[2024] UGCA 193

# THE REPUBLIC OF UGANDA TN THE COURT OF APPEAL OF UGANDA AT JINJA

# lCoram: Kiryabuire, Kibeedi & Mugengi, JJAI CRIMINAL APPEAL NO. 0366 & 397 of 2OL7

(Aising from the judgment of the High Court of Uganda [Patricta Basaza Wasswa, Jl, in Ciminal Session Cqse No. O136 of 2015, dated 26il, September 2017, at Jinja)

MAFUBIRA JAMES ALIAS GOLOBA :==Appellant

#### VERSUS

UGANDA =Respondent

### JUDGMENT OF THE COURT

## Introduction

1. Mafubira James alias Golola ('the Appellant') was indicted with the offence of murder contrar5r to sections 188 and 189 of the Penal Code Act. The Prosecution alleged that on the 4th day of March 2013, at Circular Road, Jinja municipality in Jinja district, the Appellant, with malice aforethought, killed Amujulu Veronica.

- 2 The facts are that the Appellant picked the deceased and her siblings from their home without their mother's consent and took them to a swimming pool at Circular Road in Sekitto Ahmed's premises, where the Appellant worked. Despite his knowledge that the deceased could not swim, the Appellant pushed her into the swimming pool, where she died. The post-mortem report indicated the cause of death as drowning. - 3. On the 26th day of September 2017, the Appellant was found guilty of the murder and sentenced to thirty years (30) imprisonment. Dissatisfied with the Judgment and sentence of the High Court, the Appellant ftled this appeal on the following grounds. - i. The Learned TiaI Judge erred in law when she failed to properlg eualuate the euidence on record relating to the acqtsed's participation, therebg coming to a wrong conclusion. - ii. The Learned Trial Judge erred in laut in giuing an illegal and unconstitutional sentence of thirtg gears' imprisonment. - The Respondent opposed the appeal and contended that the learned trial judge did not err in evaluating the evidence as a whole and the conclusion and sentence. 4

#### Submissions

Appellant's Submissions.

- 5. Martin Asingwire Advocate appeared for the Appellant on state brief at the hearing. Mr. Kyomuhendo Joseph, Chief State Attorney, and Ms. Eunice Baine, State Attorney from the Directorate of Public Prosecutions, appeared for the Respondent. - 6. Counsel for the Appellant referred the Court to page 10 of the Appeal Record and submitted that Abbo Proscovia(Pw1) did not know who killed her daughter or who was last seen with her because her evidence was hearsay and inadmissible under Section 59 of the Evidence Act. Pw1 had testified that Walter Ocan, brother of the deceased, informed Pwl that the Appellant had picked them up from home. Walter did not testify and was instead taken to South Sudan because of alleged threats from Ssekito, at whose pool the deceased lost her life. - 7. Counsel for the Appellant further submitted that the Appellant's participation was not proved beyond doubt. He referred to page 14 of the Appeal Record, wherein the trial judge expressed concern for the failure of the prosecution to charge Ssekito jointly with the Appellant or to obtain ^a statement from him despite his name featured. Counsel submitted that the trial judge erred when she heavily relied on circumstantia-l evidence and ignored the direct proof of Pw2 that Sekitto killed the victim. He relied on the authority of Bulirq. & Anor us. Uganda SCCA 67 of 2075 for the

preposition that to convict based on circumstantia-l evidence, the Court must rule out any circumstance that would weaken or destroy the inference of guilt.

8. Concerning the sentence, Counsel for the Appellant submitted that the sentence of 30 years' imprisonment was illegal. He relied on the authority of Sundga Muhannudu & 568 ors Vs. AG, [2022] UGCC 7, which held that sentences of between 2I and 73 years' imprisonment have no enabling legislation and are a breach of Article 28(8) and (12) of the Constitution. That such sentences are deemed to be sentences of 20 years' imprisonment. He also cited Tigo Steaen I/s. Uganda, [20111 UGSC 7. Counsel further faulted the trial judge for not arithmetically deducting the pre-trial remand period of four years, six months, and 23 days from the sentence prescribed in Article 23(8) and the case of Ruabugande Moses Vs. Uganda [2014 UGSC 8.

## Submissions for the Respondent.

9. Counsel for the Respondent summarised the evidence o1 the three prosecution witnesses and submitted that the evidence of Pw2 on page 23 of the Appeal Record corroborated that of Pw1, to the effect that the deceased went with the Appellant to fetch water at a tap next to a swimming pool at Sekitto's place. On page 42 of the Appeal Record, the Appellant does not deny going with the children

to Ssekito's place, leaving no doubt that the Appellant was the last person to be with the deceased.

- 10. Counsel further referred the Court to pages 23, 24,26, and 27 of the Appeal Record, where Pw2 narrated how her sister met her death at the hands of Ssekito and the Appellant. On the fateful day in the evening, the Appellant went to the home of deceased in the evening and ate food. As he returned to his workplace, he moved with the deceased and her siblings to fetch water at Ssekito's home. Nyamwenge Juliana(Pw2), sister to the deceased, narrated that while there, Ssekito tied the deceased's mouth while the Appellant held Pw2's mouth. Another man strangled the deceased, after which Ssekito threw the deceased into the pool and drove off. - 77. The Respondent further submitted that the evidence of Pw2 was not disputed since she was not cross-examined. Counsel submitted that the evidence of Pw2 corroborated that of Pwl as to the presence of the Appellant and Ssekito at the scene and the drowning since Pw1 found her deceased daughter in the pool. Counsel cited Section 20 of the Penal Code Act on common intention to execute an unlaw{ul. He also cited the case of Kisegeruta & o,nor Vs. Uganda [1978] UGCA 6 and Nangonjo Hqrriet & qnor Vs. Uganda 2OO7[UGSC 70, on the application of the doctrine of common intention where the Court noted that the

presence of an accused person, their actions, and or omissions may impute a common purpose.

- 12. Concerning inconsistencies in the prosecution evidence regarding the number of children who went to Ssekito's home, counsel submitted that they were minor and could not lead to the rejection of the prosecution's evidence, as noted by the trial judge on page 104 of the Appeal Record. Counsel cited the case of Kato John Kgambadde & Anor us. Uganda [2014 UGSC 32 and Angugo Siliaa Vs. Uganda [20211 UGCA 3, where the court held that major contradictions and inconsistencies will usually result in the evidence of the witness being rejected unless satisfactorily explained, and minor ones will be ignored unless they point to deliberate untruthfulness. - 13. On sentence, the Respondent submitted that the sentence of 30 years' imprisonment was lenient considering the circumstances of the offence. That murder attracts a maximum penalty of death. He cited the case of Sselcitolelco Yudqh & others Vs. Uganda SCCA No. 33 of 2074 for the proposition that an appellate court will not interfere with a sentencing judge's discretion unless the sentence is illegal or if the court is satisfred that the sentence imposed is manifestly excessive or so low as to amount to an injustice.

14. The Respondent further stated that the Tigo case (Supra) cited by the Appellant was distinguishable because the Court in the Tigo case was dealing with the issue of the vagueness of the sentence of life imprisonment, which had been qualified to mean 2O years. The case of Ssekautoga Bldsio Vs. Uganda, [20181 UGSC 6 clarihed that the life imprisonment sentence for murder was not qualified to mean 20 years. On failure to deduct the remand period, Counsel conceded that the trial judge did not deduct the pre-trial remand time of 4 years, 6 months, and 23 days from the sentence and prayed that the same be deducted.

### Court's consideration.

15. We have carefully studied the Court record and considered the submissions for either side, the lau, and authorities cited therein, and those not cited but applicable to the present case. A first appeal from the decision of the High Court to this Court requires this Court to review the evidence and make its inferences of lar,'', and fact. See Rule 3() (1) (al of the Judicature (Court of Appeal Rules) Directions S. I 13-10. On a first appeal, this Court must "review the case's evidence and reconsider the materials belore the trial judge. The appellate Court must then make up its mind not disregarding the Judgment appealed from but carefully weighing and considering it." See Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 1O of 1997. - 16. Alive to the above-stated duty, we shall proceed to resolve the grounds of appeal as below. - Ground one-Failure to properly evaluate evidence concerning the accused's participation. - 17. From the evidence of Pwl, Pw2, Dwl, and Dw2, it is not disputed that the Appellant was with the deceased at Sekitto's home on the fateful day. On page 42 of the trial record, the Appellant admits that the deceased and her brother followed him after dinner to fetch water at the residence of Sekitto, where the Appellant worked. The Appellant routinely had dinner at the home of Pwl, the deceased's mother. He testified that he used to slash grass in her compound. - 18. The admission by the Appellant renders Counsel's submission that Pwl does not know who her daughter was last seen with incredible. On page 43 of the tria,l record, the Appellant further admits that he left the children playing outside and went to the house to get a pipe to water plants. On return, "I found one of the children had fallen in the uater and the other telling her to cotne out of the water." The Appellant testified that he went to notify the gatekeeper, Peter Emmanuel so that they could see how to remove the child from the pool.

- 19. The Appellant's presence at the scene was proved beyond doubt by prosecution and defense witnesses. Pw2 narrated how her sister met her death. Sekitto tied her mouth while another person strangled her, after which Ssekito threw the deceased into the pool. The Appellant was, in the meantime, holding Pw2's mouth. Counsel for the Appellant submitted that this testimony proved that Ssekito was the principal perpetrator. Counsel referred to the Judgment on page 1O9 of the Appeal Record, where the trial judge expressed concern over the failure to charge Ssekito, given that his name kept featuring. - 20. The failure of the police to Charge Ssekito doesn't render the Appellant's participation exculpatory. On page 106 of the Appeal Record, the trial judge found in her Judgment that: -

"euert if the accused did not kill the deceased with his own ho;nds, his doing nothing to saae her life per se associated. him with her murder."

This aligns with the doctrine of common intention provided for in section 20 of the Penal Code Act.

27. The Section provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of that purpose, an offense is committed of such a nature that

its commission \ ''as a probable consequence of the prosecution of that purpose; each of them is deemed to have committed the offence (emphasis added). In the case of Nanyonjo (supra), the Court held that an accused person's presence, actions, and omissions may impute a common purpose.

- 22. We agree with the findings of the trial judge that the Appellant participated in the commission of the crime with the common purpose to kill the deceased. - 23. We have further taken note of the contradictions regarding the number of children at the scene. We agree with the trial judge that the testimony of Pw2, regarding who was present and what role they played, is more credible. Though given under oath, the evidence was not subjected to cross-examination. The trial judge on page 104 of the Appeal Record noted that the contradictions and inconsistencies were minor in the context of the evidence as a whole because Pw2 was an eye witness at the scene while Pw3 was reporting what he believed transpired based on what Isabirye Peter (Dw2) told him.

Based on the above, we dismiss ground one of the appeal.

Ground 2-whether the sentence of 30 years is illegal / unconstitutional.

- 24. Counsel for the Appellant challenged the sentence on two fronts. One is the failure of the trial judge to deduct the pre-trial remand period. The Respondent conceded to this, and both parties prayed that the period be deducted. The second challenge is the constitutionality of the 3O-year sentence. The submissions in this regard are reflected above and need not be repeated. - 25. The law that governs appellate courts regarding sentencing is well settled. In Kamya Johnson v Uganda, SCCA No. 16 of 2OOO, the Supreme Court held: -

"It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently."

26. We have read the decision in the Sundya Muhamudu Constitutional Petition (supra) and the Tigo case (supra) referred to by Counsel for the Appellant. We believe ^a distinction must be made between the discretionary exercise of the judicial power of sentencing and the exercise by the executive of its power to enforce the sentences. The Page 11 of 13 controversy surrounding the definition of imprisonment for life for purposes of remission (20 years), which was at the center of discussion in the Sundya and Tigo cases (Supra), is within the mandate of the Prison Authorities to interpret in the course of enforcing a sentence.

- 27. However, that interpretation for enforcement of remission does not bar a judicial officer from passing out a sentence above 20 years when the circumstances demand so. This is because the prison authorities are still mandated to apply remission on other sentences. The Sundya case (Supra) did not declare the sentencing guidelines unconstitutional. This notwithstanding, we considered the decision in Bqlqndq Vs. Uganda [2024] UerCA 777, where the Court held that the decision in Sundya Muhamud does not supersede the Supreme Court's decisions. The doctrine of precedents mandates that decisions of superior courts are binding on a-ll lower courts, and the Supreme Court has passed varying sentences in murder cases, some higher than 21 years. - 28. Above all, the decision in the Sundya case was subsequently stayed by the Constitutional Court itself pending the disposal of the appeal which was frled in the Supreme Court by the Attorney General. - 29. The sentence of 30 years was appropriate. However, the Respondent conceded that the trial judge erred when

she did not deduct the pre-trial remand period. Both parties agreed that the pre-tria-l remand period was four years, six months, and 23 days. This period shall be deducted from 30 years. The Appellant sha-ll serve twenty-five years, five months, and seven days from the 26th of September 2017, the date of conviction. The appeal is partially allowed in the terms set above.

## We so Find

Dated at Kampala this ?G day of 2024. offrey Kiryabwire Justice ofAppeal Muzamiru M. Kibeedi Justice ofAppeal \*Monica K. Mugenyi Justice ofAppeal / t-I

\*This iudgment wo-s signed before this Judge Ceased to hold that o.ffice

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