[2025] UGCA 3

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

(CORAM: Irene Mulyagonja, Margaret Tibulya, Moses Kazibwe Kawumi, JJA)

#### CRIMINAL APPEAL NO.0152 OF 2020

[Appeal from the decision of Elizabeth Ibanda Nahamya, J delivered at Mubende on 2^nd May 10 2017 in Mubende Criminal Session Case No.083 of 2016]

#### 1. LWEGABA STEPHEN

- 2. BAGAMBISA JONAN - 3. BISHERWA PARETISON alias KABODE 15 **APPELLANTS** - 4. TUKAMUSHABA FEDERIKO alias FEDI - 5. NOEL GODSON alias GOD

## **VERSUS**

#### **UGANDA** 20

## **RESPONDENT**

# JUDGMENT OF THE COURT

The Appellants were indicted for Murder c/s 188 and 189 of the Penal Code Act. Each of the Appellants was convicted and sentenced to 41 years and 7 months' imprisonment.

Background. 25

> The background to the appeal drawn from the record of the trial court is that the first Appellant was the father of the deceased, late Senyondo Emmanuel with Scovia Nassuna as his mother.

$\mathsf{S}$

The first Appellant is stated to have had disagreements with Nassuna $\overline{5}$ arising from the fact that he got other wives whom he brought to share their house.

The later wives and their children started mistreating Nassuna and the first appellant started being violent. He started accusing Nasssuna of bewitching children born by the other wives. The first Appellant is alleged to have issued death threats to Nassuna and the deceased.

The deceased and Nassuna lodged a complaint at Mubende Police Station. On 15^th October 2014 an agreement was executed for the first Appellant to vacate Nassuna's house by the 15^th November 2014. The

first Appellant filed a suit against the deceased and Nassuna in the Chief 15 Magistrate's Court on 19^th November 2014 claiming that he was coerced by Police and the two defendants into executing the agreement.

The first Appellant is alleged to have convened a meeting with the other Appellants on 24^th December 2014 in which they conspired to murder 20 December 2014. On 28^th Senyondo. He was murdered on 25^th December 2014, the second Appellant allegedly handed himself over to Police and confessed to participating in the murder with the other Appellants. The second Appellant is alleged to have confessed that they were paid for doing it by the first appellant. 25

At the trial, the Appellants denied the charge and raised alibis accounting for their whereabouts at the time the deceased met his death. The second Appellant repudiated the Charge and Caution statement claiming that he was promised UGX. 200,000/= by SPC. Kato

and received a deposit of UGX. 10,000/= to implicate the other 30 appellants. The Officer then held his hand to write his name on the statement. He further claimed not to know how to read and write.

The trial judge held a trial within a trial and ruled that the Charge and Caution Statement was voluntarily made.

Page 2 of 24

He believed the Prosecution evidence relating to the participation of all $\mathsf{S}$ the Appellants in the murder, convicted and sentenced each of them to 45 years' imprisonment.

Dissatisfied with both the conviction and sentence, the appellants lodged an appeal on the following grounds:

- 1. That the learned trial judge erred in law and fact when she failed to properly evaluate the evidence adduced at the trial and thus arrived at wrong findings/decision. - 2. That the learned trial judge erred in law and fact when she relied on an inadmissible charge and caution statement to convict the appellants. - 3. That the learned trial judge erred in law and fact when she relied on an uncorroborated charge and caution statement to convict the appellants. - 4. The learned trial judge erred in law and fact when she relied on the Prosecution's unsatisfactory circumstantial evidence to convict the appellants. - 5. The learned trial judge erred in law and fact when she convicted the 3^rd, 4^th and 5^th Appellants without any evidence adduced against them. $\pi a$ - 6. The learned trial judge erred in law and fact when she disregarded 30 the appellants' defences of alibi thus convicting them and occasioning a miscarriage of justice. - 7. The learned trial judge erred in law and fact when she sentenced the Appellants to 41 years and 7 months' imprisonment which is manifestly harsh and excessive in the circumstances - 8. The learned trial judge erred in law and fact when she sentenced the Appellants in their absence in 2017.

The Appellants seek to have the conviction quashed by this court or for $\mathsf{S}$ the sentence to be reduced in the alternative. The Respondent opposed the appeal.

### Representation.

At the hearing of the Appeal on 22^nd October 2024, Mr. Sserunjogi Brian represented the Appellants while Ms. Samalie Wakholi, Assistant 10 Director of Prosecutions in the office of the Director Public Prosecutions appeared for the Respondent.

# **Submissions of Counsel for the Appellants.**

Mr. Sserunjogi observed that there was no copy of the judgment delivered by the trial judge on the lower court record and it had not 15 been availed despite a request for the same from the court registry. It was his submission that even in the absence of the judgment, he had filed the Memorandum of Appeal and submissions based on the existing record.

The court was urged to review the evidence placed before the trial 20 judge and come up with its own conclusions on the facts and the law to determine the Appeal as stipulated in Rule 30 of the Court of Appeal Rules.

# Submissions of Counsel for the Respondent.

- Ms. Wakholi informed court that she had prepared submissions in reply 25 raising objections on two grounds since she had been constrained on how to respond to the submissions filed for the Appellants. The first objection relates to the phrasing of the $1^{\text{st}},\,5^{\text{th}}$ and $8^{\text{th}}$ grounds of appeal which she contends do not conform to the requirements of Rule 66(2) - of the Court of Appeal Rules. 30

It was argued that the impugned grounds of appeal are not specific on what points of law or fact are in contention and should be struck out by the court.

The court was referred to Mugerwa John v Uganda, Criminal Appeal $\mathsf{S}$ No.0375 of 2020 and Benjamin Oteka v Uganda, Criminal Appeal No.175 of 2018 to support the argument.

The second objection was that for this court to exercise its mandate to re-evaluate evidence placed before the trial judge, there must be an earlier evaluation contained in the judgment of the trial court which was not available to the parties and the court.

Counsel argued that the Appellants cannot fault the trial judge on anything without the judgment since an appeal is always against the decision of a court. It was further argued that the submissions are a

total disconnect from what is contained in the Memorandum of Appeal 15 and ought to be disregarded under Rule 74(a) of the Rules of the court.

It was submitted that the appeal is therefore misconceived and should be dismissed since the duty of the court is to re-appraise the evidence adduced in the lower court and not to appraise it.

It further was submitted in the alternative that the court should invoke 20 its powers under Rule 32(1) of the Court of Appeal Rules to order for a re-trial. The court was referred to Ahmed Ali Dharamsi Kumar v R (1964)EA 481 and Rev. Father Santos Wapokra v Uganda, CACA No. 204 of 2012, for the proposition that the circumstances of the Appeal call for a re-trial for the interests of both the victim and the Appellant 25

to be served.

We promised to consider the written and oral submissions made by Counsel to arrive at a decision as we hereby do.

$m$

## Analysis.

We carefully perused the submissions filed and considered the oral 30 arguments by counsel. We further perused the record of proceedings in the High Court and reviewed the case law cited by counsel for the parties.

- The issues arising from the submissions by counsel are: $5$ - (i) Whether the court can determine an appeal on the basis of a record of proceedings without the judgment of the trial court? (ii)Available remedies

A perusal of the record of appeal revealed that the hearing started on 5^th May 2016. The court concluded taking of evidence on 23^rd February 10 2017 and the making of submissions was reserved for 10^th March 2017. Counsel were ordered to file skeletal arguments by 1st March 2017 and 3^rd March 2017, respectively.

On 12^th April 2017 the trial Judge summed up the case to the two Assessors who rendered their joint opinion, a copy of which was on the 15 record. On 2^nd May 2017, the court delivered the judgment as it could be derived from the partial record of the proceedings for that day. We find the excerpt below necessary to re-produce:-

> "This is the judgment in Uganda v Lwegaba Steven, Bagambisa Jonan, Bisherwa Paterson alias Kabode, Tukamushaba Federico alias Freddie and Noel Godson alias Godi.

I would like to seek the indulgence of the lawyers because these are very lengthy judgments that I have. I will let you know the ones that are not being contested, I will not read them. So am just going to give you a little bit of the background and then I will go to the malice aforethought because this is involving common intention and conspiracy and then I will go to the participation of the parties...... Prosecution relied on the medical evidence which was PEX1 on which Dr. Dixon Wanga noted deep injuries on the deceased's body....(see ruling on file)".

$20$

The record does not indicate that the judgment was read up to the end $\mathsf{S}$ by the trial Judge. There is also no record that the appellants were convicted of the offence for which they were indicted. However, at page 314 of the record, the trial judge called for submissions. We understood that to be the submissions in mitigation of sentence, before the judge could sentence what would now be the convicts. 10

Counsel for the parties then presented submissions in aggravation and mitigation of the sentence on the same day. The convicts also offered their statements in mitigation of the sentence that day.

The record of the proceedings for 28^th May 2017 shows that each of the Appellants was sentenced to 45 years' imprisonment from which 3 15 years and 5 months spent on remand were deducted. Each Appellant was therefore to serve 41 years and 7 months' imprisonment. The record does not however show that the Convicts were in court when the sentence against each of them was pronounced.

A letter dated 10^th January 2019 by the then Resident Judge to Counsel 20 who handled the trial shows that there was no sentencing record on the file at the time and the sentencing notes do not show the court attendance. However, the record shows that on 10^th October 2019, the Assistant Registrar pronounced the sentence to the convicts and they expressed their desire to appeal. terra 25

In view of the record that was placed before us, we are of the view that the trial judge did hold a trial and recorded the evidence adduced by the prosecution and the accused persons in great detail. The exhibits that were adduced in evidence were also properly admitted by the court and they were included in the record that was placed before us.

What is missing from the record is the written judgment that the trial judge adverted to, which is recorded as having been partially read in open court, as it is shown on page 313-314 of the Record.

Section 82 of the Trial on Indictments Act (TIA) at the time of these $5$ proceedings in the lower court provided as follows:

"82. Verdict and sentence.

(1) When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. The judge shall take a note of his or her summing up to the assessors.

(2) The judge shall then give his or her judgment, but in so doing shall not be bound to conform with the opinions of the assessors".

Section 85 of the TIA then provided for the mode of delivery of the 15 judgment as follows:

"85. Mode of delivering judgment.

(1) The judgment in every trial in the High Court shall be pronounced, or the substance of the judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time, of which notice shall be given, to the parties and their advocates, if any; except that the whole judgment shall be read out by the judge if he or she is requested so to do either by the prosecution or the defence".

It was recorded that the parties did not object to the mode that the trial judge proposed and delivered her judgment. However, though it is stated that the rest of the contents of the judgment, that is that the analysis and findings on the participation of the appellants and the conviction were in a ruling on file, none was found, even after a diligent search by the Registrar.

We therefore find that the trial was properly conducted up to the point $\mathsf{S}$ where the assessors gave their opinion to the court. But we cannot say that the trial court complied with the provisions of sections 82 and 85 of the TIA.

Counsel for the Appellants raised an issue about the court's failure to sentence the Appellants in their presence. However, at page 339 of the 10 record, the following notes appeared:

$10/10/2019$

All 5 accused in court.

Raymond Mugisha and State Attorney present.

Atingu - C. C Court: The accused persons are before court to 15 receive their sentence.

Sentence read in open court to each accused person.

R/A explained to accused.

Accused persons: We want to appeal against the sentence, Judgement and proceedings. 20

Sgd. Assistant Registrar

10/10/2019"

Johya.

The question for the court to resolve in the circumstances is whether the proceedings of the lower court should be reversed and a retrial ordered on account of the missing judgment. 25

- The courts have in a number of cases laid out the conditions to be $\mathsf{S}$ considered before ordering a re-trial. Some of the conditions are: - - That the original trial was null or defective as held in Ahmed Ali $(i)$ Dharamsi Sumar v. R (supra). - That the interest of justice requires it as held in Rev. Father $(ii)$ Santos Wapokra v. Uganda(supra). - That the witnesses who had testified were readily available to $(iii)$ do so again should a re-trial be ordered; and - No injustice will be occasioned to the other party if an order for $(iv)$ a retrial is made as held in Ajay Kumar Ghoshal v. State of Bihar & Anr (2017).

We do not think that the part of the trial before judgment was null or defective because the Appellants were granted a fair hearing. They were also allowed to call witnesses to support their various defences of alibi. We are also of the view that the interests of justice do not require that there be a retrial because the fact that there is no judgment on record would not nullify all of the evidence that was painstakingly recorded from the prosecution witnesses and the Appellants.

We observed that the trial began on the 12^th April 2016. And that though judgment was ostensibly given on 2^nd May 2017, the appellants were sentenced more than 2 years after the said judgment, on 10^th October 2019, more than 3 years after the trial commenced.

In addition to that, we note that the prosecution called 8 witnesses to prove its case. The appellants called 3 witnesses in their defence. It is now a whole 5 years after the appellants were sentenced by the trial court. It is doubtful that the prosecution will be successful in getting all of the 8 witnesses to testify again in order to prove its case.

- We are also mindful of the fact that the offence for which the $\mathsf{S}$ Appellants were tried required members of the family of the deceased, the first Appellant and his son, to testify. It would be inconsiderate of the court to subject them to the trauma of testifying afresh in this matter, if a retrial were ordered. - We are of the view that since the trial from which this appeal arises was 10 held up to the point when judgment was supposed to be rendered but no written judgment was found on record, the gaps in the proceedings can be remedied by this court. This is pursuant to the provisions of section 11 of the Judicature Act which confers parallel jurisdiction on this court with the trial court as follows: 15 - "11. Court of Appeal to have powers of the court of original jurisdiction. For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated".

This court in Aluelo Mike v. Uganda, CACA No. 823 of 2014, was faced with a similar situation where a judgment delivered by the trial court was missing from the record of appeal. The court invoked its powers derived from Section 11 of the Judicature Act and Rule 30(1)(a) of the Rules of this court to reappraise the whole of the evidence and rendered judgment and so determined the Appeal. $\n *Man*\n$

Rule 30(1)(a) of the Court of Appeal Rules further mandates this court to re-appraise the evidence tabled before the trial Judge to come up with its own conclusions on it.

The Supreme Court expounded on the import of this rule in Kifamunte $\mathsf{S}$ Henry v. Uganda [1998] UGSC 20, as follows:

$10$

"We agree that on a first appeal, from a conviction by a judge, the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial Judge. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it When a question arises as which witness should be believed rather than another and that question turns on manner and demeanour the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing from the judge even on a question of fact turning on credibility of a witness which the appellate court has not seen.

The Court of Appeal is precluded from questioning the findings of the trial Court, provided that there was evidence to support those findings, though it may think it possible or even probable that it would not have itself come to the same conclusion, it can only interfere where it considers that there was no evidence to support findings of fact."

Guided by the provisions of the law and the dicta of the Supreme Court $\mathsf{S}$ in the appeal above, we shall subject the evidence adduced before the trial court to a fresh scrutiny and review the submissions made by counsel during the trial. This will enable us to establish whether there was sufficient evidence to convict the Appellants of the offence for

which they were indicted. 10

> For those reasons, we hereby quash the sentences that were imposed on the appellants and will re-appraise the evidence before us and come to a decision of our own as to whether there is sufficient evidence to convict the appellants for the offence of murder.

## Re-appraisal of the evidence. 15

The allegation is that the first appellant hired the rest of the appellants to murder Senyondo due to alleged family disputes. The Appellants were not seen by anyone during the commission of the offence. The first appellant was arrested on information allegedly received by Police and his suspicious phone calls witnessed by PW7 on 26th December 2014. He was also implicated by the second appellant.

The third, fourth and fifth Appellants were added to the Indictment due to the Charge and Caution Statement of the second Appellant, implicating them as joint participants in the murder. The second Appellant later repudiated the statement claiming it was not given voluntarily. The assertion was however overruled by the trial Judge after conducting a trial within a trial. $p$ on

The position on the reliance on circumstantial evidence as a basis for convictions by the courts is well settled. The circumstantial evidence must point irresistibly to the guilt of the accused. The inculpating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt.

See, Mureeba Janet v. Uganda, SCCA No.13 of 2003; Musoke v. Uganda, (1958) EA 115.

- The second appellant denied that he made the confession even after it $\mathsf{S}$ had been ruled by the court that it was recorded voluntarily. The position of the law is that court can convict on a retracted or repudiated or both retracted and repudiated confession alone, if it is satisfied after considering all material points and the surrounding circumstances of - the case that the confession cannot be but true. $10$ Matovu Musa Kassim v Uganda, SCCA No.27 of 2002.

The East African Court of Appeal in Tuwamoi v. Uganda [1967] EA 84,91 held that a trial court should only accept any confession which has been retracted or repudiated with caution and must before founding a conviction on such a confession be fully satisfied in all circumstances that the confession is true.

It was further held in the same case that unless the confession is corroborated in material particulars by credible independent evidence, or unless the character of the confession and the circumstances under which it is taken indicate the truth, it is unsafe to rely on such a confession.

Each of the Appellants raised an alibi as a defence. Under the Law, an accused person who raises a defence of alibi does not have the burden of proving it. The duty lies on the Prosecution to place the accused at the scene of crime as the perpetrator of the offence. The trial court is then required to evaluate both versions of evidence and give reasons why one and not the other version is accepted.

See, Sekitoleko v. Uganda [1967] EA 531. Bogere Moses v. Uganda. SC Criminal Appeal No.1 of 1997.

- For a conviction on the offence of murder to be sustained, the $\mathsf{S}$ Prosecution is required to prove the following ingredients of the offence; - 1. That there was death of a human being - 2. That the death was unlawfully caused

- 3. That the death was caused with malice aforethought - 4. That the accused participated directly or indirectly in causing the death.

It was not disputed that Senyondo died on 25^th December 2014. This was confirmed by the first appellant and other witnesses. A copy of the post-mortem report was admitted in evidence as PEX1. The death was also unlawful since it was neither as a result of an accident nor authorized by the law.

The death was attributed to damage to the brain due to contusion and acute haemorrhage incompatible with life, according to Dr. Wanga who carried out the post-mortem examination on 26^th December 2014. The body had over eight deep cut wounds on the head, cuts on the back, and one of the index fingers was missing.

Given the nature of the injuries and the parts of the body targeted, we concluded that the assailants did not intend that the victim survives. The nature of the injuries points to malice aforethought harboured by whoever caused the death.

- Bagambisa, the second appellant claimed to have run to Kibati Police 30 Post on 27^th December 2014 to escape from a mob that wanted to lynch him for having stolen a cow. It was his evidence that he was transferred to Mubende Central Police Station on the same day, where Special Police Constable Kato promised him UGX.200,000/= to implicate the - Appellants and further forced him to sign the statement by holding his 35 arm as he did so.

- The second appellant claimed that he did not know SPC Kato before, did $\mathsf{S}$ not know how to read or write, did not know the co-appellants before arrest and was not charged or cautioned for the murder alleged against him. Further, that SPC Kato only told him to repeat some words as he wrote the Charge and Caution statement which was not read back to - him by PW2. 10

Surprisingly, the second appellant could not repeat to the court any of the words he claims SPC Kato told him to state when asked to do so in court during the trial. We made an inference that the second appellant was not a truthful witness; he feared to contradict himself before the trial Judge.

In the repudiated Charge and Caution statement, the second appellant implicated himself and the other Appellants in the murder of Senyondo. He narrated how they met at the home of the first Appellant and agreed to murder Senyondo on 25^th December 2014.

The first Appellant provided the motorcycles, which were used to travel 20 to the trading centre near the home of the deceased. They hid in a bush near his home and cut him with pangas as he alighted from his car after which they ran back to the trading centre and rode off to their homes.

The trial court ruled that the statement was voluntarily made. We find no grounds to depart from the finding of the trial court in that respect 25 for a number of reasons.

We observed that the Charge and Caution statement reveals the minute details of how the offence was planned and executed from the preparatory meeting, the details on who inflicted which injury on which part of the body and how the assailants moved from the scene of crime. Only someone involved at all stages of the exercise as an active participant and eyewitness could have been that familiar with the contents. - The second appellant also deliberately gave contradicting evidence $5$ about his age. Whereas he was examined by Dr. Wanga and found to be 20 years old at the time of arrest, he claimed to be 17 years and later 18 years old during the trial within a trial. However, he stated in his defence that he informed Police that he was 19 years old at the time of - arrest. The deliberate lies about his age were an attempt to free himself $10$ from the confession statement on the ground that he was a juvenile at the time that he made it.

In addition, the second appellant who claimed not to have known the first appellant before the murder was seen talking to him on arrival at Mubende Police Station. This piece of evidence by D/ASP Kwishima Allan (PW7) was not challenged in cross examination.

It points to prior knowledge of the first by the second appellant. It also corroborates the second appellant's own admission in the Charge and Caution Statement that the first Appellant cautioned him not to implicate anybody in committing the crime on his arrival at Mubende Police Station.

The injuries on the body of the deceased that were noted in the Post Mortem Report closely matched the description of the parts of the body to which the assailants inflicted injuries to the deceased in the confession statement of the second appellant. This points to his prior knowledge of what transpired during the attack on the deceased and no Police Officer could have invented such detailed information to maliciously implicate the appellants. $\rho$ $\rho$ $\rho$

We noted that the second appellant knew the first appellant before and they had met on 21^st December 2014 the date on which they agreed to 30 have the 24^th December 2014 meeting.

The second appellant who claims to have arrived at 5.00 pm observed all other appellants coming for the meeting. The second appellant also spent time with them while waiting for the first appellant to come with

the pangas and motorcycles on which they travelled to the home of the $\mathsf{S}$ deceased.

The time the second Appellant spent with his co-appellants was long enough to properly identify each of them before and during the meeting. He further observed them on the day the offence was committed and described which of the two motorcycles each of them travelled on, which strengthens the identification evidence in the Charge and Caution Statement.

We further failed to find any justification for a Police officer to bribe the second appellant with UGX. 200,000/= in order for him to implicate other Appellants in the Charge and Caution statement. SPC Kato whom 15 the second appellant accused of having given him a part payment of UGX. 10,000/= and forced him to write his name was not qualified to record such statements.

The trial Judge further believed the evidence of D/AIP Tukahebwa Martin (PW2) in the trial within a trial. She ruled that SPC Kato whom 20 the second appellant accused of having forced him to append his hand on the statement was not at the Police station at the time the statement was recorded.

The trial judge further observed that the second appellant's statement in that regard came forth as a figment of his imagination and did not 25 seem truthful. It was further observed by the trial Judge that the second Appellant who had pretended not to know how to write handled a pen given to him to write not as a person unfamiliar with writing.

The trial Judge disbelieved the evidence by the second appellant to the effect that SPC Kato bribed him to confess and implicate other 30 Appellants since they did not know each other before. The court believed PW2 who substantially followed the guidelines on recording confession statements and ruled that the second appellant volunteered the contents in the impugned statement.

We are of the view that the charge and caution statement was $\mathsf{S}$ voluntarily recorded from the second appellant and its contents coherently bring out the planning and execution of the offence all the appellants were convicted for. We are fully satisfied that the confession by the second appellant was true and can be relied upon for a conviction.

We however, find it imperative to observe that not much in terms of investigations was done by the Police in the instant case. D/ASP Kwishima (PW7) claimed to have confiscated the first appellant's phone on 26^th December 2014. He also claimed to have received a call on the same set from one Julius Kam Kiv demanding for the balance for the completed assignment from the first Appellant.

PW7 did not exhibit the call data records to show whose phone was used to demand the balance presumably for the murder of Senyondo. That line of investigations appears to have been abandoned when PW7

was transferred from Mubende Police Station. D/Constable Wabwire 20 the Scene of Crime Officer also recovered a number of items including two pangas and clothes suspected to carry blood stains.

The items were forwarded to the Government Analytical Laboratory for forensic examination. The Prosecution only exhibited Police forms forwarding the items. Evidence of the findings from the Laboratory was not produced.

We noted an attempt by the first appellant's wife Tusege (DW7) to deny the close connection between the first and third appellants. The first Appellant told court that the third appellant was his relative and they

met often. His wife Tusege on the contrary claimed that the third 30 appellant would only visit their home twice a year and did not live in the same area with them. $\rightarrow \infty$

The first Appellant had however stated that the third appellant's home was about a mile away from that of DW7. We concluded that the

evidence by DW7 was an attempt to distance the first appellant from $\mathsf{S}$ the third appellant.

We also noted that the fourth appellant tried to justify his alibi. It was his evidence that on the day Senyondo was murdered, he went to visit a friend with his father Telefus at 3.00PM and left at 6.30 PM. The fourth appellant claims to have visited another friend and reached his

home at 7.30 PM.

The fourth appellant called his son Turyasaba (DW6) as a witness who told court that they visited his father's friend from 5.00 PM to 5.30 PM. The two reached home at 8.30 pm and slept at 10.00pm. What stands out is that the fourth appellant did not mention that he was with DW6

15 but was with his father Telefus. DW6 did not also mention that they were with his grandfather Telefus at all on that day.

There is also a contradiction relating to what time they spent with the host and when they reached home. DW6 could only account for the time he was with the fourth Appellant during the day which does not

20 cover the time the offence was allegedly committed.

All evidence considered, we are satisfied that the identification evidence of the second appellant coupled with the confession linking all appellants to the offence is more credible than the alibi defences of the appellants. We find no reasons to depart from the decision of the trial

judge to convict the appellants. We accordingly confirm the conviction of each of them for the offence of murder contrary to sections 188 and 189 of the Penal Code Act.

Grounds 1 to 8 of the appeal therefore had no merit and they fail.

## Ground 9 30

$\frac{1}{2}$

The complaint raised was that the trial judge erred when she sentenced each of the appellants to a sentence that was illegal, ambiguous, manifestly harsh and excessive in the circumstances of the case.

- It will be recalled that we set aside the sentences of 41 years and 7 $\mathsf{S}$ months' imprisonment imposed on each of the appellants for the reason that they were not based on any conviction recorded by the court. In the circumstances, we invoke the powers of the court under Section 11 of the Judicature Act to sentence the Appellants. - We are guided by the Constitution (Sentencing Guidelines for Courts 10 of Judicature) (Practice) Directions, 2013 which in Part 1 of the 3^rd schedule provides a starting point of 35 years and a sentencing range of 30 years up to death for persons to be sentenced for murder. Guideline 6(c) further requires the court to take into account the need for consistency with appropriate sentencing levels in respect of similar 15 offences.

In aggravation of the sentence to be imposed by the court, it was submitted for the Prosecution that the first appellant was 55 years old, the second appellant was 23 years old, the third appellant was 55 years old, the fourth appellant was 58 years old and the fifth appellant was 31 years old.

Prosecution pointed out that the offence was premeditated, callously executed as indicated by the multiple cuts inflicted on the deceased and yet there were many avenues that could have been explored to settle the disputes in the family of the first appellant. The court was implored to impose the death sentence. $\alpha$

In mitigation of the sentence, it was argued that the appellants were remorseful and were first-time offenders without any criminal record. The appellants had also been on remand for 3 years and 5 months which

factors the court was called upon to consider in determining an 30 appropriate sentence.

The first appellant prayed for a lenient sentence to be able to serve and get time to look after his family and further told court that he had a boil on his left shoulder as mitigating factors. The second appellant sought

a lenient sentence for him to serve and return home to look after his $\mathsf{S}$ grandmother and to marry and get a child.

The third appellant told court that he had hypertension and prayed for a light sentence to enable him return home to look after his children while the fourth appellant claimed to have ulcers which could not be

treated in Prison. He also raised an issue about his children who had 10 dropped out of school. The fifth appellant prayed for leniency so that he can serve and return home to care for his children.

In Kiiza Swaibu v Uganda, CA Criminal Appeal No.204 of 2015 the appellant who was found guilty of hacking his lover to death. This court set aside a sentence of 37 years imposed by the trial court upon the 15 appellant and re-sentenced him to 27 years. In Musiita &Another v Uganda, CA Criminal Appeal No.264 of 2021, this court confirmed a imposed on the appellant who was found guilty of sentence of 30 hiring people to murder the deceased.

In Florence Abbo v. Uganda, CACA No.456 of 2016 this court confirmed 20 a sentence of 40 years for murder. The appellant intentionally offered a drink laced with a poisonous substance to an unsuspecting child related to her which led to his death.

In Aharikundira Yustina v. Uganda, SCCA No. 27 of 2015 in which the appellant was found guilty of murdering her husband by cutting off his 25 body parts, this court set aside the death sentence imposed by the trial court and substituted it with 30 years' imprisonment.

The similarities in the cited cases and the instant case are that a single person was killed in each of them. The victims were closely related to the appellants in each case and there was an element of hiring other people to commit the murders in some of the cases.

We also find the dicta in Muhwezi v Uganda, CA Criminal Appeal No.198 of 2013 relevant to the determination of an appropriate sentence in this case. The court noted as follows:

- 5 "Although the circumstances of eoch cose moy certoinly differ, this court hos estoblished o ronge within which these sentences foll. The term of imprisonment for murder of o single person ronge between 20 to 35 yeors of imprisonment. ln exceptionol circumstonces, the sentence may be higher or lower." - 10 15 We have considered the aggravating and mitigating factors in respect of each of the Appellants. Each of the appellants is a first offender and save for the second appellant has a family to take care of\_ On the aggravating side howevel murder is a grave offence. The one in the instant case was premediated and executed using resources provided by the first appellant to facilitate its commission by the rest.

The offence was also avoidable since the first appellant had lodged ^a complaint in court and the case had been fixed for hearing. The presumption to be made is that the civil suit was filed to make the first appellant appear as a law abiding citizen yet he was planning to take the law in his own hands by murdering one of the defendants.

Taking into account the aggravating and mitigating factors, having reviewed the sentences upheld by this court in murder cases and in conformity with the principle of consistency in sentencing, we find ²⁵ years imprisonment appropriate for the 2nd appellant. He was a young man of 20 years at the time the offence was committed and capable of reforming into a useful citizen after serving the sentence.

We find 30 years' imprisonment appropriate for the rest of the appellants. These were middle aged family men who ought to have reconsidered their involvement in committing a murder but sadly chose

³⁰ to make financial gains out of it. a\_

The second a ppell ant is sentenced to 25 years on account of his age at the time the offence was committed. He was 20 years old and capable of reform.

⁵ The period of 3 years and 5 months spent on remand is deducted and he shall serve 21 years and 7 months'imprisonment from 28th May 2017 .

The first, third, fourth and fifth appellants are each sentenced to ³⁰ years imprisonment. The period of 3 years and 5 months spent on remand is deducted and they shalleach serve sentences of 25 years and 7 months imprisonment from 28th May 2077, the date on which they were first senten ced.

We so order.

Signed and delivered at Kampala this Zt.o^v ot 20u. !^"""{ '\_ \_l

)

lrene Mulyagonia Justice of ApPeal

A\

M aret Tibulya Justice of Appeal

25 Moses Kazibwe Kawumi Justice of ApPeal

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