[2021] UGCA 174

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

(Coram: Elizabeth Musoke, Barishaki Cheborion and Hellen Obura, JJA)

# CRIMINAL APPEAL NO. 263 OF 2016

#### MUGODA THOMAS ALIAS MUKIBI ::::::::::::::::::::::::::::::::::: $\overline{5}$

### **VERSUS**

UGANDA ::::::::::::::::::::::::::::::::::: [Appeal from the decision of the High Court of Uganda sitting at Pallisa (Hon. Justice Henry I Kaweesi ) delivered on 28^th July 2016 in Criminal Session Case No. HC-CR-95-2013

# JUDGMENT OF THE COURT

The accused Magoda Thomas (now the appellant), was indicted of Murder contrary to Sections 188 and 189 of the Penal Code Act tried, convicted and sentenced to 20 years' imprisonment. The prosecution alleged that the appellant, 15 on the night of 25/2/2012, at his home in Kasanja village, Pallisa District strangled to death his lover Kayedeke Marita.

The prosecution case was that on the fateful day, the appellant picked the deceased from her house and took her to his home. At around 1.00am on 25/2/2012, the appellant contacted his neighbors for help and told them that the deceased was at his home in critical condition. Some of his neighbors went to his home and noticed that the deceased was already dead. They wanted to make an alarm but the appellant stopped them. He also stopped them from informing the sons of the deceased about the matter.

- They took the deceased's body to Kanginima Hospital. On reaching the hospital, $\mathsf{S}$ a nursing assistant realized that the deceased was already dead. When she told the appellant that the patient had already died, the appellant and his friend with whom they had brought the deceased pretended to be looking for transport to take away the body and they disappeared. - The following morning, the relatives of the deceased were informed and a case 10 was reported to Kanginima Police Post and investigation commenced. The police visited the scene of crime and a sketch plan was drawn. The body of the deceased was subjected to medical examination and it was found to have abrasions on the legs, the neck bones were fractured and the cause of death was established to 15 be manual strangulation.

On $26/2/2012$ , the appellant reported himself at Pallisa Police station in fear of being lynched. He was charged with murder and upon examination he was found to be of normal mental status. A charge and caution statement was recorded and the appellant admitted that the deceased was at his home at the material time but denied having killed her. That he was seated in the sitting room only to hear the deceased screaming for help in the bedroom and upon rushing there, he

found her unconscious.

2 | Page

The appellant pleaded not guilty to the offence. The trial Judge convicted him of murder and sentenced him to 20 years imprisonment. Being dissatisfied with the judgment, the appellant appealed to this Court against both conviction and sentence.

$\mathsf{S}$ The grounds of appeal are as follows:

- 1. THAT the learned trial judge erred in law and fact in holding that the appellant participated in the killing of the deceased. - 2. THAT the 20 years imprisonment imposed on the Appellant was manifestly excessive - During the hearing of the appeal, Mr. John Isabirye represented the appellant 10 on State Brief while Ms. Happiness Ainebyona, Chief State Attorney represented the respondent.

The appellant was not in court physically but attended the proceedings via video link to Prison. Both parties sought, and were granted, leave to proceed by way of written submissions which were already on the court record.

This being a first appeal, we shall exercise our duty under **Rule 30 (1) (a)** of the Rules of this Court to reappraise the evidence adduced at trial, draw inferences of fact and come to our own conclusion. This mandate of the Court was reiterated in Kifamunte Henry v Uganda SCCA NO. 10 of 1997, where it was held that "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."*

On ground 1, Counsel for the appellant argued that there was no evidence regarding the participation of the appellant because no witness saw the appellant kill the deceased. That in Simon Musoke vs R (1958) EA it was held that in a case depending exclusively on circumstantial evidence, the court must before deciding on conviction find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt.

Counsel also cited Twinomugisha Alex & 2 others vs Uganda, SCCA No.35 of 10 **2002** for the proposition that there must be an irresistible inference of guilt from the surrounding circumstances before conviction may be entered in a case where prosecution relies wholly or almost exclusively on circumstantial evidence. That in the instant case, it can be construed that PW1 was mistaken as to who picked 15 up the deceased and as to what time she was picked as she testified that he saw the appellant take the deceased at midnight yet the doctor testified that he

received the deceased at 11:00pm.

$\mathsf{S}$

He submitted that the probative value of the prosecution evidence falls short of the standard of proof required in criminal cases.

Further, it was submitted for the appellant that he did not participate in the 20 strangulation of the deceased. That he organized her and took the deceased to hospital, remained there until the deceased was pronounced dead and reported the matter to police. He cited Nakisige versus Uganda, Supreme Court Criminal Appeal No. 15 of 2009 where court considered the effect of the accused's conduct during and after the action of death and noted as follows;

"In cases of homicide, the intention of the accused person at the time of committing

$\mathsf{S}$ the offence is rarely by direct evidence. More often than not the court finds it necessary to deduce the intention from the circumstances surrounding the killing including the mode of killing, weapon used and the part of the body injured."

In reply, the learned Chief State Attorney opposed the appeal. She submitted that PW1, Kadondi Efulansi heard the appellant call the deceased from her home

$10$ at around midnight and saw him leave together with her. That the trial judge was alive to the fact that this was a single identifying witness and warned himself and the assessors on the dangers of convicting on such evidence and the need to test the evidence for cogency, truthfulness and reliability and the importance of corroboration of this type of evidence. He contended that the learned trial 15 judge rightly found that PW1 was a reliable witness.

Further, that the trial judge rightly found that the conditions were favorable for proper identification and ruled out any possibility of mistaken identity. That the appellant was properly identified as the person who took the deceased from her home in the presence of PW1 Kadondi Elufansi, killed her and dropped the body at the hospital.

It was further submitted for the respondent that the appellant during his defense, confirmed that he was with the deceased in the same house and that

this confirms his participation in the killing of the deceased. Counsel submitted that this evidence was corroborated by PW2, John Nolwe a brother to the deceased who testified that at 1:00am the appellant went to his home and told him that he had a visitor who had fallen sick only to find that the visitor was his sister in law, the deceased. That by the time they reached the hospital, the deceased was already dead.

Further, that the postmortem report PE1 showed that the deceased had injuries i.e. fracture of the neck bone and the cause of death was asphyxia-manual strangulation of the neck. That it is the appellant who killed the deceased having called her to his home from where she was taken to hospital.

## **Analysis of court**

$10$

From the submissions of counsel, the only ingredient in contention is participation of the appellant. The learned trial judge was faulted for holding that the appellant participated in the killing of the deceased. We are alive to the fact that there was no evidence of a witness who saw the appellant strangle the deceased. The only evidence available is circumstantial in nature.

As to whether a conviction can be based solely on circumstantial evidence, Ssekandi J. A (as he then was) in his lead judgment in Amisi Dhatemwa Alias Waibi vs Uganda; Court of Appeal Criminal Appeal No. 23 of 1977, had this to say:

"It is true to say that circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of proving facts in issue accurately: it is no derogation of evidence to say that it is circumstantial, See: R vrs Tailor, Wever and Donovan, 21 Criminal Appeal R 20. However, it is trite law that circumstantial evidence must always be narrowly examined, only because evidence of this kind may be fabricated to cast suspicion on another. It is, therefore necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. See: Teper vrs R.(1952) A. C 480 at p 489 See also: Simon Musoke vrs R (1958) E. A 715, cited with approval in Yowana Serwadda vrs Uganda Cr. Appl. No. 11 of 1977 (U. C. A).

$\mathsf{S}$

The burden of proof in criminal cases is always upon the prosecution and a case based on a chain of circumstantial evidence is only as strong as its weakest link."

The Supreme Court reaffirmed the above position of the law in **Janet Mureeba** and 2 others-vs Uganda; Supreme Court Criminal Appeal No. 13 of 2003 in the following words:

"There are many decided cases which set out tests to be applied in relying" on circumstantial evidence. Generally, in a criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused. In $R$ -vs-Kipkering Arap Koske and Another [1949] 16 EACA 135 it was stated that in order to justify, on circumstantial evidence, the inference of quilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. That statement of the law was approved by the E. A Court of Appeal in Simon Musoke vs R [1958] EA 715"

In Bogere Charles vs Uganda; Supreme Court Criminal Appeal No. 10 of 1998, the Supreme Court referred to a passage in Taylor on Evidence 11^th Edition page 74 which states:

"The circumstances must be such as to produce moral certainty to the exclusion of every reasonable doubt."

The court is required to exercise caution when dealing with circumstantial evidence. In Teper vs R (2) [1952] AC 480 the court held that before drawing an inference of the accused's guilt from circumstantial evidence, the court has to be certain that there are no other co-existing circumstances which would weaken or destroy that inference.

The appellant's evidence clearly shows that he was with the deceased in the same house. The evidence also shows that there were only 2 people in the house at the time.

PW1, Kadondi Efulansi testified that the appellant who was their neighbor and friend to his mother now deceased, collected the deceased from their home at

12:00 midnight and the deceased did not come back until he got to know that she was dead the next morning. He also testified that the appellant is the only man who usually came to collect his mum at night and PW1 was familiar with him.

## In Bogere Moses and Kamba Robert versus Uganda CACA NO. 1 OF 1997 $\mathsf{S}$ held quoting Abdul Nabulere & 2 Ors versus Uganda [1979] HCB 77

"..... *where the quality is good for example when the identification is made after a* long period of observation or in satisfactory conditions by a person who knew the accused before, Court can safely convict even though there is no other evidence to

support the identification evidence, provided the court adequately warns itself of 10 the special need for caution..."

PW1, Kadondi Efulansi testified that the appellant came at 12:00 midnight and there was moonlight. That he followed his mother outside and asked the appellant where he was taking her. That the distance between her and the appellant was approximately 3 meters.

It was the appellant's testimony that he did not know how the deceased entered his house. He stated that there was a behind door that lead to his bedroom that was open that the deceased might have used to enter. This was a lie.

From the above evidence, it is clear that it is the appellant who called the deceased from her home and took her to his home. He was properly identified by 20 PW1, Kadondi Efulansi (son to the deceased). The appellant was well known to

Kadondi, because he was their neighbor and he usually came for her mother at night. Above all, there was moon light, which ably aided his identification. These were satisfactory conditions by a person who knew the appellant before. These facts were not challenged and no question of mistaken identification was raised by the appellant.

The appellant's testimony that he heard the deceased cry in his bed room as he sat in the sitting room at 9:30pm was watered down by the testimony of PW2 John Nolwe his brother who corroborated PW1's testimony. PW2 testified that the appellant came at his home at 1:00am and told him that he had a sick visitor and requested that he helps him take her to hospital. That on reaching the

appellant's home, the sick visitor was his sister in law, the deceased.

Section 133 of the Evidence Act provides that no particular number of witnesses is required to prove any fact and a conviction can be based on the evidence of a single identifying witness provided Court warns itself of the danger of basing a conviction on such evidence alone. From the record, the learned trial judge after 15 establishing that PW1 Kadondi Efulansi was a single identifying witness he cautioned himself and the assessors and went on to weigh her evidence against the requirements set out in Bogere versus Uganda (Supra) and Abdul Nabudere versus Uganda (Supra) and found her a reliable witness and she

20 rightly did so.

> Who then killed the deceased? The postmortem report PE1 showed that the deceased had a fractured neck born caused by manual strangulation. It was also

$\mathsf{S}$

established by PW2 Nolwe John during his cross examination that at the time they took the deceased to hospital, she was already dead. This was corroborated by PW3 Wandwasi Twaha and PW4 Baluka Suzan who testified that upon him reaching the hospital the day following the attack, he was told by the doctor on duty that the deceased was brought when she was already dead.

$\mathsf{S}$

From the time the deceased left her home, she was with the appellant. She was still with him when she was strangled and it was the appellant who took her to hospital together with PW2. She was taken from the bed of the appellant his house. The appellant alludes to this fact but asserts that he only heard the deceased cry from his bedroom at 9:30pm.

The evidence on record shows the lax behaviour of the appellant which is alarming. He testified that he heard the deceased cry in his bedroom at around 9:30 pm and that he did not know how she got into his house. He testified that it could have been his enemies who used the back door which was open to assault the deceased. However, he was heard and seen by the deceased's

son collecting the deceased from her home at 12:00 midnight which time was corroborated by PW2, Nolwe John whom the appellant personally fetched from his home at 1:00pm.

It is also disturbing that the appellant who had a strangled woman in his bed and had no idea how she got into his house could not raise an alarm for his 20 neighbours to come to his aid in the wake of the house break and the attack. He instead ran to PW2 and told him that he had a sick visitor in his house.

He even never told him that it was his lover who had been attacked by unknown people in his house. There were only 2 people in the house. Him and the deceased. He led no evidence proving that his house had been broken into. This clearly is a farfetched thought by the appellant.

This evidence points to no other logical conclusion than to the guilt of the $\mathsf{S}$ appellant. His actions and behaviour before and after the death of the deceased point irresistibly to the guilt of the appellant.

It was PW3 Wandwasi Twaha's testimony that the appellant and the deceased were lovers but the appellant had disappeared upon her death before he later reported himself to police. The appellant testified that after being told that his house had been burnt he feared the chaos and went to stay at one Kopia's place as he monitored the situation.

In our view, if the appellant feared for his life by going back to his home, the only place he should have run to was the police station for safe refuge than disappearing. The Supreme Court in Remegious Kiwanuka vs Uganda 15 **Criminal Appeal No. 41 of 1995**, observed that the disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he committed the offence. This is because such sudden disappearance from the area is incompatible with innocence of such a person. 20

For the above reasons, we find that the appellant's disappearance from the scene of crime provided further corroboration to his participation in the commission of the murder.

In our re-evaluation of the evidence of the witnesses PW1 Kadondi Elufansi, PW2 Nolwe John, PW3 Wandwasi Twaha and PW5 Kengo Francis, we find that the appellant killed the deceased.

$\mathsf{S}$

On ground 2, it was submitted for the appellant that the learned trial judge failed to consider the appellant's mitigating factors that include; the appellant was a first time offender and the prosecution had not adduced any evidence of their

- prior criminal record, he had spent 4 years, 5 months and 3 days on remand 10 before trial, he was of advanced age being 58 years by then and now 61 and had big family responsibilities. Counsel for the appellant cited **Naturinda Micheal** versus Uganda Criminal, Appeal No. 244 of 2014 where this court while considering the principles laid down in the case of PC Amukun John Micheal - & Another versus Uganda CACA No. 67 of 2011 held that the obligation is 15 placed upon the trial judge to explain which factors, both aggravating and mitigating are being considered to arrive at the appropriate sentence. Counsel contended that the learned trial judge failed to consider any of the appellant's mitigating factors before arriving at the sentence. That the learned trial judge only considered the aggravating factors which was absurd. 20

In reply, counsel for the respondent submitted that the appellant was not remorseful because he told court that he was ready to join those committed and

had nothing to add. This demonstrated the hardness of his heart and he needs rehabilitation and deterrent sentence. That the 20 years imprisonment was sufficient. Counsel contended that murder carries a maximum sentence of death and that 20 years could not be said to be manifestly excessive. In her view, it was a lenient sentence for the offence of murder given that the sentencing range starts from 30 years to death as provided in the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013.

$\mathsf{S}$

Counsel for the respondent cited **Kyalimpa Edward versus Uganda SCCA No.** 10 of 1995 for the proposition that an appropriate sentence is a matter for the

discretion of the sentencing judge and this court will not interfere with the 10 discretion of the trial judge unless the sentence is illegal or unless court is satisfied that the sentence imposed was manifestly so excessive as to amount to an injustice. He then invited court to apply the principle of consistency of sentences and uphold the sentence of 20 years imposed on the appellant and referred to Suzan Kigula vs Uganda, HCT-00-CR-SC-1-2004 and Uganda 15 versus Uwera Nsenga, CACA No. 0824 of 2015.

Regarding the appellant's period of 5 years, 5 months and 3 days spent on $\frac{1}{2}$ remand before conviction, Counsel for the appellant submitted that though the appellant's defense counsel highlighted the period during mitigation, it was not considered by the learned trial judge. He cited Article 23(8) of the Constitution and Rwabugande Moses versus Uganda Supreme Court Criminal Appeal No.25 of 2014 and submitted that a sentence arrived at without taking into

14 | Page consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision. That the learned trial judge overlooked material facts thereby imposing an illegal, harsh and manifestly excessive sentence in the circumstances and invited this court to resentence the appellant in light of section 11 of the judicature Act.

$\overline{5}$

The respondent never replied to this matter.

In sentencing the appellant, the learned trial judge ruled as follows;

" *Murder is punishable by death in the rarest of all cases. The accused person is* not remorseful. While being asked to say something he said" Am ready to go and

10 *join those committed, so I have nothing to add". This demonstrates a hardness of* heart. The accused needs rehabilitation and deterrence, Prosecution prayed for 20 years imprisonment. The court finds that from the death sentence accused deserves a long custodial sentence. He is sentenced to a custodial sentence of 20 *years imprisonment.*"

## In Kiwalabye v Uganda SCCA No 143 of 2001 it was held that; 15

"The appellate court is not to interfere with the sentence imposed by a trial Court" *which has exercised its discretion on sentence unless the exercise of discretion is* such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where the trial Court ignores to consider

an important matter or circumstances which ought to be considered while passing 20 the sentence.

## Article 23(8) of the Constitution provides that;

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the

$\mathsf{S}$ *term of imprisonment.*"

> In **Rwabugande Moses versus Uganda** (Supra), the Supreme Court held that a sentence arrived at without taking into consideration the period spent on remand is illegal for failure to comply with a mandatory constitutional provision.

**Guideline 15** of the Constitution Sentencing Guidelines Supra provides; 10

(1) *The court shall take into account any period spent on remand in determining* an appropriate sentence.

(2) The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account.

The record shows that the sentencing judge never took into consideration the 15 period the appellant had spent on remand of 5 years, 5 months and 3 days. It follows that the sentence meted out on the appellant was illegal.

Regarding the mitigating factors, the record shows that the appellant raised several mitigating factors including that he was a first time offender, had spent

20 time on remand, he was remorseful, has a family and children and he is the sole bread winner, he is of advanced age and prayed for 3 years sentence. However, the learned trial judge only alluded to his remorsefulness. No mention was made of the other mitigating factors instead, the trial judge considered mainly the aggravating factors.

In Ramathan Magala vs (Criminal Appeal No.01 Of 2014) [2017] UGSC 34 (20 September 2017); Supreme Court held that a judicial officer must record what the accused submitted in mitigation and this should be evident on record. The judicial officer must state that the sentence was arrived at with both the mitigating and aggravating factors in mind. It is only then that the accused will be sure that the judge addressed his or her mind to the cited mitigating factors but nevertheless came to the conclusion that the aggravating factors outweighed

the mitigating ones. 10

$\mathsf{S}$

Guideline 21 of the Constitutional sentencing guidelines lists factors that mitigate the sentence of death and among them are; a convict being a first time offender, advanced, age and family responsibilities.

Guideline 19 and Part I of the Third Schedule of the Constitutional Sentencing 15 Guidelines (supra) provide that the sentencing range for capital offences after taking into account factors that aggravate and mitigate the sentence is from 30 years up to death.

In Muhwezi Bayon Vs Uganda, Court of Appeal Criminal Appeal No. 198 of **2013**, this court after reviewing numerous decisions of the Supreme Court and the Court of Appeal stated thus:

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

We are also alive to the fact that the appellant was irrational, brutal, gruesome $\mathsf{S}$ and intentional in his actions that led to loss of human life

In light of the above, we accordingly set aside the sentence passed by the High Court and sentence the appellant afresh pursuant to Section 11 of the Judicature Act, which confers this court with the same powers as the High Court. The section provides;

'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'

In Francis Bwalatum Vs Uganda, C. A. C. A. No. 48 of 2011, the appellant had been charged and convicted of the offence of murder on two counts and sentenced to 50 years imprisonment on each count to run concurrently. This Court taking into account the mitigating factors reduced the sentence of 50 years on each count to 20 years imprisonment on each count to run concurrently.

In Stephen & 3 others Vs Uganda, C. A. C. A. No. 159 of 2017, the deceased had a land dispute with some of the neighbors. The appellant was convicted of murdering the deceased and sentenced to 41 years imprisonment. This Court reduced the sentence from 41 years' imprisonment to a sentence of 18 years' imprisonment.

In Adupa Dickens Vs Uganda, C. A. C. A. No. 267 of 2017, this court upheld the sentence of 35 years imprisonment for murder and held that it was neither harsh, nor manifestly excessive to warrant the intervention of the Appellate Court

$10$ In the case of **Anguyo Robert Vs Uganda, Cr. Appeal No. 48 of 2009**, this Court reduced a sentence of 20 years imprisonment to 18 years` imprisonment. The Appellant was 27 years old, pleaded guilty to murder of his uncle who he had hit with a hammer and had spent 1 year and 8 months on remand

In the case of Semakula Grace & Anor. Vs Uganda, Cr. Appeal No. 104 of 2013

(**unreported**) this court set aside sentences of 35 years and life imprisonment 15 for the first and second Appellants respectively upon a conviction of murder and reduced the sentences to 20 years imprisonment from which this court deducted the respective remand periods and sentenced the Appellants to 15 years and 6 months each.

$\overline{5}$

## Decision:

$\mathsf{S}$

Having re-considered both the aggravating and mitigating circumstances of the case as presented before the trial court as set out in this judgment, and the decisions of the Courts of Judicature for similar offences, we sentence the appellant to 20 years imprisonment. We deduct therefrom the period of approximately 5 years and 5 months and 3 days the appellant had spent on remand he shall serve a term of 14 years and 5 months from the date of

We confirm the conviction of the appellant but the appeal against sentence $10$ succeeds.

We so order.

Conviction.

$...2021.$ Dated at Jinja this... .day of $\ldots$

$\mathcal{O}$ Elizabeth Musoke

**JUSTICE OF APPEAL**

**Cheborion Barishaki**

**JUSTICE OF APPEAL**

Hellen Obura

JUSTICE OF APPEAL