to 23 years and 1'l months' imprisonment on each Count, to run concurrently.

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#### Backqround

- I4l The facts of the case as presented before the trial Court are that, on the 3'o day of August, 2016 at Kagombe village (River Muzizi) in Kagadi District, MukombeZakayo and Tumuheirwe Susan (herein after referred to as "the deceased couple") were killed and robbed of Shs. 2,000,000/=. The duo who were husband and wife, had sold their maize and rice harvested from Kagombe Forest Reserve. - 151 On the fateful night, the couple was attacked while in their field hut, killed and then drowned into the swamp of River Muzizi. When the couple's children didn't see them for two days, they reported their parents' disappearance to the LC 1 and a joint search by police, community members and family ensued. The appellant and 41 also joined the search team where the bodies ofthe two deceased were recovered from papyrus reeds of River Muzizi. - t6l Upon the recovery of the two bodies, the appellant and 41 disappeared from the search team. The appellant then vanished from the village and started relocating his property through his workers (including A1). This drew suspicion which led to the arrest of the appellant and others. The appellant and two others (including A1) were indicted on two counts of murder and one counl of aggravated robbery. - l7l One accused person escaped from prison before committal, Tayebwa Steven alias Nanfuka (A1) pleaded guilty to the 3 Counts and opted for plea bargain. He then became a prosecution witness (PW1). The appellant (A2) pleaded not guilty to the offences and after a full trial, was convicted of the offence of Murder on the 'l't and 2no count. He was acquitted on the 3'd count of aggravated robbery. The appellant was sentenced to 23 years and 11 months on each count (to run concurrently) after deducting the period spent on remand. - Bl Being dissatisfied with decision of the trial Court, the appellant filed this appeal on the following grounds,


### Grounds of Apoeal

- 1. The learned trial judge erred in law and fact when he convicted and sentenced the appellant when there was no evidence to corroborate the evidence ofthe Go-accused hereby reaching an erroneous decision which occasioned an injustice. - 2. The learned trialjudge erred in law and fact wtren conducting the plea taking of the appellant. - 3. The learned trial Judge erred in law and fact in disregarding the appellants' defense and found that the oflence of murder and aggravated robbery was proved beyond reasonable doubt, - 4. The learned trial Judge erred in law and fact when he imposed a manifestly harsh and excessive sentence against the appellant. - 5. The learned trial Judge erred in law and fact when he held that the appellant was guilty without evaluating the evidence as a whole thus arriving at ^a wrong conclusion which has occasioned a miscarriage of justice. - tgl The appellant prayed inter alialhat the appeal be allowed, the conviction be quashed and sentence set aside. ln the alternative, the sentence be reduced as may be judiciously determined.

### Reoresentation

- [10] At the hearing, the appellant was represented by Ms. Susan Zemei while Ms. lmmaculate Angutoko a Chief State Attorney appeared for the respondent. - [11] During the hearing, Ms. Zemei sought and was granted leave to validate the memorandum of appeal filed out of time. Ms, Zemei was also granted leave to withdraw ground two of the appeal. Both parties filed written submissions which were adopted as their legal arguments

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### Case for the Apoellant

- [12] On ground one, Counsel for the appellant faulted the trial Judge for convicting and sentencing the appellant to 30 years' imprisonment based solely on the evidence of the co-accused and his confession without corroboration. counsel submitted that throughout the entire proceedings, the trial Judge did not consider the evidence as a whole despite there being a confession implicating the Co-accused, That on pages 49-53, the trial Judge relied on the evidence of the Co-accused who exonerated himself and named others as role players in the commission of the crime. - [13] Ground two was withdrawn by Counsel for the appellant with leave of Court. Regarding the third ground, the appellant's Counsel submitted that the trial Judge ened in law and fact in disregarding the appellant's defence. Counsel relied on the decision of Bogere Moses & Another vs Uganda, SCCA No. 1 of 1997 to submit that the trial Court ought to have evaluated both the prosecution and defense versions judiciously and give reasons why one and not the other version is accepted. That the trial Judge stuck on the evidence ofthe prosecution rather than both parties, yet the facts on record in regard to the events that ensued that day support the defence of the appellant. - [14] Ongroundfour,Counsel fortheappellantfaultedthetrial Judgeforawardingaharsh sentence. Counsel cited the case of Bukenya Joseph vs Uganda SCCR. Appeal No. 17 of 2010 and submitted that the sentence of 30 years' imprisonment on each count was excessive. Finally, Counsel for the appellant did not make submissions on ground five. - [15] ln conclusion, Counsel for the appellant prayed the appeal be allowed and the appellant be acquitted.

#### Respondent's replv

[16] ln reply, the learned Chief State Attorney representing the respondent opposed the appeal and supported the appellant's conviction and sentence, Counsel for the respondent also raised a preliminary objection that the appellant's third and flfth Page 4 of 13

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grounds of appeal, offend the provisions of Rule 66 (2) of the Judicature (Court of Appeal Rules) Directions in as far as they are argumentative and fall short of pointing out the specific points of law or fact that the trial Judge is being faulted for.

- [17] Counsel relied on the case of Ntirenganya Joseph vs Uganda CACA No 109 of 2017 to submit that an appellant has a duty under Rule 66 (2) of the rules of this Court to set forth concisely the ground of objection and specify the fact or mixed law and fact which he is alleging was wrongly decided. Counsel invited this Court to strike out grounds three and five of the appeal. - [18] Without preludice to the preliminary objection, Counsel submitted on the first ground that; the learned trial Judge relied on very strong and well corroborated circumstantial evidence against the appellant to convict him. Counsel for the respondent referred to the oral evidence of PW1 at page 16 of the record of appeal where PW1 testified about the events that ensued on the night of the murder. Counsel also referred to the testimony of PW2 and PW3 that the appellant immediately disappeared from the village after the incident. As well as, the testimony of PW4 who recorded the charge and caution - admitted as an exhibit at pages 51-53 of the record of appeal. - [19] Counsel further submitted that the appellant's conduct after the commission of the offence stated in the evidence of PW2 at page 18 of the record of appeal that the appellant and group fled the village before anyone suspected them was conoborated by the evidence of PW3 that the appellant was anested from Bora in Kabale district where he was burning charcoal in the forest. - [20] Counsel for the respondent also referred to the charge and caution statement (P' EXh. S) presenled in the testimony of PW4 in which evidence was adduced that the appellant, PW1 and others killed the deceased couple by strangulation. That this evidence was consistent with the medical evidence in PF48 exhibited as P. EXh.2 that revealed the cause of death as strangulation. Counsel submitted that all the

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circumstantial evidence pieced together destroyed any alibi/defence advanced by the appellant by placing him squarely at the scene of crime and pointing to his participation.

- [21] On the third ground, the respondent's counsel submitted that, a reading of the Judgment at pages 32-38 of the record of appeal shows an elaborate analysis of both prosecution and defence evidence which led to conviction on two counts of murder and an acquittal on the count of aggravated robbery. Counsel also reiterated that this ground should be struck out for offending Rule 66(2) of the rules of this Court. - [22] ln reply to ground four, Counsel for the respondent submitted that it is settled law that sentence is a discretion of a trial Judge and an appellate Court will only interfere with the sentence imposed by the trial Judge if it acted on a wrong principle or overlooked some material facts or if the sentence is manifestly harsh and excessive in view of the circumstances of the case. For this proposition, Counsel relied on the case of Kyalimpa Edward vs Uganda, Supreme Court Criminal Appeal No.10 of '1995, and Kiwalabye Benard vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001. - [23] Counsel further submitted that in sentencing the appellant at page 40 of the record of appeal, after considering the mitigating and aggravating factors advanced by the parties. The trial Judge avoided the death sentence and prefened 30 years' imprisonment on each count to run concurrently. That this sentence is appropriate and within range of similar cases of this Court cited by Counsel which included; Kavuma George & 2 Ohers vs Uganda CACA No.312 of 2015; Tubeine Robert alias Lecturer vs Uganda CACA No.104 of 2021 and Twongyeinrve John vs Uganda CACA No.201 of 20'13.


# Cons ideration of the aopeal

### Dug of the first Appellate Court

l24l The duty of the first appellate Court stated under Rule 30(1) of the Judicature (Court of Appeals Rules) Directions, is to re-appraise all material evidence that was adduced before the trial Court and come to its own conclusions of fact and law while making allowance for the fact that it neither saw nor heard the witnesses testify. This principal was also stated in Henry Kifamunte vs Uganda, Supreme Court Criminal Appeal No.10 of 1997.

ln this regard, we have carefully read the record of the trial Court, the submissions ofboth counsel and the authorities cited, and others notcited bythe parties.

### Preliminary objections

- [25] Counsel for the respondent raised preliminary objections that the appellant's third and fifth grounds of appeal, offend the provisions of Rule 66 (2) of the Judicature (Court of Appeal Rules) Directions in as far as they are argumentative and fall short of pointing out the specific points of law or fact that the trial Judge is being faulted for. - 126l Rule 66(2) of the Judicature (Gourt of Appeal Rules) Directions provide as follows;

"The memorandum of appeal shall set folh concisely and under dlst nct heads numbered consecutively, witholl argument or narrative, the grounds of obiection to the decision appealed against, specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a thhd appeal the matters of law of great public or general importance wrcngly decided."

[27] On ground three, the appellant contends that the trial Judge ened in law and fact in disregarding the appellants' defense and found that the offences of murder and aggravated robbery were proved beyond reasonable doubt, On ground five, the trial Judge is faulted for finding that the appellant was guilty without evaluating the Page 7 of 13

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 evidence as a whole thus aniving at a wrong conclusion which has occasioned a miscarriage of justice.

- t2Sl The duty imposed on an appellant under Rule 66(2) of the rules of this Court is to set out with specificity the error in law or fact, or mixed law or fact complained about. It is our considered view that ground three specifically faults the trial Judge forfailing to evaluate the evidence adduced in the appellant's defence. ln this regard, this ground does nol offend Rule 66(2) and the preliminary objection on this ground is overruled. - [29] To the contrary, ground five is too general and does not point what point of law or fact or mixed law and fact the trial Judge failed to evaluate. ln this regard, the preliminary abjection relating to ground flve of the appeal is upheld. Ground five is accordingly struck out. We shall now consider grounds 1, 3 and 4 of this appeal.

## Resolution of the appeal

Ground One: Ihe learned trial iudge erred in law and fact when he convicted and sentenced the appellant when there was no evidence to corroborate the evidence of the Co-accused hereby reaching an erroneous decision which occasioned an injustice.

- [30] On this ground, the trial Judge was faulted for convicting and sentencing the appellant to 30 years' imprisonment based solely on the evidence of the Co-accused and his confession without conoboration. - t31l OnPagel3oftherecordofappeal,intheCourtproceedingsdated4.08,2022,the prosecution informed the trial Cou( that 41- Tayebwa Steven had opted for plea bargain. The record shows that the indictment was read and fully explained to the accused in Runyoro- the language he understood, That 41 admitted the offence and a plea of guilty was entered. Thereafter, the facts of the case were read to A1, to which he admitted that the facts read were true and conect. The trial Court then proceeded to convict A1 on his own plea of guilt. A1 informed the trial Court that he had plea bargained for 20 years, the proseculion and Cou nsel for A1 confirmed the Page 8 of 13

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position. The trial Court then explained the consequences and implication of plea bargain together with his constitutional rights and after allocutus sentenced A1 to 20 years' imprisonment. The period spent on remand of 5 years and 11 months was deducted,

- [32] Following the conviction of 41, the Post-mortem reports of the deceased, Police Form 24 for the accused persons, the charge and caution statement dated ¹1 .08.2016 and five photos of the deceased couple were exhibited as agreed facts. The trial commenced against the appellant alone and the now convicted - Tayebwa was called as the first prosecution witness (PWl). PW1 testified on the events that led up to the murder and stated that upon arrest he had confessed to police his participation in the murder. During cross-examination, PW1 denied that the appellant was involved in the murder. - [33] The prosecution called three other witnesses; PW2 (Habyarimana James), a son to the deceased couple, PW3 (P. C Denish Muvu) a police officer who conducted the search when the deceased were reported missing and discovered their bodies, and PW4 (Assistant lnspector of Police- Taremwa Protez) who recorded the charge and caution statement. - I34l PW2 testified that he noticed after two days that his parents were missing, he informed the LCs and with the help of the Police a search was mounted. That the search party included the appellant and PW1. PW2 testified that when the first body of Zakayo was recovered, "Tayebwa and January Francis took off'. PW2 further testified that after the burial, he got information that the appellant's workers had started relocating his cattle and properties. That as a result, the appellant came to be known as the murderer, that he was searched for and he was found hidden in the forest. - t35l The testimony of PW3 as detailed on pages 1 9-20 of the record of appeal was that he was part of the search party which discovered the two deceased, he further testified that the 1st suspect was the appellant due to his immediate disappearance

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from the village. Further that his worker (PW1)was anested and confessed that he participated in the killing of the couple together with the appellant and two others named Pastor Kule Maliyo and Tom. PW4 testified that he recorded the charge and caution statement in which PWl stated that he was called by the appellant to go to the forest for a deal. That the duo was joined by two others who broke into the hut of the deceased couple, beat them up and got their money, thereafter dragged the couple to river Musizi where they strangled them.

[36] lnhisJudgment,onpages32-33oftherecordofappeal,thetrial Judgeevaluates the evidence presented regarding each ingredient of the offences. The trial Judge noted in Para. 12 of the Judgment that the post-mortem reports were admitted as P Exh. 1 & 2 under S. 66 of the TIA and established that the cause of death was strangulation. Further that the evidence of both PW2 and PW3 showed that the deceased couple were recovered from the river, Regarding participation of the accused, the judgment of the trial Court read as follows;

> " [21] Though while testifying, Tayebwa Steven(A1/DWl) (src) appeared to shield A2, both the charge and caution stalement together with the extra judicial statement were admitted as agreed facts and therefore the contents of the 2 documents have to be taken as conect therefore reflecting the truth.

> [22] Besides, by applying the rules concerning conoboration and confession of a coaccused; R vs Okitui S/o Odeke (1941) E. A. C. A 294, such corroboration is found in the evidence of the son of the deceased couple, Habyarimana (PW2) and Denis Muvu (PW3). According to PW2, when the deceased couple were pronounced missing, the entire community together with the L. Cs and police mounted a search for the deceased couple. The search party included the accused (A2) and (Al). lt is upon the recovery of the 1st body that both A1 and A2 took off and eventually the accused (A2) disappeared from the village. This was followed by the acts of A2's workers relocating A2's cattle and other properties." ...

> [23] A2 who was an ordinary resident of Katereza "A", Kyeniojo Sub County, fled the village and was located deep in a forest in Bora, Kagadi (former Kibaale) District, the fact he himself admitted.

ln Remigious Kiwanuka vs Uganda, SC Crim. Appeal No.41 of 1995, itwas held that;

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"The disappearance of an accused person fron the area of a crine soon after the incident may provide corroboration to other evidence that he has commifted the offence Ihis is because suc h sudden disappearance from the area is incompatible with innocent conduct of a person."

ln Uganda vs Yowana Baptist Kabandize [19821 HCB 93, it was held that, "Conduct of the accused immediately after the death of the deceased of running away from the scene of crime and of being in a resl/ess mood...showed a guilty mind.'

t37l ln light of the above, it is evident that the trial Judge did not solely rely on the evidence of the Co-accused and neither was this evidence uncorroborated. ln Para. 26 of the Judgment of the trial Court, the Judge found that the aappellant's conduct upon recovery of the bodies from River Muzizi pointed to nobody else but the appellant as one of the killers of the deceased couple which evidence amply corroborated the charge and caution statement of A1. ln this regard, we agree with the submissions of Counsel for the respondent that the trial Judge relied on very strong and well corroborated circumstantial evidence against the appellant to convict him.

This ground of appeal fails.

Ground three: Ihe learned trial Judge erred in law and tact in disregarding the appellants'defense and found that the offence of murder and aggravated robbery was proved beyond reasonable doubt.

- [38] On this ground, the trial Judge is faulted for disregarding the appellant's defence. We must emphasise that in criminal matters, the burden of proof lies on the prosecution and the standard is beyond a reasonable doubt. See; Woolmington vs DPP (1e35)AC 462. - [39] ln Para. 25 of the Judgment of the trial Court at page 37 of the record of proceedings, the tnal Judge states that;

"[25] Though the accused claim to had left the village out of fear of being suspected as one of the killers of the deceased couple, my view is that if that is the position, he should

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have reported the threats against his life and for protection from either the local authorities or police. During cross examination, he conceded that he never reported to police the threats against his life as a result of this incident. There is also no evidence that he surely reported it to the local authorities.

[26] As a result, I find that the above accused's conduct upon recovery of the bodies from River Muzizi point to nobody else but the accused as one of the killers of the deceased couple..."

[40] From the above, it is evident that the trial Judge evaluated the evidence as a whole and concluded that the version presented by the prosecution was correct. We cannot fault the finding of the trial Judge; we find no merit it this ground. lt accordingly fails.

## Ground four: Ihe learned trial Judge erred in law and fact when he imposed ^a manifestly harsh and excessive sentence againstthe appellant

t41l The law regarding appellate Courts in relation to sentencing is well settled, particularly in Kiwalabye Bernard vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001, Court stated as follows;

> "An appellate Coutt will only alter a senfence imposed by the tiat Coutt if it is evident it acted on a wrong principle or overlooked some mateial factor, or if the sentence is manifestly excessive in view of the circumstences of the case. Senfences imposed in prcvious cases of similar nafure, while not being precedents, do aflord material for considerction"

[42] We shall duly apply the above principles. Counsel for the appellant submitted that the sentence meted out by the trial Judge was harsh. The sentencing order of the trial Judge was couched as follows;

## ,. SEIIJIEilCE:

l43l [1] The accused is a 1st offender aged 24 years and therefore in his productive stage of life. He has been on remand for a peiod of 6years and therefore is entitled to have this peiod deducted from whatever sentence this Coutt will consider as appropiate for him.

[2] The accused has on the other hand been convicted of a sedous offence of nurder that attracts a death sentence as maximum. However, considering the cicunstances sunounding this case which include the age of the accused as 24 years, signifying he has a chance to reform Page 12 of 13

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and the regime of senlences regarding murder convicts; Uganda Vs Obong Tom, H. C. Crim. Case No.l24/2O14 and Aharikundia Yustine Vs Uganda, [2018] UGSC 49 where the Appellant murdered her husband in cold blood, the supreme Court reduced a death sentence to 30 years. Uganda Vs Lydia Draru, H. C. Crim. Case No. 404/ 10, Akbar Hussein GodiVs Uganda, S. CCnm, Appeal No.3/2013, (the convict had killed his wife) the convicts of murder were sentenced to 25 years. This is therefore not a case for a death sentence.

[3[ ln the premises, I consider 30 years imprisonment as a detenent and appropriate sentence for A1.'laking into account that he has been on remand for a period of 6 years and I month, he will seve a sentence of 23 years and 11 nonths term of imprisonment.

[44] A keen perusal of the sentence shows that it was not illegal and was within range of sentences for similar cases. The sentence was not harsh nor excessive, neither was it premised on wrong principles of law, We find no reason to interfere with the discretion of the trial Judge. This ground fails.

## Decision of Court

- 145l ln the tinal result, all the grounds ofthe appeal fail - 146l The appeal stands dismissed.

We so order

Dated this J\/ 3C'' ...... day of ... 2025. n Zeija D) ..-1<:...,.,,,,. .,, Christopher Gashirabake Justic Ketrah Kita Katunguka Justice of Appeal Page 13 of 13 Justice of Appeal