[2024] UGCA 188

### THE REPUBLIC OF UGANDA

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

Coram; Kiryabuire, Mulgagonja & Luswata, JJA

## CRIMINAL APPEAL NO. 3I3 OF 2017

#### ⁵ BETWEEN

KEUBER RONALD APPELLANT

#### AND

### UGANDA :3::::333::::!:3::!:3::!::::::3i:3333:313::33::3:3:i::::::i:i:3:::3::3:3::::3: RESPONDENT

10 (An appeal from the decision of Stephen Mubiru, J. deliuered at Arua on 4th August 2017, in High Court Criminal Session Case No. 93 of 2017.)

### JUDGMENT OF THE COURT

### Introduction

15 The appellant and five others were indicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120. After a full tria-l, the appellant was convicted and sentenced to 32 years and 5 months' imprisonment.

### Background

20 The facts that were admitted by the trial court were that on or around 20th January, 2015 Onoba William Karlo was murdered at Aribi Village, Utheko Parish, Paidha Sub-County in Zombo District. It was the prosecution case that two years earlier the deceased's brother, Primo, eloped with Onyuthi Andrea's wife. A week before the deceased's disappearance, he attended a

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meeting of the elders to resolve the issue. The deceased left the meeting and alerted his brother Primo not to attend the meeting because he sensed some hostility.

The appellant and his co-accused at the trial attended the meeting and they suspected that the deceased tipped off Primo, causing him not to attend the meeting, to their chagrin. Four days after the meeting, the deceased informed his wife that he survived their wrath when he was surrounded by all of them on his way back from the Trading Centre only to be set free when they realised that he was not the person they were looking for. The next day, he disappeared and a search for him ensued. 10 5

While the search was on, one of the prosecution witnesses, Angelina Akumu overheard a conversation between the appellant and one called Obomba in which the latter asked the appellant whether the deceased made it home after being severely beaten. The Appellant's response was:

'We h.aue already finished up tlwt thing'. Around the same time, Onyrthi Andrea, one ofthe appellant's co-accused, asked the deceased's brother to send some boys and dogs to Namthim Stream. He intimated to them that they would smell something. In addition, Akumu Betty, also one of the coaccused told two prosecution witnesses not to search for the deceased as he was not dead but just at the Namthim Stream. The lifeless body of the deceased was eventually found at the Namthim Stream and the Appellant, 15 20

together with his five co-accused were charged with the offence of murder.

In his judgment delivered on 7th August 2017, the trial Judge found insufficient evidence to convict the rest of the accused persons, but found

the Appellant guilty of murder. He sentenced him to imprisonment as it 25

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has been stated above. Dissatisfied with both conviction and sentence, he appealed to this court on the following grounds:

- 1. The learned trail Judge erred in law and fact when he convicted the appellart of the offence of murder without proof of his participation in the commission of the offence. - 2. The learned trail Judge erred in law and fact when he sentenced the appellant to 32 years and 5 months' imprisonment, which sentence is harsh and manifestly excessive in the circumstances of the case.

### Representation

When the appeal was called on for hearing on 21"t November 2023, the appellant was represented by Ms. Bandaru Patience Daisy on State Brief. The respondent was represented by Omia Patrick, a Chief State Attorney from the Office of the Director of Public Prosecutions. 10

The written submissions that were filed by both counsel were adopted as the fina-l legal arguments upon which this appeal has been determined. 15

### Ground ¹

The appellant's grievance in this ground was that the trail Judge erred when he convicted him of the offence of murder without proof of his participation in the commission of the offence.

### ²⁰ Submlsslon s of counsel

Ms. Bandaru, for the appellant submitted that this is a case where no witness saw the appellant commit the offence. That the evidence in the trial court was that the deceased went missing around 21"t January 2O 15

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and days later, his decomposing body was discovered 150 metres away from his home. Further, that none of the respondent's witnesses testified that the appellant was the last person seen in the company of the deceased. Counsel went on to state that it was the evidence of PW2, Isabella Mandhawun and PW3, Angelina Akumu, that the trail Judge believed and so convicted the Appellant of the offence.

Relying on rule 30(1)(a) of the Rules of this court and Pandya v. R [1957] EA 336, she submitted that the duty of this court as a first appellate is to reappraise the evidence before the trial court. She contended that the evidence on record was insufficient to prove the participation of the Appellant. She explained that Isabella Mandhawrrn (PW2) and Angelina Akumu (PW3) as well as Okumu Karlo (PW4) referred to the appellant as Kuba. They also referred to one of his co-accused as Keuber. That there was a risk of mistaken identity in the manner in which the two narnes were used. That therefore, this court needs to exercise caution in coming to its decision because of the likelihood that the appellant could have been convicted instead of the other person.

Counsel for the Appellant further pointed out that PW2 testified that a day before his disappearance, the deceased was surrounded by the appellant and his co-accused and others on his way back from the Trading Centre but he managed to escape. It was counsel's contention that this was hearsay evidence which fell short of proof that the appellant had a grudge against the deceased. Counsel went on to highlight parts of PW2, PW3 and PW4's evidence. She asserted that the trial Judge relied upon the testimony of PW3 to convict the appellant and yet it fell short of proving 25 20

the participation of the appellant.

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Counsel then referred court to R v. Kipkering Arap Koske & Another (19491 EACA 135, where the court explained situations in which circumstantial evidence can be the basis of a conviction. She asserted that the evidence of PW3 fell short of circumstantial evidence that irresistibly pointed to the guilt of the Appellant. Further, that PW3 claimed to have seen Obomba and Kuba when she peeped through a bush but the likelihood of a mistaken identity was very high. That even though PW3 claimed to have reported to PW4 upon hearing the conversation in the bush, PW4 did not say anything about it in his testimony. Counsel referred to the often cited statement in Simoni Musoke v. R [19581 E. A 715 about

- the reliance on circumstantial evidence and contended that in the instant case, there is a risk that the evidence was fabricated. That the entire evidence on the record does not irresistibly point to the appellant as the person responsible for ttre murder of the deceased. 10 - In reply, Mr. Omia for the respondent contended that there were different categories of circumstantial evidence upon which the trail Judge based the conviction. He pointed out that according to PW2 and PW4, the deceased was blamed for advising Onoba to stay away from the meeting and a week later, he disappeared mysteriously. 15 - Counsel went on to point out that the other piece of circumstantial evidence was that a few days after the deceased disappeared, PW3 overheard the Appellant tell DW2 (Accused No 2) who inquired whether the deceased got home the previous evening after he was severely assaulted by DWl that, 'we haue alreadg finished that thing'. That the appellant further cautioned DW2 not to talk about it as the deceased's sister (PW3) was digging in the nearby garden and could hear them. 20 25

Counsel then submitted that on the ot ttris circflI,lLt evidence,

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it was safe enough to discharge the burden and standard of proof required in Woolmington v. DPP [f935] AC 462.

With regard to the possibility of a mistaken identity, counsel for the respondent contended that this issue did not arise as the appellant was well known to all the witnesses and they did not see him for the first time in relation to this case. Further, that neither the appellant nor counsel for the Appellant at the trial raised an objection to the name the witnesses used to refer to the Appellant, Kuba.

Turning to PW2's evidence, counsel for the respondent submitted that this piece of evidence was treated as hearsay and was not the basis of the conviction. Further, that the argument that PW4 did not testify about the conversation between Kuba and Obomba in the garden, was not necessa-ry because it would have been treated as hearsay evidence. He added that the testimony of PW3 was not discredited during cross-examination and it remains unchallenged. 10 15

In conclusion counsel for the Respondent emphasised the duty of this court to reappraise evidence as it is stated in rule 30( 1) of the Rules of this court, Uganda v. George Wilson Simbwa, SCCA No. 37 of 1995 and Kifamunte v. Uganda, SCCA No. 1O of 1997.

# 20 Resolution of Ground ¹

The Appellant's appeal is principally about the evidence upon which the trial Judge found that he participated in committing the offence, and thus convicted him. The contested part of the judgment was at page 42 of the record where the trial Judge found and held as follows:

.- , 4L(L / "In the last category is D. W.6 Keuber Ronald. Apart from having attended the emotionally charged meeting convened a week or so prior to the disappearance of the deceased intended to chastise Primo, he was also *overheard telling D W.2 that; "we have already finished up that thing" when* D. W.2 inquired about the condition of the deceased and whether he had made it home after the sever assault by D. W.1. That statement is not only self-incriminatory but his conduct in cautioning D. W.2 not to talk about it lest the sister of the deceased who was digging in the garden nearby would hear him proves that he was a participant in the assault of the deceased. $I$ therefore find that the circumstantial evidence against him **irresistibly points to guilt.** In the final result, I find that the prosecution has proved all the essential ingredients of the offence beyond reasonable doubt as against D. W.6 Keuber Ronald and I hereby find the accused guilty and convict him for the offence of Murder c/s 188 and 189 of the Penal Code Act.

#### *{Emphasis added}*

Circumstantial evidence has been variously defined. Black's Law Dictionary (8^th Edition) defines it as, "Evidence based on inference and not on personal knowledge or observation." Merriam Webster's Dictionary Online defines it as "*evidence that tends to prove a fact by proving other*" *events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue."*

In Akbar Hussein Godi v. Uganda, Criminal Appeal No 3 of 2013, the Supreme Court cited with approval the decision of the High Court of Kenya

in Nairobi Criminal Case No. 55 of 2006, Republic v. Thomas Gilbert 25 **Chocmo Ndeley**, where it was held that:

> "Circumstantial evidence is very often the best evidence. It is evidence of *surrounding circumstances which, by (intensified) examination, is capable* of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial."

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Counsel for the appellant contends that the pieces of evidence that the trail Judge relied upon did not irresistibly point to the fact that the appellant, Keuber Ronald, committed this offence. That there was mistaken identity of the appellant by PW3 and PW4 who referred to DW5,

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Accused No 5 who was referred to in the title to the proceedings as 5 "Thomwa Donald," as "Keuber" while the appellant was referred to in the proceedings as Accused No. 6 "Kuba". He made an unsworn statement in his own defence as DW6.

There could have been some confusion about the names of the two accused persons because they had rather similar "first" names: "Donald" and 10 "*Ronald*." It thus calls for a careful reappraisal of the relevant testimony of Angelina Akumu (PW3) upon which the trail Judge relied to convict the appellant of the offence. The relevant part of her testimony was at pages $14-15¹$ of the record where she stated thus:

15 "I reside at Arisi village, Otheku parish, Paidha sub-county, Zombo District. I am a farmer. I know the accused. A1 is Orom is my nephew, son of my *brother, Obomba is A2 and a son to my sister, A3 is Onyuthi is my brother,* A4 is Akumu Betty is a wife to my brother, **A5 is Keuber someone from** Pupidhi, A6 is Kuba my son in law who married a daughter to my **sister**. Onoba William Karlo was my biological brother, second follower to 20 me. He is dead. The accused killed him. Obomba came from the home of Orom and went to Kuba in his garden digging and I was in my garden next to his. Obomba was asking Kuba that the way Orom beat up Onoba I wonder whether he reached home well. Kuba answered and told him "Keep quiet. We have already finished that thing. His sister 25 is just digging in the next garden." I was about twenty metres away from them. It was about 8.00 am. Onoba at that time had been missing for about one week. His body had not been found yet. I heard them say this the day after Onoba went missing. I peeped at them through the bush and fount that it was Obomba and Kuba talking. Our gardens were separated by some 30

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^&lt;sup>1</sup> The page numbers refer to the typed pagination in the top right hand corner of each page of the record of appeal.

reeds. I stopped digging and uent to mg brother Okumu Karlo and told him Onoba could be dead. We then started looking for Onoba but did not find him.

## {Emphasis supplied}

5 Angelina Akumu identified Accused No 5 as Keuber, someone from Puphidi, yet Accused No 5 was called Thomwa Donald. She then identified the Appellant who was Accused No 6 as uKuba" her son in law who was married to her sister's daughter.

Accused No 5 in the dock was "from Puphidi;" he was likely not well known to Angelina Akumu. But there is no doubt in our minds that Accused No 6 in the dock was known to Angelina Akumu; regardless of the name that she attributed to him. He owned the garden next to hers and given the fact that he was not only her neighbour but also her son in law, she was familiar with his voice. He was the person that she heard ta-lking to Obomba on that day and it can be inferred from his statement that he either participated in the assault that led to the death of the deceased or at the very least, he was present when it was occasioned. 10 15

What Angelina heard and testified about was not hearsay evidence because she heard it first hand from the mouths of the two men in the garden next to hers. It was 8.00 am and though there was vegetation between her garden and her neighbour's, she was able to identify the two people holding the incriminating conversation. 20

However, it is not clear to us whether the Appellant participated in assaulting the deceased. What is clear from his words is that he was present when it happened. This is augmented by the fact that Obomba did not say Keuber or Kuba beat up the deceased; rather he was concerned

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about the manner in which "Orom beat up Onoba." It is therefore our view that at\_the very most, the Appellant, Keuber/Kuba, though he knew about the circumstances under which the deceased met his death, he decided to keep quiet. Indeed, he encouraged Obomba to also say nothing about how the deceased was beaten up and burnt to death.

In addition, we observed that there was a contradiction in the evidence about the participation of the Appellant in this crime. When the deceased was accosted and surrounded by a gang including the Appellant the night before he disappeared, it appears it was the appellant who saved the day.

At page 12 of the record, PW2 narrated what the deceased told her about the incident thus: 10

> "He named all the accused among the people utho surcounded him. He told me he did not knou the reason uhy they did that. When Keuber noticed that it uas him, he told him that f lhis is gou Onoba, then gou haue suruiued and the deceased escaped."

Further to that, at page 14-15 of the record, PW3 narrates what she heard Obomba say to the appellant the day after the deceased disappeared as follows:

"Obomba uas asking Kuba that the wag Orom beat up Onoba I wonder tuhether he reached home tuell. Kuba anstuered and told him, 'Keep quiet. We haue alreadg finished up that thing. His sister isrnrst digging in tle next garden."'

Obomba, Accused No. 2 at the trial, was admittedly also present at the scene of the crime. If the trial judge was of the view that the appellant

"Keuber" should be convicted under section 2O PCA, then Obomba also ought to have been convicted. 25

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Having let off Obomba, we are of the view that it was unfair to convict Keuber on the basis of the same evidence under section 20 PCA, in view of the contradiction above. The contradiction ought to have been resolved in favour of the Appellant. The trial Judge therefore erred when he found as

5 a fact that the Appellant participated in the assault that led to the death of the deceased.

Section 89 of the TIA provides as follows:

### 89. Conviction for being an accessory after the fact.

# When a percon is charged with an offence, he or she may be convicted of being an accessory after the fact to the commission of that offence although he or she was not so charged.

We therefore hereby quash the Appellant's conviction of the offence of murder and hereby set it aside. We instead substitute the conviction with that of being an accessory after the fact of the murder of Onoba.

¹⁵ Ground I of the appeal therefore partially succeeds.

### Ground 2

The Appellant complained about the sentence of 32 years and 5 months imprisonment that was imposed upon him for the offence of murder. Having set the conviction aside, we have no alternative but to set aside the sentence as well. As a result, we invoke the powers of this court under section 1 1 of the Judicature Act to sentence him for the minor and cognate offence for which he has been convicted.

Section 206 of the Penal Code Act provides that any person who becomes ar accessory after the fact to murder commits a felony and is liable to imprisonment for seven years. We therefore hereby sentence the appellant

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to seven years' imprisonment. Taking into account that he spent 2 years and 7 months on remand before he was convicted and sentenced, we deduct that period from the sentence, pursuant to Article 23 (8) of the Constitution, resulting in a sentence of 2 years and 5 months, with effect

5 from the Ttt August 2OlT. Thatwould mean that the Appellant served more time than he would have had he been appropriately convicted and sentenced.

## Determination

10 The upshot of this decision is that the appeal succeeds. The Appellant shall be set free forthwith, unless he is being held on other lawful charges.

| 1\l<br>Dated this | day of | (-* | o24. | |-------------------|--------|-----|------| | | | | |

Geoffrey Kiryabwire JUSTICE OF APPEAL

Irene Mulyagonj

20 JUSTIC OF

Eva JUS KL ta CE OF APPEAL 25