[2024] UGCA 205

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

## CRIMINAL APPEAL NO. 0226 OF 2021

(Arising out of the Judgment and orders of Her Lordship Anna B. Mugenyi at *Kabale in HCT-11-CR-CO-014-2016*)

## NAGUMAHO DICKSON ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**UGANDA :::::::::::::::::::::::::::::::::::**

## CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA HON. JUSTICE OSCAR KIHIKA, JA

#### **JUDGMENT OF COURT**

The Appellant was indicted and convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to 40 years' imprisonment. The Appellant being dissatisfied with the decision of the trial court filed this appeal on the following grounds

- 1. The learned trial Judge erred in law and fact when she held that prosecution had proved the ingredient of malice aforethought beyond reasonable doubt convicting the appellant of wrong offence of murder. - 2. The learned trial Judge erred in law and fact when she sentenced the appellant to a sentence of 40 years' imprisonment

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that was harsh, excessive in the circumstances and illegal for not deducting time spent on remand by the appellant.

## **Background**

On 11/9/2016, at Nyakabande, Cell Kyanamira, Kabale District, the parents to the Appellant were from a party when they found their son with stolen iron sheets and was making away with them. The parents made an alarm which attracted many people including the deceased, one Karuhize John, an uncle to the Appellant. The deceased and the others that had gathered run after the deceased and intercepted him. The Appellant placed the iron sheets down and threatened to hurt those chasing him including his parents and the deceased forcing them to make a u turn and run for their lives. The deceased, being an old man, was unable to run very fast and was caught by the Appellant who boxed, kicked and pushed him over a ridge causing him to fall on big stones and breaking his neck in the process. The deceased was rushed to hospital but he died four days later. The Appellant was arrested, indicted and convicted of murder and sentenced to 40 years' imprisonment.

## **Representation**

At the hearing of the appeal, Mr. Atugabirwe Alpine appeared for the Appellant while Mr. Nahurira Jacob, State Attorney appeared for the Respondent. Both parties filed written submissions which were adopted as their legal arguments.

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# Appellants submissions

Counsel submitted that the act of pushing the deceased off the ridge was an unlawful act that occurred during the scuffle when the appellant was chasing away the people who were running a-fter him and as such, there was no ma-lice aforethought. Counsel relied on the decision in NanyonJo Harriet and Senyonjo Kato Peter Vs Uganda, S. C. C. A No. 24 of 2OO2, in which the appellants beat the child and forced his head on the floor hence causing death of the child. The Supreme Court set aside the conviction of the appellants for murder and substituted it with manslaughter.

Counsel argued that the learned trial Judge did not consider the mitigating factors of the case in passing the sentence of 40 years' imprisonment, which was harsh and excessive especially considering the fact that there was no malice aforethought. Counsel argued further that the period spent on remand was not deducted by the learned trial Judge while sentencing the Appellant. Counsel contended that the trial Judge simply considered the period spent on remand but the sarne was not deducted from the sentence passed by the court. Counsel prayed that this court exercises its duty to resentence the Appellant and impose an appropriate sentence in the circumstance of the case.

# Respondents submissions

In reply, Counsel submitted that court most often deduces the intention of an accused person from the circumstances surrounding the killing, including the weapon used and the part of the body

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assaulted. From the evidence on record, it is clear that the Appellant was well aware of existence of a ridge with big stones below it and yet kept kicking and boxing the old man until he fell off the ridge. Counsel submitted that the medical examination report indicated that the deceased sustained injuries from a fall from height which caused multiple abrasions and this was evidence of malice aforethought.

With regard to ground 2, counsel submitted that the Appellant killed his father's brother in such a gruesome manner and that the 40 year sentenced passed by the trial court was appropriate in the circumstances of the case. Counsel submitted that according to the trial Judge's sentencing order, the period spent on remand was considered.

# Consideration of the Appeal

This being a first appea-l, it should be recalled that the duty of a first appellate court is to re-eva-luate the evidence, weigh conflicting evidence and reach its own conclusion on the evidence, bearing in mind that it did not see the witnesses testify. (See Pandya v R [195fl EA p.336 and Kifamunte v Uganda Supreme Court Criminal Appeal No. 1O of L997 and COA Criminal Appeal No. 39 of 1996. In the latter case, the Supreme Court held that;

"We agree that on a first appea| from a conuiction by a Judge the Appellant is entitled to haue the appellate Court's otun consideration and uiews of the euidence as a uthole and its oun decision thereon. The first appellate court has a dutg to reuiew the euidence of th.e case

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and to reconsider the mateials before the tial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefullg weighing and considering it."

We have kept these principles in mind in resolving this appeal.

# Ground ¹

The Appellant faults the learned trial Judge for having convicted him of murder in the absence of malice aforethought.

For the prosecution to sustain a conviction against an accused person for the offence of murder, a number of ingredients have to be proved to wit; that there was death of a human being, the death was caused unlawfully, there was a malice forethought and that the accused persons directly or indirectly participated in the commission of the alleged offence. In this case, it is not disputed that there was death of a human being and that it was unlawfully caused. What is disputed by the Appellant is whether there the element of ma-lice aforethought was proved by the prosecution.

The issue for this court to consider is whether there was sufficient evidence that proved beyond reasonable doubt that the deceased was killed with malice aforethought within the meaning of the Pena-l Code. The Supreme Court in the case of Nanyonjo Harriet and Senyonjo Kato Peter vs Uganda, Criminal Appeal No.24 of 2OO4 had this to say;

"In cases of homicide, the intention and/ or knouledge of the accused person at the time of committing the offence is rarelg proued bg direct

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euidence. More ofi.en than not the court finds it necessary to deduce the intention or knowledge from the ciranmstances surrounding the killing, including the mode of killing, the weaponused, and the part of the bodg assailed and injured."

In the present case, the learned trial Judge relied on the medical evidence of the injuries sustained by the deceased. According to the medical report, Police Form 48 B, the deceased's injury was typical of a fa-ll from height an extended rock/ridge producing h5ryer-rotation or extension and fracture of the spine. Multiple abrasions were seen on the forehead, chest and abdomen. The learned trial Judge found that the nature of injury described in PF 48 C and the likely cause all point to the fact that whoever caused the death of the deceased did it with malice aforethought.

For a court to infer that an accused killed with malice aforethought, it must consider if the death was a natura-l consequence of the act that caused the death and if the accused foresaw death as a natural consequence of the act. In the instant case, the evidence of PW3r and Ayebare Allen, PW4 was that they knew the accused person very well because he was their village mate and a relative of PW4. They both testified that they were able to identify him using moonlight on the fateful night when he chased his parents and the deceased, who was running behind them, caught up with him, boxed and kicked him and pushed him off the cliff where he was found by the witnesses and other residents who arrived at the scene of crime.

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¹The Proceedings of the HiBh Court do not indicate the name of PW3

Taking all that into consideration, we find that the death of the deceased was a natural consequence of the assault and pushing of the deceased off the ridge by the Appellant who could have foreseen that death was a natural consequence of his actions. In the result, we find that the killing of the deceased was unlawful and with ma-lice aforethought.

Ground one of the appeal therefore fails.

# Ground 2

Ground 2 faults the learned trial Judge for having sentenced the appellant to 40 years without arithmetic deduction of the period spent on remand.

For this Court, as a first appellate court, to interfere with the sentence of a trial Court, it must be shown that any one or more of the factors below exist: the sentence is illegal, the sentence is harsh or manifestly excessive, there has been failure to exercise discretion, there was failure to take into account a materia-l factor and arr error in principle was made.

See: Rwabugande Moses Vs Uganda, Supreme Court Criminal Appeal No. 25 of 2OL4; Kyalimpa Edward Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1995; Kamya Johnson Wavamuno Vs Uganda, Supreme Court Criminal Appeal No. 16 of 2OOO; and Kiwalabye Bernad Vs Uganda, Supreme Court Criminal Appeal No. 143 of2OO1.

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Further, the court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See: Ogalo S/O Owoura Vs Republic [1954] 24 EA CA 270.

The sentencing order of the trial court is as follows;

## "Court:

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The offence committed by convict was done in such a gruesome way for an uncle who he should have protected but instead he chose to end his life. Convict was not remorseful during trial and doesn't seem to understand the depth of offence charged with.

Offence is rampant and must be curtailed. I hand down a sentence of 40 years as a way for those who intend to do such crimes not to do so and to enable convict reform.

# Remand time to be deducted."

From the above excerpts, it appears to us the learned trial Judge did not deduct the period spent on remand as required by Article 23 $(8)$ of the Constitution.

# **Re-sentencing**

**Section 11** of the **Judicature Act** vests this court with the same powers as the trial Court in the following terms:

"11. Court of Appeal to have powers of the court of original jurisdiction.

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For the purpose of hearing and determining an appea[ tLLe Court of Appeal shall haue all the powers, authoitg and juisdiction uested under any tuitten latu in the court from the exercise ofthe original juisdiction of uhich the appeal originallg emanated."

In the exercise of the above mandate, we shall proceed to sentence the Appellant accordingly.

In mitigation, we note that the Appellant was a first offender and was of youthful age, 25 years, at the time the offence was committed. He had no previous criminal record and had spent 3 years and 9 months on pre-trial remand. We also note that the offence of murder is a serious offence that requires a deterrent sentence. The Appellant kicked and pushed his uncle off the ridge causing his death.

In the circumstances, we are satisfied that a sentence of 30 years' imprisonment from the date of conviction will meet the ends ofjustice in this case. We subtract the 3 years and 9 months spent on remand and order that the Appellant shall serve a sentence of 26 years and 3 months from the date of conviction, which was O8/6/2021..

We so order.

Delivered and dated this 2024. +,- day of

RICHARD BUTEERA Deputy Chief Justice

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Awn

$\ddot{\phantom{0}}$ CHRISTOPHER GASHIRABAKE

**Justice of Appeal**

. . . . . .

OSCAR JOHN KIHIKA Justice of Appeal