[2023] UGCA 183

## THE REPUBLIC OF UGAIIDA

# II{ THE COURT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO. 285 OF 20T6

(Coram: Buteera, DCJ; Bamugemereire, Luswata, JJA)

#### 5 MUGERVA GERATD ::::::::33::33:::::::3:3:33:3:333:333:3:3333:::333::::: APPELLAI{T

### VERSUS

### UGAIIDA ::::::::3:3:33333333:333333:33333333:33:3333::3:::::::3333:3:3:333333 RESPONDENT

(Appeal against the decision of John Eudes l{eitirima, J, sitting in High Court Criminal Session Case l{o. 01 of 2017 Dated the 16'n 09 2016 at Masaka)

# JUDGMEI\T OF THE COURT

### Introduction

The appellant was convicted of the offence of Murder contrary to Sections IBB & fB9 of the Penal Code Aet, C"p 120, and sentenced to 45 years' imprisonment. It is alleged that on the 14'h duy of June 20I3 in the waters of Lake Victoria near Lujj abwa fishing village in the Kalangala District, the appellant murdered James Lusembo . 15

#### Backsround 20

- The background to this appeal as ascertained from the lower court record is that on the 14trt duy of June 20I3, Gerald Mugerwa, the appellant, and James Lusembo, the deceased were sent on a fishing expedition on boat no. 13 which belonged to one Tom Kiviri. The two were expected back between B:00am and 9:00am the following morning but never returned as

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Instead, on the 15trt of June 2013 at about 10:00 am? the appellant was arrested at Bugoma landing site by the Chairperson of Bugoma landing site. He was caught in the act of attempting to sell a fuel pipe at UGX100,000/=. The Chairman was tipped and on interrogating the appellant, he took them where he had kept the boat engine HP15 Yamaha,

5 which belonged to boat no. 13 and its fuel tanker. Boat No.13 was the one on which the deceased had set out with the appellant the evening he disappeared.

On the 2gtrt of June 2013, the body of the deceased washed up on the

- lakeshore. When a post-mortem was conducted, it revealed that the deceased had sustained a deep wound on the back and at the back of his head. His clothes were stained with blood. Upon arrest, the appellant admitted that he went fishing with the deceased on the fateful evening but denied killing him. His claim was that when the lake became turbulent, the 10 - deceased fell into the water and drowned. The appellant was convicted of murder and sentenced to 45 years imprisonment. Dissatisfied, the appellant appealed against both conviction and sentence. 15

### Grounds of appeal

- l. That the learned trial Judge erred in law and faet when he ignored the faet that there was no evidence that the appellant had killed the deceased and therehy convieted the appellant of murder. - 2. That the learned trial Judge erred in law and fact when he sentenced the appellant to 45 years imprisonment which sentence is illegal, harsh and exeessive in the circumstances of the ease - 25

### Representation

The appellant was represented by Mr. Sam Ssekyews, on State Brief, while the respondent was represented by Ms. f mmaculate Angutoko, Chief State Attorney, who held the brief of Ms. Sharifah Nalwanga, also a Chief State

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Attorney from the office of the Director of Public prosecutions. The appellant was present in court.

When this matter came up for hearing on the gth of June 2023, the respondent objected to the appeal for being filed out of time.

Counsel for the appellant sought leave of this court to enlarge time within which to file the notice of appeal and to validate the same under section 28 (6) of the Criminal Procedure Code Act and Rule 5 of the Court of Appeal rules. This application \^/as granted and the notice of appeal filed out of time was validated.

Case for the Appellant

Ground No. l: That the learned Trial Judge erred in law and faet when he ignored the fact that there was no evidence that the appellant had killed the deceased and thereby convicted the appellant of murder.

Counsel for the appellant submitted that the circumstances under which the deceased died were clearly explained by the appellant in his evidence. His submission was that the death of James Lusembo was accidental.

Counsel further submitted that the deceased and the appellant were no strangers to each other. They had worked together before. Counsel averred that there was no motive on the part of the appellant to kill his erstwhile friend whom he had known for a long time. 20

It was the appellant's contention that the prosecution was duty bound to prove that the appellant assaulted the deceased and drowned him. It was 25


his submission was that this duty was not discharged since none of the prosecution witnesses testified to seeing the appellant assault the deceased. Counsel submitted that had the trial Judge wholesomely considered the evidence on record, he would have come to a different conclusion.

5 He invited this court to allow this appeal and acquit the appellant of the offence of murder.

Ground No. 2z The learned trial Judge erred in law and faet when he sentenced the appellant to 4,5 years imprisonrnent which sentence is ille Eal, harsh and excessive in the cireumstances of the case.

Counsel for the appellant submitted that the trial Judge, while sentencing the appellant did not arithmetically take into consideration the period spent on remand, which constituted an illegality that contravened Article 23 (B) of the Constitution.

- Counsel cited Rwabugande Moses v Uganda SCCA No. 25 of 2014 and contended that this decision was passed by the Supreme Court on 3'd March 20L6 and was binding on the trial Judge in the instant case at the time he passed his sentence. Counsel submitted that the principles upon which an appellate court should interfere with a sentence were considered in the 15 - Rwabugande case where it was propounded that an appropriate sentence is a matter for the discretion of the sentencing Judge. 20

Counsel further urged us to follow decisions such as Susan Kigula v Uganda, SCCA lts of 20ll and to be persuaded by Uganda v Uwera Nsenga, No. 312 0f 2013 (L Mitigation), where convicts of similar offences of murder received lesser sentences. Counsel submitted that the sentence of 45 years'

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imprisonment meted out by the High Court was illegal, harsh and excessive and ought to be set aside.

### The Respondent's Case

5 In reply to the first ground, counsel submitted that this was a case dependent on circumstantial evidence and that the prosecution fully discharged its duty in proving the guilt of the appellant. Counsel submitted that the learned trial Judge did not err to rely on the evidence on record which was that; the appellant was the last person seen with the 10 deceased; there were phone records with communication between the deceased and the appellant; he attempted to sell the engine and fuel tank belonging to the boat they had used to go fishing and later gave conflicting versions of the whereabouts of the deceased. It was counsel's contention that all the prosecution evidence coupled with the condition in which the 15 wounded body of the deceased was found, left no reasonable explanation but that of guilt on the part of the appellant.

20 Counsel further submitted that the trial Judge evaluated the evidence and noted that the appellant's account had earlier been that the deceased had drowned yet the medical evidence showed that the deceased was first hit on the head before he drowned. Further, the appellant, in attempting to sell the motor boat never contacted the owner of the boat yet the telephone contacts were on the engine but instead he tried to sell the tank and fuel pipe. She added that the appellant gave differing versions of the

25 whereabouts of the deceased.

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Counsel cited Bulila Christiano & anor v Uganda SCCA No. 6l of 2015 where it was held that in a case depending exclusively or partially upon circumstantial evidence, the court must find that the inculpatory facts are incompatible with the innocence of the accused and incapable of

5 explanation upon any other reasonable hypothesis than that of guilt. Counsel prayed that this court upholds the conviction of the appellant on that basis.

10 Regarding the second ground on illegality and excessiveness of sentence? counsel for the respondent submitted that the trial Judge did not need to apply an arithmetical deduction of the remand period and the sentence was not excessive as alleged by the appellant.

Counsel contended that the trial Judge, while sentencing the appellant, considered the period spent on remand and did not follow the arithmetic method as was decided in Rwabugande (supra) since the decision in this matter was passed on 16'l' September 2016, \ilay before the Rwabugande decision which was decided on 3"1 March 2017. 15

Counsel argued that in the earlier decision of Katende Ahmed v Uganda SCCA No. 6 of 2004 it was held that Article 23 (B) of the Constitution did

not require a trial court to apply a mathematical formula by deducting the exact number of years spent by an accused person on remand. 20

It was counsel's submission that the sentence of 45 years' imprisonment was not excessive since murder carries a maximum sentence of death. Further that the Constitution sentencing guidelines provide for a starting

point of 35 years. Counsel contended that in the circumstances of this case, a sentence of 45 years was within the law and thus legal. 25

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Counsel cited authorities where higher sentences like Life Imprisonment were upheld for murder.

Counsel submitted that this court should find the sentence of 45 years' imprisonment neither harsh nor excessive. She urged this court to dismiss

5 the appeal.

### The Decision of Court

We cautiously studied the record and considered the submissions of both counsel together with the authorities cited. We have not restricted ourselves to the authority cited by counsel but have looked further and referred to other authority not cited.

As this is a first appeal, it is our duty as a first appellate court to subject the evidence adduced at the trial to a fresh re-appraisal and to draw our own conclusions of the law and facts of the case, bearing in mind that we

did not have the opportunity to observe the witnesses testify, in assessing their credibility. (See Rule 30 of the Judicature (Court of Appeal Rules) Directions S. I 13-10, Bogere Moses v Uganda [f998] UGSC 22 and Kifarnunte Henry v Uganda [998] 20. 15

We shall bear the above-stated principles in mind as we proceed to determine this appeal. 20

Regarding Cround No. l, thp appellant contended that there was no evidence implicating the appellant in the murder of the deceased. In this case? there was no direct eye account of a person who saw the appellant murder the deceased. The trial court relied entirely on circumstantial evidence. The circumstantial evidence we shall discuss includes the olast W

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seen? doctrine. We, however, find that this matter also relies on the doctrine of 'recent possession.' We shall discuss this further on.

### Cireumstantial Evidence

In Byaruhanga Fodori v Uganda SCCA No. lB of 2002, the Supreme Court spelt out that;

> " . . . where the prosecution case depends solely on circumstantial eaidence) the court must, before deciding on a conuiction., find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than, that of guih."

Similarly, in Amisi Dhatemwa alias Waibi v Uganda, SCCA No. O23 of 1977,, Ssekandi J (as he then was) noted that: 10

"It is true to say that circumstantial eaidence is aery oftrn the best euidence. It is eaidence of surrounding circumstances which, by undersigned coincidence is capable of prouing facts in, issue quite accurately; it is no derogation of eaidence to say that it is circumstantial, See: R a Tailor, Weaer and Donouan. 27 Cr. App. R 20. Houseuer, it is trite law that circumstantial euidence must always be narrowly examined, only because euidence of this kind may be fabricated to cast suspicion on another. It is, therefore, necessary before drawing the inference of the accused guih from circumstantial euidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. ( See: Teper u P. (1952) A. C. 4BO at p 489)."

In the instant case? there are four pieces of circumstantial evidence that were used against the appellant. Firstly, the evidence of prosecution witnesses who last saw the deceased with the appellant. Secondly, the post-25

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mortem report which proved that the deceased had sustained a wound on the back of the head, on back and hands. The evidence of wounding can be ascertained given that the clothes found on the deceased were stained with blood. Thirdly, that the appellant attempted to sell the engine parts of the boat that the appellant and the deceased had taken for fishing to the Chairman of Bugoma landing site. Fourthly, the appellant did not report the death of Lusembo and could not explain what had transpired while on the fishing expedition but instead gave differing versions of the whereabouts of the deceased, a fact that did not render credibility to his evidence.

We re-evaluated the prosecution evidence given at the trial court and, among other things, found that the witnesses lined up gave a coherent account of what happened before and after the fishing expedition. Livingstone Kikonyogo, the manager of Tom Kiviri's business, and the line manager to the deceased, testified that on the 14th of June 2013, at around 4:00p.m, he sent the deceased and the appellant on a fishing expedition. He gave the two l5 litres of fuel expecting them back the following duy between B:00-9:00a.m. However" when they did not return at the expected time, he was surprised to learn from Tom Kiviri that the appellant had been arrested trying to sell parts of the boat. When he eventually inquired from the appellant about the deceased's whereabouts, the appellant informed him that he had left the deceased at Mweza trading centre taking alcohol. Livingstone Kikonyogo added that the deceased's body was later recovered when it was found floating on the showers of the lake. When it was inspected, the deceased had a wound on the head, back and hand. 15 20 25

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Tom Kiviri, the owner of the boat business, testified that on the 15'h of June 2013, he received a call from the Chairman of Bugoma Landing site, one Johnson Bwana. He asked Tom Kiviri whether he had lost an engine.

- 5 When he inquired from Livingstone Kikonyogo, he was told that it had been dispatched for fishing expedition and that it would be brought back soon. He was later on informed by some fishermen that they had seen the fishnets of boat no.13 though they had not seen the boat. The Said Tom Kiviri, confirmed to the Johnson Bwana that the engine in question 'was - his. He requested the Chairman to arrest any person found in possession of the said engine. He testified that he immediately proceeded to Bugoma landing site where he found that the appellant had been arrested while in the process of selling a fuel pipe to his engine at a price as low as IJGX100,000/=. Tom Kiviri inquired from the appellant where the deceased was. The appellant told him that he had left the deceased at ^a 10 15 - place called Kazinga and that the deceased was drunk. The appellant later changed his story and informed the Police that the deceased had drowned. - PWB Johnson Bwana, the Chairman Bugoma landing site, testified that he 20 saw the appellant when he requested him to receive the pipe of an engine as security so that he could advance him 100,0001=. Johnson Bwana was suspicious and in the process, the appellant led him to a boat on which he had loaded the boat engine and a fuel tanker. When he asked the appellant whether the items were his, the appellant replied in the affirmative. He 25 then asked the appellant for documentation of proof of ownership of the

said items. The appellant had none. The engine was initialled TOKI with ^W trLl/\* ^M ¹⁰

a telephone contact. Johnson Bwana called the number. Tom Kiviri picked up and confirmed that the engine was his and had the initials 'TOKI' standing for Tom Kiviri, his name. Tom Kiviri advised the Chairman to arrest the person selling the engine. The appellant was immediately arrested.

PW4 a fisherman at a landing site at Kaazi, testified that on 16trt June 2013, the appellant approached him asking for a lodge to spend the night. He directed him where to find one. He testified that the appellant gave him

- IIGX5000/= to help him carry a boat engine marked Yamaha No. 15 and a fuel tank. He added that the appellant had a boat marked No. 13 which he left at the landing site at Kaazi. 10 - In his sworn statement of defence, the appellant testified that on 14tl' June 15 2013 at around 4:00 pm, he went fishing with the deceased. He stated that around midnight, the lake became turbulent, the waves were high and the boat got filled with water causing the deceased to fall off and drown. His evidence was that he raised an alarm. Another boat answered and came to his aid. They, however, tried in vain, to locate the deceased. It was his 20 evidence that the rescuers from the other boat took him to Kaazi landing site where he found the Chairman and narrated what happened but was arrested by two policemen. He added that the engine was not his and gave the Chairman the number of the owner. They called the owner but that he instead instructed the policemen to arrest him.

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In trying the matter, the learned trial Judge heard both versions of what occurred or might have occurred on the night leading to the morning of 15trt June 2013.

5 The respondents advanced the last seen doctrine to suggest that since the appellant was the last person seen with the deceased, he was most likely the one responsible for his death. It was their view that the norm has held ground and ought to be explored in this matter as did the trial court.

## The Law on the last seen doetrine

In Jagenda John v Uganda CACA I\o. 001 of 2011, this court while commenting on the last seen doctrine noted that; 10

"the last seen doctrine uhich has global application to homicides, our uiew is that, this doctrine creates a rebuttable presumption to the ffict that the person last seen with a deceased person bears full responsibility for his or her death... In the present appeal, the deceased was last seen aliue at the Appellant's bar and the Appellant was present in the premises. He thertforc had a duty to giue an explanation relating as to how the latter met her death."

In this case, Livingstone Kikonyogo testified that on 14'r'June 2013, the deceased was last seen with the appellant on the boat. He never returned. The appellant did not deny the fact that he went out fishing with the deceased that fateful night. This is a proper case for the last seen doctrine to be invoked. However, this Court cannot base on the doctrine alone to uphold a conviction for murder. This is a matter that solely relies on 20 25

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circumstantial evidence. This court must be fully satisfied that the circumstantial evidence is watertight.

The appellant testified that while on the lake, they were hit by a wave and the deceased drowned. The post-mortem report, however, indicated that the deceased's body was found with a large wound on the back of his torso and on the back of the head. We can safely conclude that these findings are inconsistent with the version that the appellant drowned.

10 Our attention has also been drawn to the appellant's evidence where he told PU/l and PW2 that he returned with the deceased but left him at either Mweza or Kazinga in a drunken stupor. We note that he revised this story and, in his defence, testified that a storm hit their boat and that the deceased drowned as a result. It was the evidence of Johnson Bwana that 15 appellant attempted to sell parts of the engine of boat no. 13 when he returned from the fishing expedition. He testified that the appellant tried to sell to him a boat engine, a fuel pipe and tank at a price lower than the market value. fle grew suspicious and called the number on the engine. Tom Kiviri raised a red fl"g leading to the arrest of the appellant.

The above prosecution evidence when considered along with the appellant's defence is that the boat was hit by a wave and the deceased drowned. Notably, the rescuers mentioned by the appellant did not show up to give evidence in his support. In our re-examination of the evidence, 25 we find the conduct of the appellant after the deceased's death not

consistent with that of an innocent man. ^W dLL &, 13

The Doctrine of Recent Possession

oConsidering the application of the doctrine of recent possession in criminal trials in BOGERE MOSES and AI\OTHER v UGANDA, (SCCR APPEAT NO. f OF 1997), the Supreme Court had this to say: -

5 oolt ought to be realized that where evidence of reeent possession of stolen property is proved beyond reasonable doubt, it raises a very strong presumption of participation in the stealing, so that if there is no innocent explanation of the possession, the evidenee is even stronger and more dependable that eyewitness evidence of 10 identifieation in a nocturnal event. This is especially so because invariably the former is independently verifiable, while the later solely depends on the eredihility of the eyewitness."

The explanation given by the appellant as to how he found himself in police custody was neither reasonable, innocent nor convincing.

- 15 The uncontested facts are that the deceased invited the appellant to join ^a fishing expedition. Livingstone Kikonyogo gave them boat no. 13 and 15 litres of fuel. He expected the team to be back the following duy between ^B and 9am. Rather than return with the colleague and the proceeds of the night on the lake, the appellant was arrested under suspicious conduct. On - 20 being asked about the deceased, he gave varying accounts. Before the appellant could explain what had happened to James Lusembo, he attempted to promptly dispose of the engine and parts of it such as the fuel pipe. Bwana Johnson alerted the owner of the boat. - 25 A few days later, the body of the deceased Lusembo washed up the shore. The condition of the body had evidence of wounds on the back of the torso W,fu UE L4


and on the back of the head. His clothes were blood stained which is ^a condition consistent with assault. The doctor's report was that the deceased was wounded and then thrown in the lake whereupon he drowned. The appellant's conduct in concealing what happened to the deceased and

- 5 telling deliberate lies, was hardly consistent with the conduct of ^a traumatised colleague of a fisherman who drowned at midnight on ^a turbulent lake. The appellant was the last person seen with the deceased. This coupled, with the fact that he abandoned the boat and attempted to dispose of a motorboat engine that did not belong to him and made no - effort to account for his dead colleague, leads to the inference that the appellant caused the death of the deceased. We can safely conclude that the learned trial Judge did not err when he convicted the appellant of the offence of Murder c/s lBB and 189 of the PCA. The conviction stands. Ground No. I of the appeal, fails. 10 - L5

In respect of the ground on sentence, it is now settled that for this court, as a first appellate court, to interfere with the sentence imposed by the trial court which exercised its discretion, it must be shown that the sentence is illegal, or founded upon a wrong principle of the law; or where the trial court failed to take into account an important matter or circumstance, or made an error in principle; or imposed a sentence which is harsh and manifestly excessive in the circumstances. (See: Kamya Johnson Wavamuno v Uganda, SCCA No. 016 of 2000 and Kiwalaby" Bernard v Uganda, SCCA No. 143 of 2OOl ).

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We are also alive to the fact that this court is enjoined to take into consideration the issue of consistency while sentencing in cases with similar facts. (See Aharikundira Yustina v Uganda SCCA No. 27 of 2015).

- 5 In Bakuhye Muzamiru & anor v Uganda SCCA No. 056 of 2015, court held that 40+ or 30+ years' imprisonment terms were neither premised on wrong principles of the law nor excessive since the offence of murder attracts a death sentence as the maximum penalty. - In Magezi Gad v Uganda SCCA No 17 of 2014, the appellant was convicted of murder and sentenced to imprisonment for life and his appeal against sentence was dismissed. 10 - In Tusingwire Samuel v Uganda [20f6] UGCA 53, this court found the sentence of life imprisonment imposed against the appellant for the offence of murder harsh and manifestly excessive and reduced the sentence to 30 years' imprisonment. 15

ln Sehuliha siraji v Uganda CACA No 572 of 2005 the appellant \Mas convicted on his own plea of guilty for the offence of murder and this court upheld a sentence of life imprisonment. 20

In Aharikundira Yustina v Uganda (supra) where the Appellant brutally murdered her husband and cut. off his body parts in cold blood, the Supreme Court set aside the death sentence imposed by the trial'Court and substituted it with a sentence of 30 years imprisonment. 25

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In Kisitu Majaidin alias Mpata v Uganda, CACA I{o. O2B Of 2OO7, this Court upheld a sentence of 30 years imprisonment for murder. The Appellant had killed his mother.

In Jagenda John v Uganda CACA No. I of 2011, a sentence of 35 years imprisonment for murder was set aside and replaced with one of 30 years imprisonment, which this court found appropriate.

- We have enumerated above similar cases some of whose facts were despicable than the matter before us. After a careful review of the case law and the facts at hand, we have come to the conclusion that the circumstances under which the appellant committed this horrific murder deserve a severe sentence. The murder was premeditated. However, we agree with counsel for the appellant that the sentence of 45 years was excessive in the given circumstances. The appellant was 27 years at the time and a first offender. As a youthful offender the appellant deserves ^a sentence that will grant him an opportunity to reform. Having found the sentence of 45 years excessive, we hereby set it aside. 10 15 - We have considered that the appellant was a first offender and youthful. In the interest of consistency and in light of earlier decisions as discussed above, we consider a sentence of 30 years' imprisonment appropriate in the clrcumstances. 20

We deduct the period of 3 ybars 2 months and 3 weeks that the appellant spent on remand. Article 23 (B) of the Constitution has been complied with. The appellant is therefore sentenced to 26 years 2 months and I week's 25

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imprisonment. It will run from the 16^th of September 2016 being the date of conviction.

This appeal succeeds in part.

Ground No. 2 succeeds.

Ground No. 1 fails. $\mathsf{S}$

We so order

Dated at Kampala this .................................... .2023.

$10$

**Richard Buteera Deputy Chief Justice** $15$

$20$

**Catherine Bamugemereire Justice of Appeal**

$25$

Eva Kawuma Luswata **Justice of appeal**

19/07/2023<br>Immoredate Progress for orpolary<br>Prove suine but net occudity<br>Iver motiver-167 ECOND 18