[2005] UGSC 30

# IN THE SUPREME COURT OF UGANDA **AT MENGO**

### ODOKI, CJ; TSEKOOKO, KAROKORA, MULENGA, CORAM: KANYEIHAMBA JJ. S. C.

### **CRIMINAL APPEAL NO. 2 OF 2002**

#### **BETWEEN**

## <table> KABUYE SENVEWO::::::::::::::::::::::::::::::::::::

#### AND

$UGANDA :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: :: ::$ (Appeal from judgment of the Court of Appeal (Mukasa - Kikonyogo DCJ; Engwau, Byamugisha, JJ. A) at Kampala in Criminal Appeal No.26/02 dated 16.4.04)

### **JUDGMENT OF THE COURT.**

The High Court of Uganda (Mwangusya J.) sitting at Masaka on 8^th November 2002 convicted the appellant for manslaughter and rape of Nakanwagi Agnes, the deceased, sentenced him to imprisonment for 8 and 10 years respectively, and ordered that the sentences shall run concurrently. On 16^th April 2004, the Court of Appeal dismissed the appellant's appeal against both conviction and sentence; hence this second appeal to this Court also against both conviction and sentence'

The facts on which the appellant's conviction was based are brief. The deceased,amarriedwoman,wasahawkerofsecondhandclothes'andthe appellant,anAssistantBankManagerofMasakabranchoftheUganda Commercial Bank was her customer along with other bank staff. On 21" August 2001 , at about 4.30 p.m., the deceased went to the bank' Outside the bank, Harriet Iga, an office attendant who had earlier bought clothes on credit paid her debt and informed the deceased that the appellant whom she wanted for the same purpose, was inside the bank. The deceased decided to wait for him outside his residential flat on top of the bank' She stayed chatting with Matovu Matiya who was painting the flat. subsequently, the appellant came out of the bank and together with the deceased entered the flat and locked the door. The two stayed inside the flat alone until 8.30 p.m.' when the appellant called for medical help because the deceased was in bad condition. Threedoctorsturnedupattheflatandfoundthedeceasedonthe appellant's bed. she was dressed in only a half-slip and stripped shorts. she was gasping for breath, and in coma' Blood stained froth was coming from her mouth and nostrils. Because of her critical condition the doctors rushed her to hospital where efforts to resuscitate her failed. She died at 9.20 p.m. Dr. Sewankambo, DW2, issued a certificate stating the cause of death to be cerebralvascularaccident. Subsequently,however,Dr. KibukaMusoke, PW4, who carried out a post-mortem examination, found external and internalinjuriesonthedeceased'sbodyandcertifiedthecauseofdeathtobe shock resulting from severe bleeding of intemal organs. The police arrested the appellant on a charge of murder'

In his charge and caution statement to the police' the appellant stated that he had dealt with the deceased for two years when she used to sell secondhand clothes to him, sometimes on credit; and that during that period they developed a love relationship and got to know each other intimately' Through that intimacy, he learnt from the deceased that she had had two accidents from which she sustained body pains' In the first accident she was squeezed between two motor vehicles and in the second she fell down and hit her chest against a chair' According to him' up to the time of her death she was still undergoing treatment for the body pains'

Hesaidthatonthefatefulday,afterenteringtheflatwiththedeceased'they first discussed purchase ofclothing for his children and then agreed to have sexual intercourse. They had an uneventful first round' However' when they resumedtheintercourseafteraninterval'thedeceasedstartedbreathingvery fast. He asked her what was wrong, but she did not respond and when he saw froth forming at her mouth he stopped sex' He cleaned her mouth with ^a wetfacetowelwhereuponhenoticedwhatappearedtobebloodinthefroth. He was alarmed and called for medical help'

At his trial, he was indicted for murder and rape' On the charge of murder' the trial court found that the prosecution had proved, through circumstantial evidence, that the appellant unlawfully killed the deceased' but had failed to prove that he did so with malice aforethought' hence the conviction for manslaughter. The court, however, held that the charge ofrape was proved beyond reasonable doubt' The Court ofAppeat upheld both convictions' The appeal to this Court is on four grounds drawn in argumentative form contrary to rule 81 of the Supreme Court Rules' In essence' however' the or after death as surmised by counsel for the appellant. Nor could they have beensustainedduringearlieraccidentsassuggestedbytheappellantbecause her husband and her son testified that she was never involved in any accident.

ItappearstousthatthecriticismoftheCourtofAppealbylearnedcounsel fortheappellantwasmisconceivedand/ormadeoutofcontext'Inits judgment,theCourtofAppealreviewedallthecircumstantialevidence adduced at the trial and concluded that it inesistibly pointed to the appellant as the person who inflicted the injuries that caused the death ofthe deceased' It based the conclusion on what it referred to as three ,.factors,'; which in summary were that -

- l. Dr. Sewankambo'sexaminationofthedeceasedwascasualand hurried,andhiscertificateastothecauseofdeathwasreliantonthe history given by the appellant that the deceased had had a fit; - 2. Theappellant'sclaimthatthedeceasedhadhadtwoaccidentswas falseasitwasnegatedbythetestimonyofhernextofkinwhowould have known if she had been involved in such accidents; - 3. Anexpertwitnessissupposedtoprovidescientificcriteriaonwhich hisconclusionisbased'andiftheexpertevidenceisnotsatisfactory or different experts give different criteria, the court can rely on other evidence.

After outlining those "factors", the court made the observation thal 'the medical evidence lended to lean towards the theory that was advanced by theappellantthatthedeceasedwasinvolvedinaccidents'. Weappreciate that if one takes that part of the judgment in isolation, as counsel for the appellant did, the said criticisms by counsel would carry weight' First' the firsttwogrounds,whichrelatetotheconvictionformanslaughter,arethat the Court of APPeal erred -

- in upholding the trial courl finding' on wrong grounds' that the appellant infticted the iniuries that caused death; and a - in failing to evaluate evidence, which supported the appellant's case' a

Mr. Ayigihugu, leamed counsel for the appellant' argued the two grounds together. He submitted that there was no proof that the appellant inflicted the injuriesthatcausedthedeathofthedeceased,andcriticizedthereasons relied on by the Court of Appeal to hold that the evidence irresistibly pointed to the appellant as the one who inflicted the fatal injuries. He stressed that twodoctorswhosawthedeceasedattheflattestifiedthatshehadnoinjuries on her and he contended that this meant that the injuries found on her during the post-mortem examination were inflicted after she was removed from the flat. He also criticized the Court of Appeal for failing to evaluate that testimony, and give to the appellant the benefit of doubt despite its finding that -

## "The medical evidence lended to lean towards the lheory that was advanced by the appellanr hat the deceased wos involved in accidents."

In reply, Mr. Okwonga, Ag. Senior Principal State Attomey' submitted that the circumstantial evidence proved beyond reasonable doubt that the appellantinflictedthefatalinjuriesonthedeceasedwhiletheywereinside the flat. He argued that the deceased had entered the flat in apparent good health, stayed inside the flat with the appellant alone' and eventually came outwiththefatalinjuries. Theinjurieswereinflictedwhilethedeceasedwas still alive and could not have been sustained during the resuscitation efforts said .'factors" tend to suggest that the court reached the conclusion of the appellant'sguiltonlybecausehistheorywasdisbelieved. Secondly,thesaid observationgivesamisleadingimpressionthatthecauseofdeathwasin doubt. However, the court did not stop there. The rest of the judgment clearly shows that the court outlined the said factors in the course of evaluating the evidence, and not as the only reasons for concluding that the appellant inflicted the injuries on the deceased' On the other hand' we think that the observation that the medical evidence leaned towards the appellant's theory,wasanover-statement,whichunnecessarilybutinevitablyattracted the criticism by learned counsel for the appellant'

There are two sets of medical evidence. The first set comprises the evidence ofDr. KibukaMusoke,thepathologistwhocarriedouttheautopsy. The second set comprises the evidence of Dr' Mulokola and Dr' Sewankambo' the two doctors who saw the deceased at the flat and participated in efforts to resuscitate her before she died. The former set did not lean towards the appellant's theory but rather destroyed it. Even the latter set did not lean towards the theory in any positive or direct sense' The most suPport that the appellant can draw from the testimony of the two witnesses is that they did not observe any injuries on the deceased' Their testimony did not'lean' towards the theory as to previous accidents let alone as to the cause of death. Nor indeed were the two witnesses categorical about their opinion on the causeofdeath. PWl0agynecologist,whoseapparentprimaryrolewasto check if the deceased was pregnant, testified that after she died he asked the colleagues to examine her, and he added -

,,Wedidnotfindanysignofinjury. Kabuyehadtolduslhedeceased had had an occident a month or so befote""'

During our interview wilh the accused he had told us the deceased had afit (convulsions). So in our conclusion we had indicated on the death certificate that the cause of death could have been ce r e ^bral vasc ul ar acc i dent' This conclusion was reached iven the istorv of ts and previous hi,storv ofan accidenl. frot,hv discharse, ^h ^I We recon,mended ^a s, mortem bv ^atr,ained potholosist...,.

DW 2, the signatory ofthe death certificate, testified inter alia'that they did the clinical assessment during the resuscitation efforts' and went on to say -

## "I based medical certiftcate of cause of death on history given by Mr. Kabuye and a rough clinical assessment' Ididnoldoa ended osI mortem to ascertain thorouEh e-Y0mination we recomm cause of death."

These excerpts from the two witnesses' own testimonies' clearly raise do'ubt on the examination undertaken by them' and in particular discredit their opinion as to the cause of death' We think therefore' that it was inaccurate to consider their opinion on the cause of death as expert evidence in conflict with the expert opinion of PW 4' Despite that inaccuracy' however' we are satisfiedthattheCourtofAppealevaluatedthecircumstantialevidenceasa whole, and that its observation that medical evidence leaned towards the appellant's theory,was not made as a definitive finding' but in the process ofthatevaluation. Inthatprocess,thecourtunequivocallyfoundthatthe evidence appearing to lean towards the appellant's theory was not credible anddisbelievedit. Thecourttherefore,wasnotleftinanydoubtinrespect ofwhich it could have given benefit to the appellant' This is evident in the following excerpt from the court's judgment -

,,Counselforrheappellanlinhissubmissionsstotedlhatthedeceased

had no injuries at all before she died. He was referring to the evidence of Drs. Sewankambo and Daniel Mulokola (PW.10). This witness (Mulokola) testified that he and his colleagues examined the deceased and saw no injuries fresh or old. With respect, this witness was being economical with the truth because his colleague PW 4 found injuries on the deceased both external and internal although he did not state the age of those injuries. His evidence that the internal injuries caused a rupture of the spleen and laceration of the liver, which are vulnerable parts of the body, and that the deceased could not have lived with those injuries for long, in our view, destroyed the defence theory that the deceased had been living with those injuries....

..... we think that the trial Judge reached the right conclusion (that the deceased's death) was caused by the injuries inflicted on her by the appellant. The circumstantial evidence is such that it produced moral certainty beyond reasonable doubt that it is the appellant who committed the offence. In our view, there are no co-existing circumstances that would destroy the inference of guilt.." (Emphasis is added)

We agree with the Court of Appeal that the circumstantial evidence leads to the irresistible inference that the deceased sustained the fatal injuries while she was with the appellant in his flat and that only the appellant could have inflicted the injuries. The evidence does not support the theory that the deceased went to the flat with the injuries. PW 4, the pathologist, did not ascertain how old the internal injuries were, but he was categorical that - ## "A person cannot live with a ruptured spleen and a laceraled liver for long- It would be a question of hours"'

Althoughhesaidthatthesubduralhaematomacouldhavebeensustainedin an accident some months before, we find no evidence from which to infer thattheinjuriesmighthavebeensustainedatdifferenttimes,particularly having regard to the pattem of the injuries, namely bruises on the chin' chest wallandabdomenontheexteriorandsubduralhaematoma'ruptureofthe spleen and laceration of the liver, intemally' Furthermore' we think that the suggestion by learned counsel for the appellant that the injuries found on the deceasedduringthepostmortemexaminationcouldhavebeeninflictedafter she left the flat is farfetched' In the first place' the pathologist' PW 4' testifiedthatthedeceasedsustainedtheinjurieswhileshewasalive,andthat resuscitation could not cause any of the injuries he found' Secondly' the suggestionwasnotputtoanyofthemedicalwitnesseswhoattendedtoher throughout, from the time they found her at the flat till she died' What is more,thesuggestionisinconsistentwiththeappellant'schargeandcaution statement that he adopted as his defence at the trial, in which he implicitly said that the cause of death was before or during the sexual intercourse' We also uphold the rejection of that defence and for the reasons we have outlined reject grounds I and 2'

In the third ground of appeal the appellant complains that the Court of Appeal confirmed the conviction of rape on speculation' and that it failed to considerthelegalimplicationofthechargeandcautionstatement,which was produced in evidence by the prosecution' Mr' Ayigihugu submitted that itwaserroneousonthepartoftheCourtofAppealtoaccepttheappellant's Statementthathehadsexualintercoursewiththedeceased,andyetrejecthis

assertion that it was with her consent, merely on the speculation that he failedtopersuadeher. Hestressedthattheonlyevidencethattheappellant hadhadsexualintercoursewiththedeceasedwashissaidstatementtothe police. Mr. Okwonga submitted that the appellant's statement' coupled with the medical evidence of injuries found on the deceased, including a cut on the labia majora, was sufficient evidence that the sexual intercourse was not consensual but forcefu l.

onthisissuetheCourtofAppealagreedwiththetrialcourtthattheextemal and intemal injuries found on the deceased and her tom knickers found in her handbag at the flat, proved that the sexual intercourse was forceful' It opined that because the police did not promptly visit the scene' the appellant re-arranged the bed where they had sex and erased incriminating evidence Ihereon. It went on to say -

"Like the trial judge rightly stated, the injuries both internal and external spoke volumes of what happened in lhe tlat' Although Dr. Kibuka-Musokefound a small cut wound on the labia majora which he claimed might have been caused by a general ulcer decease that alone is insufficient in our view to rule out forceful sexual intercourse..... There is no reasonable explanalion of how the deceased could have received such fatal injuries especially the rupture of rhe spleen d she had consenled " ' " ' One foctor' which did come (not) oal during the trial but that was mentioned during the senlencing Process, x'as that lhe oppellant has been on aids palient for the last 15 or so years' The deceased was a married woman. The possibility that he might have failed to persuade her to have consensual sex cannot be ruled out - /lrns (sic) the use of

## force."

With the greatest respect to the Court of Appeal' we find that in this part of its judgment it erred on several aspects' First' Dr- Kibuka-Musoke did not simply..claim,,,butincross-examinationwasexplicitthatthecauseofthe cutwoundhefoundonthelabiamajorawasduetoagenitalulcerdisease' rather than violent sexual intercourse. secondly, it is apparent that the court indirectlyshiftedtheonusofprooftothedefencewhereitobservedthat forceful sexual intercourse and failure of the appellant to persuade the deceased to consent were not ruled out' The onus was on the prosecution to adduceevidencethatwouldruleoutpossibilityofconsent'Thirdly,wethink that the court also erred in speculating that because the appellant was an aids patienthefailedtopersuadethedeceasedtohavesexwithhim. Therewas no iota of evidence on her knowledge of his affliction or attitude towards it' The only evidence from which the court could lawfully deduce that the appellant used violence on the deceased, and on which the trial court mostly relied, was that the deceased sustained injuries. There is, however' a lack of nexus between those injuries and sexual intercourse' True they may have been inflicted in the course of forcing her to have sex' Equally they may have been inflicted in an assault unrelated to sex' We do not find any weight in the evidence of a tom knickers found in the handbag as no attempt was made to describe the nature of the tear' Much as the circumstantial evidence raisesstrongsuspicionthatthesexualintercoursewasnotconsensualas asserted by the appellant, we are unable in the circumstances to say that it leadstoonlyoneirresistibleinferencethatthesexualintercoursewas through force. Therefore, ground 3 succeeds'

InthelastgroundofappealtheappellantcomplainsthattheCourtofAppeal erred in upholding the sentence, which the trial court imposed without taking theperiodSpentonremandintoconsideration. Counselfortheappellant argued that the constitutional requirement to take such period into consideration is mandatory and must be complied with irrespective of the length of the period. In reply, counsel for the respondent submitted that the court ofAppeal had taken the remand period into consideration and thereby cured the irregularitY.

The appellant spent less than two months on remand before his trial. The appeal against sentence in the Court of Appeal was on the ground that the sentences were harsh. On its own initiative, the Court of Appeal observed that Article 23(8) of the constitution enjoins a trial court, when sentencing, to take the period spent on remand into consideration, and noted that the trial court in the instant case had omitted to do so, but that the omission was not criticized. The court then went on to say -

,,Theomissiontotakeinloaccounltheperiodlhatlheappellant spent on remand in our view did not occasion any miscarriage of justice. The sentences imposed, were within the range of similar sentences that this Court and lhe Supreme Court have imposed from time to time fot offences of this nature'"

Undoubtedly, the Court of Appeal regarded the said omission to be an error, whichitoughttorectiff. However,uponconsideringtheperiodthatthe appellantspentonremanditconcludedthatthesentencesimposedbythe trial court were just. we are unable to fault that. The constitutional requirement ranks the period spent on remand among the several factors to be weighed in assessing the term of imprisonment to impose on a Person convicted of a criminal offence. It must not be construed as a provision of a formula of discounting the sentence. This ground also fails.

In the result, we allow the appeal partially. We quash the conviction of rape and set aside the sentence of 10 years imprisonment. We dismiss the appeal against conviction for manslaughter and confirm the sentence of 8 years imprisonment.

DATED at Mengo this $f$ ^st day of November 2005.

nn

B. J. Odoki

Chief Justice,

V. W. N. Tsekooko,

Justice of Supreme Court

A. N. Karokora

Justice of Supreme Court

J. N. Mulenga

Justice of Supreme Court

annoch and d. W. Kanyeikamba

Justice of Supreme Court.

1:11.05 Indoment delivered in open court by JON Makaya SSP

I Certify that this is a true Copy of me Court of by

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

## AT MENGO

CORAM: ODER - JSC, KAROKORA - JSC $ODOKI - CJ$ , **MULENGA** JSC, KANYEIHAMBA **JSC**

CRIMINAL APPEAL NO. 50 OF 2000

BTWEEN

OYEKI CHARLES: ::::: $...$ $...$ APPELLANT

VS

**UGANDA:** $\cdots\cdots$ $\cdots\cdots$ :::::: RESPONDENT

## JUDGMENT OF THE COURT

The appellant was indicted, tried and convicted of rape $c/\ensuremath{\text{ss}}$ 117 and 118 of the Penal Code Act. The particulars of the offence were that on $16-07-95$ , at Jemba Village in Mpigi District, he had unlawful carnal knowledge of Nanyenga Tereza who was PW2 at the appellant's trial. He appealed against his conviction to the Court of Appeal. That appeal failed. He has now appealed to this Court.

There are 2 grounds of appeal, the second one of which was against the severity of sentence of 15 years imprisonment imposed on the appellant by the trial court. The appellant's learned Counsel abandoned this ground, rightly so in our view, because it is incompetent. The remaining ground which was argued by the appellant's learned Counsel was that the learned Justices of Appeal erred in law and fact by finding that there was proof of forceful sexual intercourse.

$\mathbf{1}$

The thrust of the argument by the appellant's learned Counsel was that the evidence of the complainant, (PW2) was $\epsilon$ . not sufficiently corroborated. We think that this argument no merit, because the evidence shows that the has complainant's daughter Nakayima Seforoza (PW3) responded to the scene when her mother was attacked by the appellant and she raised an alarm. PW3 found the appellant on top of her mother having sexual intercourse with her (the complainant). She then ran to where her mother and herself had been to a party and called others, including the victim's son (Musata). They found the appellant still on top of the complainant having sexual intercourse with her.

the evidence of PW3 trial court accepted as The complaint's evidence that sexual corroborative of the intercourse took place and that it was the appellant who raped her.

We are unable to say that the Court of Appeal erred in that respect. PW3's evidence was sufficient corroboration of PW2's evidence of sexual intercourse and that the appellant was the culprit. Consequently we see no merit in the appeal. It is accordingly dismissed.

> B. ODOKI CHIEF JUSTICE

A. H. O. ODER JUSTICE OF THE SUPREME COURT

A. N. KAROKORA JUSTICE OF THE SUPREME COURT

J. MULENGA JUSTICE OF THE SUPREME COURT

G. W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT

1 Certify $\partial$ $\mathcal{H}$ $\infty$ Copy of $\mu$ Supreme Court of Ugar 9