[2024] UGCA 115

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# HOLDEN AT JINIA

# CRIMINAL APPEAT NO.155 OF 2O1O

(An Appeal from the decision of Hon. Lady Justice Elizabeth Ibanda Nahamya dated 12th August 2010 at High Court (Jinjal in Criminal Case No. 202 of 2007)

KASUBO AIDAH= ==== == ===== == ==== = == ==== ======= APPETLANT

## VERSUS

tl[trf\ptr=== ===================================RESPONDINT

10 CORAM

HON. MR. TUSTICE GEOFFREY KIRYABWIRE, f . A

TION. MR. JUSTICE MUZAMIRU M. KIBEEDI,I. A

HON. LADY MONICA K. MUGENYI, J. A

# ¹⁵ ^fUDGEMENT OF THE COUR'l'

# Introduction

The Appellant was indicted with the chargc of Murder C/o to Section 188 and ¹⁸⁹of the Penal Code Act, and an alternatc oflence of Kidnap with intent t0 Murder C/o to section 2a3\$)(a) and (b) olthe Pcnal Code Act cap 120'

t

### Background

on 12rh August,2007 in the afternoon, the deceased, Namusoke Makilina, ^a child of about two (2) years went to play with other children at the homestead of the Appellant. At around 6.00pm the deceased's mother, Tekereza Irene(PW3J went to pick her up but did not find her there. When she asked the Appellant about the deceased, the Appellant denied having seen her arouncl her homestead. Drums were sounded and people gathered, a searclr was made in vein to find her. A few hours later, the Appellant and boylriend (Munyagwa Laston) fled from their home and were nowhere to be seen ^A report of stealing a child was made to police whereupon the Appellant and her boyfriend were traced and arrested, hiding in a nearby village.

On 20th, August 2007,the body of the deceased was found decomposing in ^a nearby maize garden. The deceased's hair, tongue and private parts werc missing. There was also a gaping wound on the right hand side of her back' When a Postmortem Report was carried out it revealed that the clitoris was miss ing.

The Appellant was examined and found to be of sound mind. The Appellant admitted to the charge in her charge and caution statement and irrlplicated Munyagwa Laston her boyfriend to the effect that she had handed the deceased to him in the banana plantation for child sacrifice.

At the trial the Appellant was found guilry of Kidnap with lntent to Murder and sentenced to thirty years'imprisonment. The Appellant being tlissatisfied with the Judgment and sentence Iodged this Appeal.

## Representation

The Appellant was represented by Mr. Robert Esarit while the Respondent was represented by Ms' Cladys Macrina Nyanzi Assistant DPP who was holding brief for Nakafeero Chief State Attorney.

Grounds ofAppeal

- 1) That the trial judge erred in law and in fact when she convicted the appellant on insufficient circumstantial evidence thereby occasioning a miscarriage of iustice. - 2) That the learned Trial fudge erred in law when she sentenced the Appellant to 30 years' imprisonment without putting into consideration the period of 2 years and 11 months spent on remand thus arriving at an illegal sentence. - 3) That the learned trial fudge erred in law and fact when she sentenced the Appellant to 30 years' imprisonment which sentence was harsh and excessive in the circumstance of the case'

## Duty of the court

This being a first Appellate court it is our duty to give the evidence on thc record as a whole that fresh and exhaustive scrutiny which the Appellant i:,^ entitled to expect, and then draw our own conclusiotls of fact. ['lowever, as we never saw or heard the witnesses who gave evidence, we must make due allowance in that respect. See Rule 30(1) (a) of the Rules of this court,

Pandya v R (1957) EA 336, Uganda v George Wilson Simbwa SCCA No' ³⁷ of2OO9.

## Ground 1

5 That the trial f udge erred in law and in fact when she convicted the appellant on insufficient circumstantial evidence thereby occasioning ^a miscarriage of justice.

# Appellant's Submissions

Counsel for the Appellant submitted that the circumstantial evidence on the record was not enough to infer guilt on the Appellant because of three reasons. 10

First, that there was no evidence on the record to show that it was the Appellant who kidnapped the child. He submitted that the Appellant testified

that she did not lock her house and disappear but she was helping with the search of the missing child and while she was arrested she was Iooking for the missing child. Counsel for the Appellant criticized the trial Judge for relying on this evidence to convict the Appellant. 15

Secondly, that there was no evidence of anyone who saw the Appellant with the deceased on 12th August 2007.

He argued that the testimony of the Munyagwa Mike IPW J of the Appellant admitting to having handed over the child to her boyfriend did not amoLlnt to ^aconfession or admission. He further submitted that there was no evidence to corroborated the evidence of Munyagwa Mike[PW4) with regard to the

admission since the Appellant denied ever talking to Munyagwa Mike while she was in custody.

Thirdly, counsel for the Appellant submitted that the trial Judge relied on hearsay evidence provided by Tekereza Irene to come to the conclusion that

5 the Appellant kidnapped the deceased, This was hecause'fekereza Irene was told by someone else that the deceased had gone with the Appellant'

## Respondent's submissions

Counsel for the Respondent submitted that the Appellant handed over the deceased to her killers.

She argued that there was circumstantial evidence in proof of the element of force or fraud in execution of the kidnap.'l'his was that PW3 had inquired from Salima who told her that the Appellant had kidnapped the deceased falsely pretending that the deceased was just escorting her to the banana

plantation and yet she intended to do something else. She submitted that the Appellant took advantage of the vulnerability of the deceased who trusted her since she always played with her children Salima and Akisoferi and fraudulently asked her to accompany her to the'garden' She lurther submitted that PW5 testified that the upon interrogation of the 15

Appellant confessed that she had taken the deceased to the plantation ancl handed her to her husband and added that "she must be dead by now" ' 20

## Court's findings

The complaint in this ground is that there was no evidence on the record to show that the Appellant was the one who kidnapped the child and handed her over to her boyfriend with the intent of having her mu rclered. On the other

hand, the prosecution has submitted that there was evidence that Appellant participated in this crime. counsel for the Appellant faulted trial Judge for relying on hearsay evidence to convict the appellant' the the

5 Section 59 of the Evidence Act provides that oral evidence must be direct' Hearsay evidence is evidence which is incapable of being verified by cross examination to determine its veracity. It is not admissible to determine thc guilt of the Appellant. In this case the mother of the deceased testified that Salima a child of B years told her that the Appellant had taken the deceased to a plantation and only came back with a bunch of bananas. We agree that this was hearsay evidence since Salima the child of B years never testified. We fincl that the trial Judge was mindful of this since she lound, 10

> "PW3's stotements that one of the children, Salima who was playing with the deceased told her that DWI took her child qre tontomount to hearsay. Solima who woukl have been o vitol witness was not colled by Prosecution."

We find that the trial f udge did not base her judgment on hearsay evidence but rather on the strength of the circumstantial evidence that was adduced by the prosecution.

Instead the trial court found that there was sufficient circumstantial evidence to support the conviction of the Appellant. I'he Appellant's biggest criticisn.r of this finding was that was that there was no evidence on the record ol alryone who saw the Appellant with the child on 1Zth of August 2007' 20

It has long been a rule of practice at comnloll law lbr the Judge at the trial of ^a person for a criminal offence to warn the jury of the danger of convicting the prisoner on uncorroborated evidence of an accomplice or accomplices and, in the discretion, to advise them not to convict on such evidence. In the absence of such warning the court of criminal Appeal will quash the conviction, but will not do so il after a proper caution by the .iudge, the jury neverthele'ss

convict the prisoner, unless it thinks that the verdict is "unreasonable" or cannot be supported having regard to the evidence.

In the case of R. v Baskerville [1916)2KI] 65U thc court l.reld,

" Corroboration means independent evidence. The evidence does not hove to be a kind which proves the offence against the accused' lt is suflicient il it connects the accused to the crime. Corroboration does not mean that every detail has to be corroborated..'. what is required is that there rnust be some odditional evidence rendering it probable that the story of an accomplice is true and it is reasonably sofe to oct upon it."

In this case the trial f uclge found as follows with reg,ard to corroboration;

ln the present case, corroboration can be obtained from the fact the accused disappeared from him on the fateful day. Tekereza Irene testified thot on that day the villagers continued to seorch for Namukose Makiline but then they realised that the accused had left her home together with her household. 'fhet the Accused's home could be seen from where they were. Further that Kasubo and her husband (hoyfriend) Munyagwa were not assisting the other villagers to seorch fi;r the deceased so the search

porty went to Kasubo's house. At lhsubo's house, they found that she hud put a candle light in the house making it seem as if there were people inside the house. The villagers knocked qt her door. T'here was nobody; they had all ran away. Many people gathered and raised an alorm. still they dicln,t see Kasubo. The disoppearance oJ'the occused immediately after committing the offence can be used to infer her guilt in relation to the offence and this court considers that it is an independent foctor thal corroborates the admission made by the accused to PW4 thot she took Mokiline to the banana plantation and handed her to Laston Munyagwo her B oyfri en d /h usba nd.

pw3 (Tekeraza lrene) 's evidence was corroborated by the evidence of PW4 [Munyagwa Mike), the father of the deceased who testified that when he we nt to the police station to see the Appellant she admitted to him that she had taken the deceased to a banana plantation and handed her over to Laston Munyagwa and another unidentified person. Furthermore, the trial Judge also corroborated the evidence of PW3 (Tekeraze Irene] with the evidence of PW5 the investigating officer (D/woman Corporal Namugasa) also testified that thc accused admitted to her, upon interrogation, that she had actually kidnapped the deceased pretending that she was escorting her to the banana plantation. we agree with the trial ludge's findings that there was corroborative evidencc. 15

# Ground 2 and 3

That the learned Trial fudge erred in law when she sentenced the Appellant to 30 years' imprisonment without putting into consideration the period of 2 years and 11 months spent on remand thus arriving at art

illegal sentence. 25

2A

ThatthelearnedtrialIutlgeerredinlawanrlfactwhenshesentenced the Appellant to 30 years' imprisonment which sentence was harsh and excessive in the circumstance ofthe case'

### 5 Appellant's submissions

counsel for the Appellant submitted that the sentence was vaSue as it was not stated how the triat Judge considered the remand period'

He argued that the remand period is to be deducted from the final sentence and the same was not deducted from the thirty-year sentence. He submitted

that taking into account the period spent on remand was arithmetical. He submitted that the trial Judge did not demonstrate how she had taken into account the actual period the Appellant had spent in lawful custody prior to her conviction and sentence. 10

Furthermore, counsel for the Appellant submitted that the sentence handed

down by the trial Judge was manifestly excessive and harsh. []e relerred us tt.r the case of Ainobushobozi Venancio v Uganda, Court of Appeal Criminal Appeal No. 242 of 2Ol4 where this court reduced the sentence of 1B years to 12 years 15

#### Respondent's submissions 20

Counsel for the Respondent submitted that the trial Judge considered both the mitigating and aggravating factors before arriving at the sentetlce of 30 years. He submitted that the trial f udge considered the fact that the appellant was ^a first offender, the offence being rampant in uganda, the crime being savage and also considered the mitigating factors being that the Appellant had spent

2.:

twoyearsandelevenmonthsonremand,theAppellant'sweakhealthandthe fact that she had orphans to look after'

counsel for the Respondent also submitted that the learned trial fudge consideredtheperiodspentonremandbeforepassingasentenceof30years,

imprisonment to the APPellant.

HereferredustothecaseofRwalinda|ohnvUgandaSCCANo.3of20l'5 wherethesupremecourtupheldasentenceoflifeimprisonmentagainstthe Appellant for kidnap with intent to murder'

counsel for the Respondent submitted that the case of Rwabugande did not

have retrospective effect on sentences that were passed before it. He relied on the case of Befeho lddi V Uganda SCCA No 58 of 2016 10

# Court's findings

under this ground, the Appellant submitted that the trial .f udge erred in the exercise of her discretion when she sentenced the Appellant to 30 years' imprisonment. lJe argued that the sentence was harsh and excessive in the circurnstances. llowever, counsel for the Respondent submitted that the sentence neither illegal nor manifestly harsh and excessivc'' 15

It has been consistently held in numerous cases by the Suprenre Court ancl specifically in the case of Livingstone Kakooza v Uganda SC Crinlinal Appeal No. 17 of 1993 that: - 20

> "... An appellate court wilt only alter a sentence imposed by o trial court if it is evident that it acted on a wrong principle or overlooked some materiol fact, or the sentence is manifestly excessive in view oJ' the

circumstoncesofthecose'sentencesimposedinpreviouscasesoJ.similar nature,whilenotbeingprecedents,doaffordmaterialforconsideration. See Ogalo S/O Owoura v R (1954) 21'E. A. C'A'270'

'fhe foregoing principles are equally applicable in thc instant case'

5 ln the case of Muhwezi Bayon v uganda, court of Appeal criminal Appeal No l9B of 2013, This court held that: -

> ,,Atthough the circumstance of each case may certainly differ this court has now established that a range within which these sentences fall. The term of imprisonment for murder of a single person ranges between 20 to ³⁵years' imprisonment. ln exceptional circumstances the sentence may be higher or lower."

15 20 Similarly, in Ssalongo Senoga Sentumbwe v. Uganda, C' A' Criminal Appeal No. 102 of 2009, an appeal against a sentence of sixteen years' imprisonment was dismissed following a conviction for the offence of Kidnap with intent to murder c/s 243 (aJ and (b) ofThe Penal code Act. He had kidnapped a twoyear-old boy, motivated by an intent to murder the victim by ritual sacrifice. In Nuulu Asumani Kibuuka v. Uganda, c. A. criminal Appeal No. 23 of ²⁰⁰⁰the court ol appeal upheld a sentence of twenry years' intprisonnlent meted against the appellant for the offence of Kidrtap with intent to nrLif(ler c/s 243 [a) (by then section 2a1 @) of The Penal code Act. The victim was aged about 6 months at the time he was kidnapped as a covel' up for ^at.r incestuous relationship, and was never seen alive again. Lastly, in Rwalinda }ohn v. Uganda, S' C. Criminal Appeal No, 3 of2015 the Suprerne Court upheld a sentence of life imprisonment meted against the appellant, a sixty-seven-

year-old man and first offentler who had spellt one year and three months on remand, for the offence of Kidnap with intent that the victim may be murderedordisposedofastobeputindangerofbeingmurdered,C/s243(a) (by then Section 247) of The Penal Code Act. The victim,s body was lound mutilated, the neck had been cut open, the lower jaw and tongue were missing and found that the killing was characteristic of ritual killing by witch doctors'

Since the body of the deceased was also found mutilated and the prosecution witnesses testifieci that the Appellant had handed over the child to another person that which is characteristic of ritual killings by witch doctors, 'l'he instant case a sentence of thirty [30) years is not out of range with

sentences for this type of olfence.

We will now consider whether the trial Judge considered the Period that was spent on remand bY the APPellant.

In the case of Rwabugande v uganda (criminal Appeal No.25 of 2014) [2017] UGSC B (3 March 201'7) the Supreme Court held: - 15

> "...1t is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and precision; consideration of the rentand period should therefore necessarily mean reducing or subtracting that period from the final sentence. That period spent in lawful custody prior to the trial must be specifically credited to an accused"'"

While the trial ,udge',,t'as sentencing the Appellant she held as lollows;

I have noted the two years, and eleven months spent on remand and I have taken them into consideration.

Therefore, the trial Judge arithmetically considered the period that the Appellant spent on remand.

#### **FINAL RESULT** $\mathsf{S}$

This Appeal is dismissed and the Conviction and Sentence of the trial court are upheld.

Dated at Jinja this.................................... 10 Jagderje de la la la la la la la la la la la la la HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A. mincilee St HON. MR. JUSTICE MUZAMIRU M. KIBEEDI, J. A. 15 mudtugeny; \*HON. LADY JUSTICE MONICA K. MUGENYI, J. A.

\*This Judgment was signed before this Judge ceased to hold that office.

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