[1992] UGSC 32

# THE REPUBLIC, OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT. MENGO

# CRIMINAL APPEAL NO. 25/91

(CORAM: WAMBUZI C. J., ODER J.. ^S . C., PLATT J.. S. C)

P. O. WILLY ODONG- 'appellant

# AND

UGANDA RESPONDENT

(Appeal against conviction and sentence of the High Court decision holden at Kampala (Hon. Mrs. Justice C. K. Mrs Byamugisha)dated the 1Jth. August 1991 from original H. C. CR Case'101/91)

#### JUDGMENT OF THE COURT'

He appeals . also presented. The Appellant was convicted of manslaughter c/s 182 of the Penal Code Act, and sentenced to 10 years imprisonment. against conviction, and having obtained *,*leave to appeal against sentence, the latter appeal was

Police Post. Armed with ^a rifle, he went It was now 8.00 p.m. Radio had been found at a Radio Repairer's shop , and it was to that . shop that the Appellant and his party returned. They were told that the radio had been brought by a man called Salongo. When the Appellant The Appellant, a police Constable, had been attached to Mpererwe On 29th June 1990, he was detailed to go and investigate to the place concerned escorted by the complainant, Kibuye (PW5) Zedekiya Mukasa (PW2) and Matiya Senkuzi (PW6). a report of an alleged theft of a radio. when the Appellant began to make investigations and gather information. It appears that before the police report, the loud speakers of the

to have gone away. They went to that persons' house. The Appellant and his It seems that as Kabuga worked with Salongo, it was in his evidence, while, the detention'of Kabuga, in an attempt to find Salongo, was witnessed by the complainant and his friends. • The make a statement. The Kabuga and killed him. there, and she gave the appellant the radio. party then went back to Salongo's shop, and there they found a person called Kabuga told to go to the Police Station to After a few paces Kabuga started to run away. Appellant chased him and fired two bullets; unfortunately they struck complainant\* said that Kabuga was In the presence pi A small boy Stanley Ewata (PV/4) ,was taken to the place where **Salongo** worked he, Salongo was found of Salongo\*s .wif? Salongo's place either hoped that Kabuga was in fact Salongo, although Kabuga is said to have denied that; or that. Kabuga knew where Salongo was, So the Appellant decided that Kabuga would be detained until Salongo returned. The dispute over Kabugafs identification was revealed by Stanley Ewata was searched, but nothing was found. informed the Appellant that the radio was at the house of one Nalongo. Nalongo was absent but his wife was

*2*

On the other hand, the Appellant related in his defence the facts relied on by the prosecution up to the point where the radio was found in the house of Nalongo. When it was said that the radio was brought to Nalango s house by Salongo, the Appellant and his party returned to the.market and found Kabuga attending to his customers.

. • 7?

one of the suspects. Kibuye identified Kabuga as one of the suspects. The Appellant asked £he man his. name but he refused to give it. The Appellant arrested him and told him the reason for.this arrest.

to have Kabuga. The . Judge suspect arrested. She expressed herself now the'Appellant, even escaping. because he On this conflict of evidence, the learned Judge appears accepted the Appellant's,explanation as to why he arrested the deceased observed that the radio was recovered and the as satisfied that the Accused, was carrying, out his duty as a. Police. Officer• But then having done, so he used exece.ssive force to prevent the ,suspe(fi?t from escaping. Altogether the Appellant having arrested an unarmed suspect, who did not'threaten him in any way having not-arised an alarm, the Appellant was not 'justif ed in shooting at the deceased, " I. if the appellant was attempting to prevent the deceased from Consquently, the App®Han^ was found guilty of manslaughter had not intended to kill the suspect Kabuga.

J

#### ■somewhat

• ••A

•1

I • 1

^I The first ground of appeal y argued. wasZ&fc&X&P^confusing and not. seriousl-But in any case we are satisfied that the learned Judge was quite right on her view.of the evidence, in convicting the Appellant of manslaughterrather than murder

> case. was arg&Mltf m. at night when it was was a first offender aged 27 years, had at about 9.00 p. The secound ground-cf appeal related to sentence. It that it was manifestly severe in the circumstances of the suggested that the Appellant who been carrying out his duties, difficult to see. It was

### it is said.

Moveover, the learned the Judge found Appellant.'-used ^a gun which resulted in the loss of human life. But it is clear that what she meant was, that the personal details of the appellant (that he first offender of 27 years of age, who had been in remand for over a year) were facts which fell in his favour; . yet at the time of the incident there had been .provoking circumstances which required the used of a gun. Indeed the Judge found that there were no that there were no mitigating factors Police Officers carry guns.' account the mitigating factors. mitigating factors. Indded At present^/ all Judge.did not sufficiently\* take into was a no compelling or as to why the

supported. On behalf of the State, the conviction and sentence was

that in this case the Appellant was arresting who might also know the whereabouts of Salongo, who was the prime suspect. Kabuga, however, attempted to escape, The use of force should always ^I be a matter of last resort. As the learned Judge pointed out, there were other ways of compelling the suspect's attendance at the police station .for recording a statement. understood as failing to understand ihe difficulties faced by the Police, when they are investigating reports of crime. It is important to say a reported suspeat, We have' been at pains to set out the Circumstances in' this case,, and the view expressed upon it because we would not like to be mis -

The Appellant could have raised the alarm, and indeed he could have left the chase for the right , and continued the next day.

It is said that it is difficult to see when you are firing at night, and while that factor certainly aided in showing that the Appellant had no intent to murder the suspect, it is nevertheless clear that great care must be taken when using a gun at night.

We are satisfied, therefore, that the learned Judge was justified in concluding that this was a case of execessive use of force, and in order to underscore the principle that the use of force must be a matter of last resort in really compelling circumstances, we reached the conclusion that the sentence ought to stand. It is a severe sentence, but it is not manifestly harsh, and we hope that it will have the desire effect.

Consequently the appeal is dismissed.

Delivered at Mengo this. 1992 ....... day of

(Signed)

#### WAMBUZI CHIEF JUSTICE

$\mathbf{PLATT}$

**ODER** JUSTICE OF THE SUPREME COURT

JUSTICE OF THE SURREME COURT I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

**B. F. B. BABIGUMIRA** REGISTRAR SUPREME COURT