[2025] UGCA 243

# ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO. OI16 OF 2OI6 (ARISING FROM MBARARA CRIMINAL SESSION NO. OI75 OF 2OI2)

### MUTAMBI JACKSON : : : : : ::: :: : : : : :: ::: : : : : : : : : : : : : : : : : :: :::: APPELLANT 10

### VERSUS

# UGANDA ::::::::::::::::::::::::3:::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the Judgment of the High court of lJganda sitting at Mbarara, delivered by the Hon. Justice. David Matovu on tgtt' April 2016)

(coRAM: Moses Kazibwe Kawumi, Florence Nakochwa, Cornelia Kakooza Sabiiti JJA) 15

## JUDGMENT OF THE COURT

### Background

The appellant, Mutambi Jackson, was indicted and convictcd of murder contrary to 20 Sections 188 and 189 ofthe Penal Code Act, Cap t20 (now sections 17l and 172 of Cap 128) and sentenced to 35 years and 2 months' imprisonment'

The particulars of the offence were that the Appellant and two others, Katungi christopher and Mugisha Steven alias Kamiragye, on the 1Oth day of June 2006 at Ngomba village in Ntungamo District murdered Tushabe Paddy alias Boss.

### Brief facts

The brief facts of this case, as ascertained from the court rccord, are that the deceased, Tushabe Paddy, was a coffee trader/farmer and he was approached by one Katungi christopher (Al) on 10'h June 2006 with the guise of connecting him to

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- ⁵ purchase large quantities of coffee from farmers in his village. In the process of taking him to visit the purported cof'fee farmers, they said Katungi cut Tushabe with a panga and killed him. The next day, Katungi tried to lure the business partner of the deceased, one Kabiguruka Sezi, in a similar manner and cut him with a panga while they were on the way to buy coffee. However, Sezi managed to escape and raised an alarm, and Katungi went into hiding. A search ensued, and two days later, on 12th June 2006, the body ofTushabe Paddy was discovered in a toilet without his head. In May 2011, the said Katungi was eventually arrested in Kiruhura District and brought back to Ntungamo District. 10 - On arrest, Katungi revealed the involvement of Mutambi Jackson, the Appellant, whom he said had asked hirn for the head of the deceased. The Appellant was arrested, and he stated that one Mugisha Steven (A2) had promised him Shs 1,500,000 for the head but had only paid him Shs 60,000, so he threw away the head in a nearby swamp. Katungi christopher (A1) pleaded guilty to the offence and was convicted and sentenced to eighteen (18) years imprisonment. The Appellant and Mugisha Stephen both pleaded not guilty and underwent a full trial, which resulted in the acquittal of Mugisha Steven (A2) and the conviction and sentencing of the Appellant to 35 years and 2 months' imprisonment' 15 20

#### The Appeal 25

The Appeltant, being aggrieved with both the conviction and sentence of the trial court, appealed to this court on the following grounds:

i. That the learned trial Judge erred in law and fact when he convicted the appellant basing on hearsay evidence and ignored the appellant's defence of alibi, thus causing a miscarriage ofjustice'

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u. The learned trial Judge erred in law and fact when he imposed a harsh and excessive sentence of 35years and 2months imprisonment on the Appellant. 5

### Representation

10 At the hearing of the appeal, counsel Benita Namusisi appeared for the Appellant on state brief. 'Ihe Respondent was represented by counsel Akaasa Amina, Senior State Attomey, holding brief for Simon Peter Semalemba, Assistant DPP, from the Office of the Director of Public Prosecutions.

Before the hearing, counsel for the Appellant orally made an application to validate

15 the Notice of Appeal. The application by the appellant's counsel was not objected to by counsel for the respondent. Accordingly, the court validated the Notice ofAppeal' Both the appellant and counsel for the respondent filed written submissions, which were adopted by the Court as their arguments for the appeal'

#### 20 Duty of the first APPellate Court

We have studied the record of the lower Court, applicable law, and relevant authorities to this appeal and have applied them in the resolution ofthe appeal' This being a first appellate court, it has a duty to re-evaluate the evidence, weighing conflicting evidence, and reach its own conclusion on the evidence, bearing in mind that it did not see and hear the witnesses.

We are consistently guided by the principle established in Kifamunte v Uganda, Supreme Court Criminal Appeal No. l0 of 1997, where the Supreme Coun held that: First appeal, from a conyiction 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

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own decision hereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial iudge. The appellate court must then make up its own mind, not disregarding the iudgment appealed from' but carefully weighing and considering ir. See also Rule 30(l)(a) of the Judicature (Court of Appeal Rules) Directions, SI 13-10. 5

### Ground One

### Appellant's submissions

It was the submission of counsel for the Appellant that the evidence of PW3, PW5' and PWl0, which the learned trial Judge rclied on to convict the appellant, was hearsay evidence which is not admissible under section 59 of the Evidence Act cap 8, and none of the exceptions existed in the current case. That the prosecution failed to produce Katungi Christopher (A1), who had stated that the appellant was his coaccused, to come and give his direct evidence in court, which would have been

subjected to cross-examination for the real truth to come out'

Counsel for the Appellant submitted that the evidence of PW3, PW5, and PWl0 was all hearsay evidence and could not be used to corroborate the other evidence. That the only evidence which coutd corroborate their evidence was that of Katungi Christopher (A1) and no explanation was given by the prosecution on why he was not summoned thus it was elroneous to base on the hearsay evidence to convict the Appellant. counsel prayed that Pw3, Pw5, and PWl0's evidence should not be considered since it was in the reported speech'

On the aspect of the Appellant's alibi, counsel for the Appellant submitted that there was testimony that the appellant was resident in a different village and had come back from Kampala to his village when the crime had already been committed by da 30

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⁵ Katungi and settled at his home in Kinengo where he was found at the time of his arrest. counsel submitted that it was erroneous for the Leamed Trial Judge to deny the appellant's alibi and corroborate other hearsay evidence'

### Respondent's submissions

It was the submission of counsel for the Respondent that the evidence of PW3 and PW5 was that when Katungi (Al ) was arrested, he revealed that he killed the deceased and handed over the head ofthe deceased to the appellant. The evidence ofPW3 and PW5 cannot be held to be hearsay since they testified to the effect that they heard Katungi stating that he gave the head ofthe deceased to the appellant. Their evidence was therefore admissible within the meaning of section 59(b) of the Evidence Act 10 15

and was not therefore hearsaY.

Counsel further submitted that the evidence of PWl0 is admissible under section ²⁹ of the Evidence Act since he testified that when he re-arrested the appellant, he interrogated him and he revealed to him that he had thrown the head ofthe deceased in Nyakigyeyo Swamp. That when the appellant led them to Nyakigyewo swamp, he could not locate exactly where he had thrown the head. He submitted that the Leamed Triat Judge properly convicted the appellant after ably evaluating the evidence before him and therefore properly rejected his alibi' 20

## Court's Consideration of Ground I

It was the appellant's contention that the trial Judge erred in law and fact when he convicted the appellant basing on hearsay evidence and ignored the appellant's defence of alibi, thus causing miscarriage ofjustice. This being a first appeal, we are required to re-appraise all the evidence adduced at the trial and make our own inferences on all issues. See Rule 30 of The Judicature (Court of Appeal Rules) da

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# ⁵ Directions sI l3-10 and Bogere Moses vs Uganda, criminal Appeal No. I of ¹⁹⁹⁷(SC) and Kifamunte Henry vs Uganda (supra)'

In re-appraising the evidence, we are bearing in mind that in a criminal prosecution, the burden to prove each and every one of the ingredients of the charge beyond

reasonable doubt is upon the prosecution throughout the trial. See Woolmington vs DPP 1935 AC 462 and Mushikoma watete alias Peter wakhoka and 3 0thers vs Uganda: Criminal Appeal No. l0 of 200 (SC) [1998-2001 HCB 7' 10

In the instant case, the prosecution, in order to prove a case of murder, had to prove the following ingredients of the offence: -

- a) That Tushabe Paddy alias Boss died. - b) that his death was unlawful. - c) that whoever caused his death did so with malice aforethought' - d) that the Appellant participated in his death. - 20

From the evidence on record, the first ingredient ofthe death ofTushabe Paddy alias Boss was proved by the evidence of PWI Dr. Twesiime Innocent who carried out the post mortem on l3th June,2006 and established the cause ofdeath to be cardio arrest following severe bleeding after dissection ofthe neck and head using a sharp object. The prosecution witnesses, including PW4, PW5, PW6, PW7' PW8, and PWl0, all identified the body of Tushabe Paddy as it was retrieved from the latrine and confirmed that it had no head; thus, this ingredient was proved'

The prosecution had to prove lurther that the death of Tushabe Paddy was unlawfully caused. It is trite law that any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was du 30

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- ⁵ authorized by law. See R vs Gusambizi s/o Wesonga (1948) l5 EACA 65' In the instant case, the evidencc was that Tushabe Paddy had gone to buy coffee with Al, and in the process, he was killed and his body was found in a toilet without a head' This death was certainly unlawful, and this ingredient is proved' - Thirdly, the prosecution was required to prove that the cause of death of Tushabe Paddy was actuated by malice aforethought. Malice aforethought is defined by section 191 of the Penal Code Act as either an intention to cause the death of ^a person or knowledge that the act causing death will probably cause the death of some person. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree ol assault would probably cause death. This may be deduced from circumstantial evidence (see R vs Tubere s/o ochen (1945) I2EACA 63). The evidence of PWI and the post-mortem report, exhibit PI, indicated that the neck and head were dissected off, leaving a big wound, and a very sharp object was used in this process. The person who killed Tushabe Paddy brutally hacked him and thereafter deposited the body in a toilet. There was malice aforethought in the killing ofTushabe Paddy, and this ingredient was proved. 10 15 20

The last ingredient for which there is a bone of contention at this appeal is whether the Appellant participated in the murder of 'tushabe Paddy. 'Ihe evidence on record with regard to the participation of the Appellant in the murder was from the testimony of three prosecution witnesses, Pw3, PW5, and PW10, which we will carefully analyze.

pw3, Kabiguruka Sezi, testified that when he asked Kahrngi (A1) about the head of the deceased, Katungi Al informed him he gave thehead to the appellant, who had That ³⁰ agreed to pay the price of Shs 1,500,000 and paid a deposit of Shs' 60'000'

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⁵ PW3 and other people went and arrested the appellant, but he denied knowledge of the head.

PW5 also testified that it was Katungi who informed him that he gave the head to the appellant, but that upon the appellant's arrest, the appellant denied knowledge ofTushabe's head.

- PWIO testified that he interrogated Katungi, who inlormed him that he gave the head to the appellant, who promised him Shs 1,500,000, and that it is Mugisha Stephen (A2) who wanted that head. That Mugisha admitted to having retumed the head to the appellant after realizing he had mishandled it. 10 - The Appellant denied the testimony of the above three prosecution witnesses. We noted that the Appellant had recorded a charge and caution statement; however, pwl1, who was the officer who had recorded it, made a wrong identification in court of the Appellant, which led the trial Judge to rightly dismiss his evidence as well as the charge and caution statement. The Appellant in his defence denied his involvement in the murder and stated that Katungi Al was his cousin and had no reason to have a grudge against him. However, we noted that the Appellant did not deny that the evidence of PW I 0 that he revealed to him that it was Stephen Mugisha A2 who was the person who had sent him for the deceased's head' 15 20 - we further noted that for reasons not explained on the record, the prosecution did not calI Katungi, Al, to testify since he was the source of the information to the three prosecution witnesses that the Appellant had asked hirn lor the deceased's head. This means that there was no witness who was an accomplice as having participated as ^a principal or accessory in the commission of the offence of murder, which was the subject of the trial. A/ 25 30

a 5 Counsel for the appellant submitted that the lailure of the prosecution to call Katungi AI to testiff as to how and where he handed over the deceased's head to the Appellant meant that the trial court relied on hearsay and that the prosecution failed to prove the participation of the Appellant beyond reasonable doubt'

# Section 59 (b) of the Evidence Act provides that;

10 ,,Oral evidence must be, in all cases, whatever, be direct, that is to say, if it refers to afact which could be heard, it must be the evidence of a witness who sa)ts he or she heard it" (Emphasis added)

In the instant case, it was the evidence of PW3 and PW5 that when Katungi was arrested, he revealed to them that he killed the deceased and handed over the head of the deceased to the appellant. The evidence of PW3 and PW5 cannot be held to be hearsay since they testified to the effect that they heard Katungi stating that he gave the head of the deceased to the appellant. Their evidence was therefore admissible within the meaning of Section 59(b) of the Evidence Act and was not hearsay. we are of the view, however, that the evidence of PW3 and PW5 alone was not sufficient to convict the Appellant and needed corroboration. 15

Where it is necessary to look for corroborating evidence, the Court must look for that independent testimony which affects the accused by connecting or tending to connect the said accused with the crime. Such evidence must implicate the accused by confirming in some material aspect not only the fact that a crime was committed, but also that it is the accused who committed it. The corroboration may be direct evidence that the accused committed the crime. It can also be circumstantial, connecting the accused to the crime. See Salongo Senoga Ssentumbwe vs Uganda' 25

(Criminal Appeal No. 102 of 2009) 2013 UGCA 31. OUJ 30

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- ⁵ In the instant case, the testimony of PW3 and PW5 was corroborated by the evidence olpw10, the Investigating officer, who testified that the Appellant took the police to the Nyakigyewo swamp, where he had stated that he had thrown the deceased's head, but it could not be traced. This search exercise at Nyakigyewo swamp was not denied by the Appellant, who only claimed that he had been toftured by the police. - We are of the view that the conduct of the Appellant in leading the Police to the swamp and searching around for where he had thrown the head ofTushabe Paddy is the conduct of a guilty person and amounts to direct evidence that implicates him in the crime of murder. The only inference from this evidence is that the Appellant had received and later thrown away the head of Tushabe Paddy, which meant that he was 10 - complicit in his murder. 15

We have weighed the evidence of the prosecution witnesses who were told by AI that the Appellant had asked for the deceased's head, and we find that it points to ^a common intention to commit murder as between the Appellant and A1, who already pleaded guilty and was convicted.

The law relating to the doctrine of common intention is set out in Section 20 of the Penal Code Act, Cap 128, as follows: 20

> " Il'hen 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 offence is committed of such a nalure that its commis.sion was a probable consequence of the prosecution of thal purpose, each ofthem is deemed to have committed the offence "

It is immaterial that the appellant was not the one who actually hacked the deceased to death with a panga. The evidence on record is that the Appellant was part of the plan to get the head of the deceased, which he was aware would involve the brutal death of Tushabe PaddY. C/

- ⁵ With regard to the alibi claimed by the Appellant, the prosecution witnesses did not testifi that the Appellant was at the scene ofthe murder ofthe deceased. They only testified that A1 told them that he gave the head to the Appellant' The claim by the Appellant that he was working in Kampala and had only retumed to his village after two years does not in any way negate the credible testimony from the prosecution witnesses that A I informed them that the Appellant had asked him for the deceased's 10

head.

We find no reason to fault the decision of the trial Judge's finding that the prosecution proved the case against the appellant on the offence of murder beyond reasonable doubt. The appellants' conviction is hereby uphetd. Ground one of appeal is hereby dismissed.

#### Ground TWo

### The Appellant's submissions

Counsel for the Appellant submitted that the trial Judge overlooked and ignored the appellant's mitigating factors of family status, request for lenience, and his level of participation in the crime. It was submitted that the appellant is now a good person and ready to be reintegrated back to his community. Counsel further submined that while the trial Judge rightly took into account the appellant's remand period, it was never deducted from the awarded sentence of35 years and 2 months as required under Guideline No. 15(2) of the sentencing Guidelines and Article 23(8) of the Constitution. Counsel prayed that the sentence ofthe appellant be reduced to a more lenient one. 20

#### The Respondent's submissions

Counsel for the Respondent submitted that the leamed trial Judge took into account 30

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⁵ the mitigating factors in favour of the appellant and also took into account the seriousness of the offence ol murder, which carries amaximum sentence of death, before he imposed the appropriate sentence of 35 years and 2 months. That the Constitution (Sentencing guidelines for courts of judicature) Practice Direction, 2013 provides for the starting point in sentencing of murder as 35years and the maximum as death. It was submitted that the sentence passed against the appellant was neither harsh nor excessive in the circumstances. 10

## Court's Consideration of Ground 2

- The trial court sentenced the appellant to 35 years and two months in prison. The appellant appealed this sentence on grounds that it was harsh and excessive. We are alive to the fact that we cannot interfere with the sentence imposed by a trial Court unless the exercise of the discretion is such that it results in a sentence that is found to be manifestly excessive or so low as to amount to a miscarriage of justice, or where a trial court omitted to consider an important matter or circumstances which ought to have been considered when passing the sentence, or where the sentence imposed is wrong in principle. See: Livingstone Kakooza vs. Uganda Supreme court criminal Appeal No. 17 of 1993 and Kyalimpa Edward vs. Uganda Criminal Appeal No. l0 of I995. 15 20 - In the Supreme Court decision of Kiwalabye Bernard vs. Uganda, Criminal Appeal No. 143 of 2001, the Court emphasized that: ''The appellate court is not to interfere with the sentence imposed by a trial Court 25

which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage ofiustice or where a trial court ignores to consider an il) ³⁰

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⁵ important matter or circumstances which ought to be considered while passing the sentence or the sentence imposed is wrong in principle. "

We have had an opportunity to peruse the sentencing notes of the leamed trial Judge, who stated as follows:

"lt is true the convict is a first offender, but in this case, Tushabe Paddy was killed in a very brutal way, and his head has never been seen to date. This is ^a very serious case where I should have sentenced the convict to forty (40) years imprisonment, but after deducting thefour (4) years and ten (10) Months he has been on remand. I hereby sentence him to serve a Prison Term of Thirty-Five (35) years and two (2) months.

In our view, the learned trial Judge considered all relevanl mitigating and aggravating lactors as he was passing sentence. The learned trial Judgc also had due regard to the period the Appctlant spent on remand as required under Article 23 (8)

of the Constitution of the Republic of Uganda, 1995. 20

Right of Appeal explained"

Be that as it may, it is noted, however, that the one point that the trial judge did not consider was the principle of consistency before arriving at the decision to impose the imprisonment term of 35 years and two months upon the Appellant. We are also alive to the decision in Ogalo s/o Owoura vs R (1954)24 EACA 270,wherethe Court added another principle of consistency in terms of equality before the law so that offences committed under similar circumstances with silnilar degree of gravity should attract the same ratlge of sentences therefore precedents of the appellate courts are a relevant guiding factor. ³⁰ dl

- 5 It is a good practice for the courl to always set out in the Sentencing Ruling the decided cases which have guided it in arriving at the sentence in a particular matter' However, failure to cite decided cases does not automatically lead to a nullification of the sentence by the Appellate Court unless it has resulted in a gross miscarriage ofjustice. - 10

We have considered the following similar cases, which passed sentence for murder; 1'he Supr.erne Court in the case of Aharikundira Yusitina vs Uganda, Supreme court Criminal Appeal No. 27 of 2015; I20l8l UGSC 491 set aside the death sentence imposed by the trial Court and substituted it with the sentence ol30 years'

imprisonment for the appellant who brutally murdered her husband' Further in the Supreme Court case of Rwabugande vs Uganda' Criminal Appeal sccA No. 25 of 2014 I20l7l UGSC 8, this court had upheld the sentence of ³⁵ years irnposed by the trial Judge, but on appeal to the Supreme Court, the sentence was reduced to 2lyears imprisonment' 15

We have analyzed the aforementioned authorities and the circumstances of this case, whcre the Appellant's co-accused, who had pleaded guilty of murdcring the deceased, was sentenced to l8 years imprisonment, and this fact was cited by the rrial Judge at the beginning of his judgment. In the instant case, the trial judge sentenced the appellart to 35 years and two months fbr the offence of murder.

In the case of Salongo senoga Ssentumbwe vs Uganda (supra), an Appellant appealed against the harshness ofthe sentence ofthe triat court. This Court found no reason to disturb the 16-year sentence imposed by the trial Judge upon the appellant since the prosecution witness who pleaded guilty to the charge had also been

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sentenced to 16 years imprisonment. $\mathsf{S}$

> In the instant case, we have considered the facts of the case relating to the sentence imposed on the Appellant's co-accused, and in the interest of consistency, we are of the view that the sentence of 35 years and two months in this case should not stand. As observed by the Supreme Court in the case of Aharikundira Yusitina vs

Uganda (supra), "Consistency is a vital principle of a sentencing regime. It is deeply 10 rooted in the rule of law and requires that laws be applied with equality and without *unjustifiable differentiation.*"

Accordingly, the Appeal is partially allowed. The conviction is upheld, and the sentence of 35 years and two months is hereby set aside under section 11 of the 15 Judicature Act and substituted with a sentence of 25 years' imprisonment from which we deduct the 4 years, 10 months he spent on remand. The appellant will accordingly serve 20 years, 2 months to run from the 19^th day of April 2016, when he was convicted at the High Court.

It is so ordered. 20

Signed, delivered, and dated at Kampala this ....................................

**Moses Kazibwe Kawumi Justice of Appeal**

> **Florence Nakachwa Justice of Appeal**

$\ldots \ldots \ldots$

Cornelia Kakooza Sabiiti **Justice of Appeal**

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