[2023] UGHCCRD 35

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUBENDE

# **CRIMINAL APPEAL NO.009 OF 2022**

# [Arising from Mityana Criminal Case No.979/2020]

#### KIJIAMBU EMMANUEL

APPFLLANT

#### **VERSUS**

#### **UGANDA**

#### RESPONDENT

# BEFORE HON JUSTICE MOSES KAZIBWE KAWUMI

## JUDGMENT

#### Introduction.

The Appellant was indicted of the offence of Attempted Murder contrary to section 204(a) of the Penal Code Act and sentenced to six years imprisonment by the Chief Magistrate at Mityana Court. He was dissatisfied by the decision hence the Appeal to the High Court.

#### Background.

Kintu Charles the complainant in the trial harvested two sugarcanes and two jack fruits from the Appellant's garden without permission. The Appellant found the complainant with the stolen items and ordered him to surrender them. The complainant refused and a scuffle ensued. As the complainant attempted to run away the Appellant cut him with a panga at the back of the head.

Byamaka Charles(PW3) a Clinical Officer at Mityana hospital examined the complainant. PW3 described the wound as measuring 4-5 centimetres. He also had soft tissue injuries on the left lower chest and

the lower part of the abdomen attributed to a sharp object. The injuries were classified as "grievous harm" by PW3.

Bayiyana Annet(PW2) witnessed the scuffle and saw the Appellant raising a panga and cutting the complainant. PW2 raised an alarm and the Appellant walked away with the jack fruits as the complainant was taken for medical assistance.

The complainant stated that when he refused to hand over the jack fruit to the Appellant, he was assaulted with a panga and a piece of wood. It was when he tried to escape from the Appellant that he cut him with a panga on the head.

The Appellant conceded that a struggle that lasted five to ten minutes ensued as he tried to remove the sugarcanes and jackfruits from the Complainant. In the process the complainant fell down on a stick and he got injured but he had been warning him against stealing from his garden.

The Appellant stated that he had a bag, slasher and a panga at the time he confronted the complainant who was carrying two jack fruits in one hand and the sugar canes in the other. Byaruhanga (DW2) told court that it was the first time he heard that the complainant had been stealing fruits from the Appellant's garden.

The trial magistrate referred to the intentional attack on the complainant using a panga, the repeated beatings on the chest and lower abdomen as the overt acts intended to cause death. The court also referred to the seven times the Appellant claims to have lost fruits to the complainant through theft as the catalyst for the intention to finish off the Complainant.

Dissatisfied with the decision of the trial court, the Appellant preferred an Appeal on the following grounds;

- 1. The learned trial magistrate erred in law and fact in finding and holding that the prosecution proved the offence of attempted murder against the appellant beyond reasonable doubt thereby occasioning a miscarriage of iustice. - 2. The learned trial magistrate erred in law and fact when he passed a sentence that was manifestly harsh and excessive.

## Representation.

Mr. Arthur Kirumira appeared for the Appellant while the Respondent was not represented despite receipt of the record of Appeal and submissions filed by the Appellant's Counsel.

# Submissions by Counsel for the Appellant.

Counsel contends that the trial magistrate ignored the evidence to the effect that the Complainant had stolen the Appellants property and he acted in the protection of that property based on which defence he should have been acquitted and the complainant reprimanded for the theft. It was argued that being the victim of the theft, the Appellant was within his rights to act in defence of his property.

It was further argued that the circumstances in which the Appellant found the Complainant with the stolen property rebut the inference of the unlawful intention to cause death and the overt act to cause death envisaged in the law.

Counsel cited Zedekia Lukwago v R (1956)23 EACA and Hau S/O Akonaay V R (1954)21 EACA 21 to support his contention.

# Duty of the Court.

This being a first appeal, the court is required to subject the evidence on record to a fresh and exhaustive scrutiny before making up its own mind on the law and facts taking into consideration the fact that it had no opportunity to observe the witnesses at the trial.

# Kifamunte Henry V Uganda. SC Criminal Appeal No.10/1997.

## Analysis and decision on the $1^st$ ground of Appeal.

The learned trial magistrate erred in law and fact in finding and holding that the prosecution proved the offence of attempted murder against the appellant beyond reasonable doubt thereby occasioning a miscarriage of justice.

I find it imperative to state the ingredients of the offence of Attempted Murder as set out in Uganda V Hussein Agade &Others. Criminal Case No.001/2010. They are;-

- The intention to cause the death of another $\mathbf{i}$ . - Manifestation of the intention by an overt act ii. - Participation of the accused. <pre>iii</pre>

The offence of Attempted Murder is proved by evidence of a failed or aborted attempt to murder another person. An intention is a question of the mind and can only be deduced from the overt act taken in the attempt to commit the offence. Evidence of the nature of the weapon used, the frequency of its use on the victim, the parts of the body attacked and the conduct of the accused before and after the act are used to make an inference as to the intention of the accused person.

The Appellant stated in court that the scuffle took between five and ten minutes before the complainant fell on a stick and got injured which is not true. A stick is not classified as a sharp object. It was his evidence that he had earlier warned the complainant about stealing his property but this was the first time to get him in the act. On seven occasions the complainant had run away to evade the Appellant.

The evidence quoted above has to be weighed in the context of the circumstances in which the two protagonists met. The complainant was holding the stolen items in both hands while the Appellant had not

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intended to proceed to the garden to catch a thief but for his normal gardening activities which explains the fact that he was carrying a panga. The intention to harm or cause death to the complainant was thus triggered during the scuffle and not premeditated.

The complainant had assault marks on the chest and lower abdomen which confirms the assertion that he was assaulted with a panga by the Appellant before the final blow on the head as he tried to flee. The Appellant did not report to have been assaulted or sustained any injuries in the scuffle hence no fight can be said to have taken place.

A scuffle lasting five to ten minutes was long enough for the Appellant to have subdued and arrested the Complainant to take him to the local authorities or the police. The Appellant instead chose to repeatedly use the panga to assault but not cut the Complainant on the chest and lower abdomen before cutting him on the head.

The head injury was inflicted on the complainant when he was fleeing from the scene and not in self- defence. A panga is a deadly weapon that was used on the head of the fleeing and defenceless complainant. The Appellant was not reported to have kept around in the attempt to help the victim but just carried the fruits and left. It was PW2 and a respondent to the alarm she raised who rescued the complainant.

The events described rebut the submission of counsel for the Appellant about the Appellant's right to defend his property at whatever cost to the protagonist in the wrong. The submissions would carry weight in a situation of a struggle and injury is inflicted in self-defence. In this case the Appellant had subdued the complainant, repeatedly assaulted him and caused the fatal blow as he was fleeing from the scene.

The choice of the part of the body on which the weapon was finally used points to an intention to cause death. I find no reason to depart from the

$\overline{5}$

findings and conclusion of the trial court. The intention to cause death was manifested in the manner in which the panga was used by the Appellant.

I find no merit in this ground of Appeal.

Resolution of the $2^nd$ ground of Appeal.

The learned trial magistrate erred in law and fact when he passed a sentence that was manifestly harsh and excessive.

Counsel for the Appellant did not submit on the second ground of Appeal and the presumption is that it was abandoned. The sentencing powers of an appellate court are well settled

'An appellate court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case."

# Kakooza V Uganda [1994] UGSC 17; Ogalo S/O Owours V R (1954)1 FACA 270.

The trial magistrate considered the fact that the Appellant is an elderly person and a first offender. The court further noted that the increasing acts of lawlessness in the jurisdiction need to be curbed. Juxtaposed with the fact that the maximum sentence for the offence of Attempted Murder is life imprisonment, the six years imposed by the trial court are not harsh or excessive.

I find no merit in this ground of Appeal.

Moses Kazibwe Kawumi

Judge

14^th June 2023