[1993] UGSC 58

### ™E REPUBLIC- OF UGANDA '

## IN THE. SUPREME COURT OF UGANDA^

'

#### AT KIENGO

ODER - JSC Pb-iTT - JSC) (CORAM: M.-. NYINDO — DCJ, vuun, — uou,?

(

## CRIMINAL APPEAL NO. 31/93-

# BET ^W ^E ^E ^N

NDAHURA GEORGE ; :: : APPELLANT UGANDA RESPONDENT

> of (Appeal against, conviction & sentence the H/C decision holden at Mbarara (Hon,. Mr. Justice Soluade) dated the 21st. day of October, 1991? from original H<C. Cr. Ss. Case NO.220/91)

#### JUDGMENT OF THE COURT:

convicted of the murder of by thu High Court# Ho now appeals against, the although no sentence was passed on him, uncle, Erifasi, The appellant was on 21-10-91? conviction and sentence,

The facts as found by the trial Judge *?* were that. on. 25-3-79? at about, 10\*30 a.m, the deceased and his two. wives *⁷* Kyobutungi. PW2 and Baturaime (PJ3) were in. thoir garden*⁷* planting banana stems. The garden was near their home. The appellant and his younger brother,. Kanyangeya, went, to the deceased's garden, and began to uproot, the deceased's banana stems. The appellantarmed with, a sickle. When the deceased asked the appellant, why he had uprooted the banana stems, the appellant cut. him twice with the sickle on the neck almost, severing, it. The deceaaed died almost, instantly.

The assault, was witnessed by PW2 who immediately raised an. alarm. a meal. scene of crime. scene a little later. PV/6 went and reported the incident to. the authorities. FW3 was not, in the garden, as she had gone home to prepare Mumba (tJW4) and The alarm was promptly answered by PW3? Mbangfrinoha (PW5) who met, the appellant, running away from the Kyamutugu (,W6) and many others arrived at the

He was a brother of the deceased, He was allowed to burry the deceased immediately as no further steps could be taken in the matter due to the state of insecurity in the area at the time. The war of Liberation was afoot. In the event there was no medical evidence as to the cause of death. The trial Judge found as a fact that the deceased died of the injuries to the neck.

That finding has not been challenged. Clearly the evidence justified it.

The defence was one of alibi; the appellant claimed that he was at Gayaza, near Kampala, at the material time, He had left his home Town of Bushenyi in Western Uganda in 1978 and gone to Gayaza where he stayed until 1980, when he went back home. He stayed there until 1990 when he was arrested in connection with a land dispute with certain persons. It was then that the relatives of the deceased (PW2, PW3 and PW6) came up with the murder allegation.

We are satisfied that the evidence of PW2, PW3, PW4 and PW5 clearly proved that the deceased died at the hands of the appellant. His alibi raised no doubt in that evidence.

It was false and was rightly rejected as such by the trial Judge. However, it would have been useful if the prosecution had led evidence of the first report, if any, made by the witnesses to the authorities regarding the suspects in the case. Be that as it may, there was ample evidence to warrant the conviction. The general defences which would have reduced the offence to manslaughter $w = c$ considered and rightly ruled out by the trial Judge. We therefore dismiss the appeal against the conviction.

The grounds of appeal against sentence were couched in unclear terms. They state as follows:-

> " $1.$ " That the learned trial Judge erred to convict the appellant without<br>ascertaining the age of the appellant

$\mathfrak{F}$

$2.$ The learned trial Judge arred to hold that the appellant was a<br>'man in his mid-thirties' when there was no evidence to support. such a finding".

$\smile$

$kL = L$

At the heaning of the appeal Counsel for the appellant explained the grounds. The complaint was that the appellant could not be sentenced to death as the available evidence showed that he was under the statutory age of 18 years when he committed the offence. The prosecution led no cvidence as to the age of the appellant. As this Court has pointed out on several accasions, this is a seriou ommission. The appellant stated in his defence that at the time of trial he was about 28 years old. This would put his age in March, 1979, at about 17 years at most.

In his judgment the trial Judge had stated that from his own observation of the appellant, the latter was in his mid-thirties.

We do not think that a trial Judge is free to determine the age of an accused person simply by observing him in the dock. If the trial Judge was certain about the age of the appellant we wonder why he did not pronounce the mandatory death sentence after convicting, him.

In our view in absence of evidence to the contrary. the claim of the appellant as to his age should have been accepted, with the result that the Court should have been accepted, with the result that the Court should have made an Order under Section 104 (1) of the Trial on Indictment Decree for the detention of the appellant pending the order of the Minister of Justice. The Senior State Attorney who represented the DPP in the appeal 🦤 was of the same view.

In the result it is ordered that the appellant be detained at Upper Prison Luzina pending the Order of the Minister under Section $104$ (2) of the Trial on Indictments Decree.

DATED at Mengp this 5th. day of May, 1993\*

SIGNED:

S. T\* MANYIND0 DEPUTY CHIEF JUSTICE

^A . JI.0. ODER. JUSTICE OF THE SUPREME COURT

^h:.g. PLATT JUSTICE OF THE SUPREME COURT

L CERTIFY THAT THIS. IS a TRUE COPY OF THE ORIGINAL

B. F. B/'BaBIGUMIRA REGISTRAR.

t