[2023] UGCA 29

### ⁵ THE REPUBLIC OF'UGANDA

# IN THE COURT OF APPEAL OF UGANDA HELD AT JINJA

(Coram: Eliz,abeth Musoke, Baishaki Cheborion and Hellen Obura' JJA)

## CRIMINAL APPEAL NO. O81 OF 2016

## ODYAMBO JTIVENTINE::::::3:::::::r:::::::::::::::::::::::::::::::::::r::::: APPELLANT

#### VERSUS

UGANDA :::::::::::::::::::::::::::3:::::::::::::::::::::t:::::::::::::::::::::::: RESPONDENT

[Appeal from tLe decision of the High Court of Uganda sitting at Soroti (Hon. Ladg Jrtstice H. Wolago) doted 26th April 2016 in Ciminal Session Case No. 1s/201sl

### JUDGMENT OF THE COURT

### Bsskground

It was alleged by the prosecution that the appellant and others stil1 at large on the 15s day of May, 2012 at Kamurejei viilage, in Otuboi sub county, Kaberamaido District with Malice aforethought murdered Elesu Richard, Akwi Martha and Apio Josephine. To prove its case, prosecution presented five witnesses and relied on post mortem reports PF48 marked as PEX1 & 2, medical certificates marked PEx3 and Pf 24 rnarked PEx4. The appellant pleaded not guilty to all the 3 counts of murder and raised the defence of alibi that at the time of the alleged incident he was asleep at his home. He gave unsworn evidence and never called any witnesses. The learned trial judge convicted him on all the 3 counts of murder and sentenced him to three 20 25

⁵ concurrent sentences of 4O years imprisonme nt. After taking into account the years he had spent on remand, the sentence was reduced to 36 ycars.

Being dissatisfied with both the conviction and sentence the appellant filed this appeal on the following grounds;

- 7, The learned trial judge erred in lana and fact when she reached a conclusion that the death of Elesu Richard, Akuti Martha and Apio Josephine uas caused unlaufullg, uith malice afore thought prosecution hauing failed to proae the cause of Jire. - 2. The learned trial judge erred in laut and Jact uhen she held that there raas correct identification oJ the appellant basing on the evidence oJ PW1, PW3 and PW4 uhich evidence is oery inconsistent and najorlg contradictory. - 3. The learned trial judge erred in la ut and Jact uhen she distnissed the appellants' deJence of alibi get the prosecution did not destrog it ang uag bg uag of evidence of inaestigation. - 4. The learned trial judge erred in law and Jact uthen she failed to properlg eualuate the evidence on record thus reaching dn erroneotts decision that the appellant participated in unlaufallg cousing the d.eath of Elesu Richard, Akui Martha and Aplo Josephine. 20 - 5. That the sentence against the appellant utas harsh and excessiue the learned trial judge having failed to accord the appellate an opportunity to present his antecedents in mitigating the sentence-25

5 At the hearing, Ms Amojong Kevin represented the appellant on State brief while Ms Nyanzi Macrina, Asst. Director of Public Prosecutions (DPP), represented the respondent.

Due to the COVID-19 Pandemic restrictions, the appellant was not in court physically but attended the proceedings via video link to Prison. Both parties sought, and were granted, leave to proceed by way of written submissions.

## Appellant's submissions.

On ground one, it was submitted for the appellant that although prosecution had proved that indeed Elesu Richard, Akwi Martha and Apio Josephine died, it failed to prove that their respective deaths were caused unlawfully with malice afore thought. That there was no conclusive evidence to rule out the fact that the fire could have been ignited accidentally. According to appellant's Counsel, PWS Dectective Sgt Oboth Alfred never told court what the cause of the fire was when asked during his examination in chief and yet no further investigations of the scene were carried out to rule out any inference of accidental fire. Counsel submitted that the investigation officer's testimony that he was told by a girl who he didn't specify that she saw the accused setting the house ablaze. To Counsel, this was misleading as no prosecution witness told court that they saw the person setting the fire not even PW3 Abago Betty who claimed to have woken up first. Counsel contended that the investigation officer did not secure the scene of crime and only went there at l:OOam in the night. He never went back. That no inquiries were made on 15 20 25

⁵ what kind of light was being used in the hut or if there had been any charcoal stove inside.

Counsel for the appellant further submitted that PW3 Abago Betty in her testimony never stated that she saw the appellant setting the hut on fire. If the fire started outside and she woke up immediately then, by the time it

10 15 descended inside, the occupants would have evacuated with minimal injuries. According to Counsel, the grave injuries which the deceased sustained show that the fire started from inside not outside and the allegation that the appellant wanted his child from Apio Josephine which child was also being claimed by another man was unbelievable and contradictory since no investigation and evidence was led in that regard.

20 On grounds 2 and 4, Counsel for the appellant submitted that the learned trial judge did not adequately warn herself of the special need for caution in dealing with the evidence of PWl Epaingu, PW3 Abago Betty and PW4 Akeso Agnes. That the learned trial judge failed to weigh the alleged factors favouring correct identification as against those which made correct identification difficult. That the evidence of PW1 Epaingu Joseph, PW3 Abago Betty and PW4 Akeso Agnes which the trial Judge based on to reach a conclusion that the appeilant was properiy identilied was marred with deliberate lies and was very inconsistent, contradictory and ought to have been rejected. Counsel asked Court to follow the decision in Ruhweza vs Uganda, Supreme Court Ctim Appeal No.7 of 2OO1. 25

- ⁵ Counsel for the appellant further argued that the prosecution did not lead any direct evidence to prove that the appellant set the fire which caused the death of the 3 deceased. That even the circumstantial evidence was contradictory and the exculpatory facts were compatible with the innocence of the appellant. He referred court to Simon Musoke vs R EA [f958] 715. - On ground 3, it was submitted for the appellant that he was at his home when the house was set on fire and this alibi was never disapproved. Counsel contended that PW3's evidence was very contradictory and inconsistent in all material facts and pointed to deliberate lies. That if indeed PWl Epaingu Joseph and PW3 Abago Betty had seen the appellant commit the offence, he 10 - could not have been found at his home, he could have run away but instead the appellant went to the scene of crime after being informed by his brother about what happened to Josephine's home. That the appellant's conduct after the incident points to the fact that he was not guilty of the charges levied against him. Counsel argued that before dismissing the defence of alibi, it is incumbent upon court to evaluate both versions of evidence relating to where 15 20 - the accused could have been before making aly inference as to the credibility of the alibi raised He cited Bogere Moses v Uganda, SCCA NO.1 OF 1997 to that effect.

On ground 5, it was submitted for the appellant that the learned trial judge failed to accord the appellant an opportunity to present his antecedents in mitigation of the sentence. That she never inquired into his character and antecedents as required under section 98 of the TIA and direction no 6 (e), 9 (3), 9 (3) (0, (g), (tr) and 9(4) of the sentencing guidelines 2013. That the 25

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⁵ appellant was a first time offender, widower and a care giver, he is HIV positive, that exhibit PF 24 revealed that he was intoxicated with alcohol the day of the commission of the offence and was therefore, not in a ciear state of mind. That all these factors were never considcred in mitigation of the appellant's sentence but the learned trial judge only concentrated to the aggravating factors. That the sentence of 40 years imprisonment reduced to 36 years after deducting the period spent on remand was in the circumstances harsh and excessive. 10

In reply, counsel for the respondent addressed court on grounds 1,2 and ⁴ together and submitted that the prosecution did prove the ingredients of unlawful act, malice aforethought and participation of the appellant.

Regarding the ingredient of unlawful act, counsel submitted that PW ¹ Epaingu Joseph, PW2 Ajiko Dorcas and PW3 Abago Betty told court that ² children got burnt in the house of Apio Josephine and died of severe burns. The post mortem reports showed that the cause of death was deep burn wounds on the bodies and that the learned trial judge rightly decided the way she did.

Re garding malice aforethought counse 1 submitted that in homicides, the intention and or knowledge of the accused person at the time of committing the offence is rarely proved by direct evidence. He cited Nanyonjo Harriet and

another vs Uganda, Supreme Court Criminal Appeal No. 24 of 2OO2. That in determining whether the death was caused with malice aforethought, courts consider the nature of weapon used, manner in which the weapon was 25

⁵ used, part of the body targeted and the conduct of the accused during and after the incident for instance whether there was evidence of impunity.

Counsel submitted that PW3 testified that she woke up and noticed that their hut was on fire and that the children Akwi Martha and Apio Josephine had been burnt severely and they died. That the learned trial judge considered the evidence of PW3 Abago Betty, PW4 Akeso Agnes and PW2 Ajiko Dorcas that the bodies of the 3 deceased had been severely burnt and the nature of the burns on vulnerable parts of their body and that whoever set the house on

Regarding participation, counsel submitted that PW3 Abago Betty saw the appellant who was putting on a dark cloth holding a panga and a stick running towards the swamp. That prior to the fateful day, she had witnessed an argument between the appellant and Apio Josephine about their child and that the appellant had said that if she did not give him the chiid, it was ^a matter of death and life and at midnight she woke up only to see their house on fire. That PW3 Abago Betty and PW4 Akeso Agnes knew the appellant weli as the father of one of the deceased Akwi because he used to come to their home during day and he could sometimes sleep there. Counsei further submitted that PW3 Abago Betty testified that she was able to identify the appellant because there was light provided by the burning house and that the 15 20

accused was only 3 meters from her. 25

hre did so with malice aforethought.

That PW1 Epaingu Joseph met the appellant who emerged from a path which 1ed to Apio Josephine's home carrying a stick and a panga the very items PW3

5 saw. Counsel contended that the learned trial judge rightly held that the deceased were killed unlawfully with malice aforethought and by the appellant.

On ground 3, it was submitted for the respondent that prosecution witnesses PW1 Epaingu, Pw2 Ajiko Dorcas, PW3 Abago Betty and PW4 Akeso Agnes all

- 10 15 testified on oath that they knew the appellant who resides in the same village with them. That they knew him as the father of Akwi Martha whose mother was Apio Josephine and the appellant used to reside at the home of Apio Josephine where PW3 and PW4 also resided. That on the date of the murder, PW3 and PW4 saw the accused with Apio and the two were involved in an argument over their child and the appellant promised to do to Apio something. - That during the night PW3 woke up and saw their house on fire and that she saw the accused running away in possession ofa stick and a panga' Further, that PW1 testified that he met the accused coming from a path that led to Apio Josephine's home with a stick and panga. - 20 25 On ground 5, it was submitted for the respondent that the maximum sentence for murder is death and that the Constitution Sentencing Guidelines provide for the sentencing range in capital offences like murder. The starting point is 35 years and upon considering both aggravating and mitigating factors the sentence starts from 3O years up to death. That the trial judge in sentencing the appellant considered both mitigating and aggravating factors and the time the appellant had spent on remand and sentenced him to 36 years imprisonment. In the instant case, 3 lives were lost and they were all members of one family, they suffered injuries which caused their death, the appellant

SlPage 5 was a father of one of them. Counsel contended that the sentence of 36 years imprisonment therefore was not harsh.

In rejoinder, it was submitted for the appellant that the prosecution never adduced any direct evidence to indicate that the appellant had burnt the hut. That the circumstantial evidence relied upon to corroborate the evidence of

- PW4 Akeso Agnes was very contradictory. Counsel crted Kagaga Edlth as llganda CA No,325 of 2015 where a single identifying witness was a seven year old boy who alleged that he had seen his mother get petrol from the fridge and then set the house on fire and he also told court that he was awoken by his father when the house was already on fire. That court wondered how he could have seen the mother light the fire and yet he woke up when the fire was already gutting the house. Court found this evidence contradictory and acquitted the appellant. Counsel argued that Kayaga Edith was handled by Ms. Gladys Nyanzi Macrina learned state attorney the same attorney 10 15 - 20 Counsel submitted further in rejoinder that PW3 Abago Betty was the only identifying witness who told court that she saw the appellant running which meant that she only saw the appellant's back and that the assailant was 3 metres away. That she saw the appellant meet some people after he ran. That PW3's evidence was contradictory as it was impossible for her to have had

appearing in the present case and no appeal was preferred.

25 time to glare at the appellant up to a point where he met other people yet at the same time she claimed she was helped by others get out of the house. That PW2 Ajiko Dorcas's evidence that corroborated that of PW3 Abago Betty

⁵ was contradictory because it's unclear on whether the appellant was following them or walking towards them.

We have carefully studied the court record and considered the submissions of both counsel. We are alive to the fact that this court has a duty as the first appellate court under rule 30(1) (a) of the Rules of this Court to re-appraise the evidence and come up with its own conclusions. We are also further guided by the Supreme Court decision in the case of Father lVcrsensio Begumlsa and others os Eric Tibebaga; SCCA 17/2OO2 in which Court held that;

"Itis a u.tell- settled principle that on a first appeal, the parties are entitled to obtoin from the appellate court its oun decision on issues of fact as utell as of tau;. Although in a case of conJlicting euidence the appellate court has to make due allowance for the fact that it has neither seen nor heord the utitnesses, it must uteigh the conJlicting euidence and draw its otun inference and conclusions. "

We shall resolve grounds 1, 2 and 4 together. The learned trial judge is faulted for having held that the appeilant unlawfuliy and with malice aforethought caused the death of Elesu Richard, Akwi Martha and Apio Josephine' 20

Counsel contended for the appellant that there was no correct identification of the appeliant by PW1 Epaingu Joseph, PW3 Abago Betty and PW4 Akeso Agnes and as a result the judge had erroneously decided that the appellant had participated in causing the death ofthe deceased persons.

5 In determining the issue of cause of death, the learned trial judge stated as foliows;

"That Elesu Richard and Akttti Martha died from deep burn utounds on 6th mag 2O 16 duing and immediatelg afier tle fire is not disputed. PE. ¹ and PE 2 for Akuti and Elesu both children, shottt that Akui's body utas 10 totallg burnt while Elesu's bodg sustained deep broun bruises ouer the whole bodg. PE3 for Apio Josephine shottts that she died on loth June 2021 and cause of death was sepsis and seuere bunts.

> As to tr.thether the death utas unlaufullg caused, this will become clearer duing the eualuation and analysis of euidence."

15 On the ingredient of malice aforethought, Section 191 of the Penal Code act Cap 12O defines "malice aforethought" as follows:

"Malice aforetlnught shall be deemed to be established bg euidence prouing either of ttrc follou.ting circumstances: -

- a) An intention to cause the death of ang person, uhether such person is tLrc 20 person actuallg killed or not; or - bl Knotuledge that tle act or omission causing death uill probablg cause the deoth of some person, whetLrcr such person is the person actuallg killed or not, although such knouledge is accompanied bg indifference whether death is caused or not or bg o tt-tish that it mag not be caused", - 25 Perpetrators of crimes rarely voice out their intention when committing offences. Malice aforethought is therefore a state of mind. The intention and or knowledge of the accused person at the time of committing the offence is rarely or hardly ever proved by direct evidence. The courts usually deduce or

⁵ make inference of the intention or knowledge from the circumstances surrounding the killing such as the type of weapon used, the mode of kil1ing, nature of the injuries inflicted, the part of the body affected; whether l.ulnerable or not, and the conduct of the accused before, during, and after the attack. See TVbere u. R. (1945) 12 DACA 63, Uganda us Twrwornute (1978) HCB 1a2 and Nanyonjo Harriet and Anor a. Uganda (S,C). Criminal Appeal No. 24 of 2OO2. 10

Pw2, Ajiko Dorcas testified that when she reached the scene of crime, she found that Apio Josephine had serious burns, one child Akwi Martha had died while Elesu Richard had been severely burnt but was sti11 alive but later died after reaching hospital.

PW3, Abago Betty daughter to one of the deceased Apio Josephine gave testimony that when she went to the scene and after opening the door, she pulled out Elesu and Apio but Akwi perished in the house and her remains were recovered. That Elesu died on their way to hospital whiie Apio Josephine

her mother died 2 months later. 20

While determining this ingredient, the learned trial judge stated as foliows;

"The fact that 3 liues u-tere lost as a result of the reckless conduct of tLrc accused implies that he intended the consequences of his reckless conduct. Find that the death of the three people uas a result of the unlauful and intentional actions of the accused person."

Prosecution Exhibit 1, the post-mortem report of Elesu Richard showed that his body had multiple burns on the face, back, upper fore limbs, abdomen

⁵ and part ofthe upper thighs and superficial burns on the chest. The cause of death was deep burn wounds which could have led to severe dehydration and haemorrhage leading to death.

Prosecuton Exbit 2 the post mortem report for Akwi Martha showed that her body was totally burnt, her skull and radial ulna bones were exposed and the cause of death was ruled to be deep burn wounds all over the body and suffocation from oxygen due to very hot fire.

For Apio Josephine aged 50 years P. Ex.3 the post mortem report showed that the cause of death was sepsis due to severe burns.

Evidence on record shows that the hut in which the deceased and the survivors slept was burnt and the deceased persons obtained deep burn wounds which 1ed to their death. The nature of injuries sustained were so grave. PExl shows that Akwi's skull was exposed due to the deep burn wounds. It is clear that whoever set the hut on hre wanted those inside dead and this in our view is proof of malice aforethought' 15

On participation of the appellant, PW 2 Ajiko Dorcas testified that she was awakened by an alarm raised by Akeso Agnes shouting that her child had gotten burnt and calling her for he1p. 20

PW3 Abago Betty testified that the appellant came to their home and after eating he struggled with her mother Apio and argued about the child; Akwi

Martha and after the quarrel, each went away to drink alcohol. That the appellant and Apio Josephine were the parents of Akwi. During the quarrel, the appellant said that if Apio did not give him his child it will bc a matter of 25

⁵ life and death. This evidence was corroborated by the testimony of PW4, Akeso Agnes who aiso witnessed the argument.

Abago Betty further testified that when she saw their house burning, she rushed and opened the door and saw the appeilant approximately 3 meters away putting on a dark cloth holding a panga and a stick. That he was running towards the swamp.

PWl Epiangu Joseph testilied that while they were running to the scene of crime, they met odhaimbo who told them that there was someone who had burnt Josephine in the house together with the children' That he was carrying a stick and a panga coming from the path which ieads to Joseph's home.

PW4 Akeso Agnes also testihed that PW3 Abago Bctty told her immediately they ran out of the burning hut that she had seen the appellant running away from the scene. 15

The appeilant testified that he never participated in the murder because he was at his home on the fateful night.

In determining the ingredient of participation, the learned trial judge stated as follows; 20

> "Tte fact that the acansed uas found in the uicinitg of the burrLing house, that he had with him o stick and panga as descibed bg Abago PW3 and his omission to ntsh to the rescue of Apio tuith tt-thom he cohabited and u-tith whom tleg had a child is strong circumstantial euidence of participation in burning of Apio's house. Walking atuay from the scene

⁵ uhere a loued one is in danger onlg to be seen in the morning is consi"stent u-tith guilt."

ln Dhatemuta alilas Waibt V tlganda, Criminal Appeal No. 23/7977, the Court of Appeal stated that, "It is true to saA that circumstantial euidence is uery often the best euidence. It is euidence of surrounding circumstances which is capable of prouing facfs in issue quite accuratelg; it is no derogation of euidence to sag that it is circumstantial". lt was heid in R us. Kipkerlng Arap Koske and. Anor. (7949) 16 DACA.135 that "in order to iusttfg, on ciratmstantial euidence, the inference of guilt, the exanlpatory facts must be incompatible uith the innocence of the acansed and incapable of explanation upon ana other reasonable hgpothesis than thot of guilf'. See also Mureeba (supral, Simon Musoke os- R (1958) EA 775, Bogere Charles as. Uganda (suprerne Court of Uganda Certlfied Crlninal Judgetnent 1996/2000), and Dr. Aggreg Ktgingt & 2 others Vs llganda Crirnlnal Sesston Case No. OO3O of 2006. 10 15

From the above evidence on record PW3 Abago Betty saw the appellant leave the scene of crime with a stick and a panga. This evidence was corroborated by the evidence of PW1 Epaingu Joseph who also testified that they met the appellant coming from the path from Apio's home. It's really disturbing how a person who could have been toid of the news of a fire where his daughter and her mother were involved could act in the way the appellant acted. In addition, both PWl Epaingu joseph and PW3 Abago Betty were consistent in their evidence. If the appellant was seen coming from the path from Apio's home as was stated by PW1 20 25

Epaingu Joseph, where was he really coming from if not from the scene where he had set a hut on fire.

Suffice to note here that the evidence on record indicates that earlier in the day the appellant had threatened the deceased Apio Josephine that if she did not give him his child it was going to be a matter of life and death and indeed a few hours after such an argument Apio's hut was set on fire and 3 people died. 5

The appellant's counsel submitted that during the fateful night, there were no factors which favoured correct identification. That the evidence of PW1 Epaingu, PW3 Abago and PW4 Akeso based on to reach a conclusion that the appeliate

was properly identified was marred with deliberate lies, inconsistent, contradictory and ought to have been rejected.

There is need for supportive evidence where the conditions favouring correct identification are diflicult. The Supreme Court in Moses Kasana as Uganda; Crlnlnal Appeal No. 72 of 79a1 rI992-93) IICB had this to say on identification; 15

"Where the conditions fauouring correct identification are dffianlt tlrcre is need to look for other euidence, uthether direct or circumstantia| ttthich goes to support the correctness of identifi.cation and to make the tial court sure that there is no mistaken identification. Other euidence may consist of a prior threat to the deceased, naming of the assailant to tlnse uho ansu-tered the alarm, and of fabricated alibi. "

In determining whether there was proper identification, the starting point is understanding the conditions for making the identification. The other factors are the length of time the accused was under observation, the distance, the 25

⁵ light and the familiarity of the witness with the accused. See also.' Moses Bogere us Uganda; (SC) Criminal Appeat No, 1/1997

PW3 Abago Betty testified that the appellant was 3 meters away from her and she managed to recognise him because the house was burning which created light around. PW1 Epaingu testified that while rushing to the scene with his grandson Edmond Epainyu, they met the appellant who told them that there

was someone who had burnt Josephine together with her children in the house and he thereafter disappeared. 10

The appellant was well known to PW3 Abago Betty and PW4 Akeso Agnes as the father of the child he bore with Apio Josephine. Apio was also a mother

to PW3 Abago Betty while PW1 Epaingu was an in-law to the appeilant. They both knew that he used to cohabit with Apio Josephine one of the deceased and that sometimes he could sleep over or he could go to his home. They were familiar with him. PWl met him and he even talked to them and told them Apio's house had been burnt. There were no contradictions in this piece of evidence and there was no mistaken identity. The appellant was properly identified. 15 20

From the above evidence, it's now clear that the appellant set the deceased's hut on fire that kilied 3 of the inhabitants. This act was unlawful with malice aforethought. The appellant ful1y participated and put into effect his threats which he had earlier made that if he was not given his chi1d, it would be a matter of life and death. The death which resulted from the fire was a natural consequence ofthat act and the appellant must have seen it (death) as a natural

lTlPagc

⁵ consequence of his inhumane act. The fire that killed the deceaseds'did not start from inside the hut and was not accidental as argued by the appellant's counsel. It was lit by the appellant with intention to kill the deceaseds. We see no other co-existing circumstances which would weaken or destroy this inference.

On ground 3, the learned trial judge is faulted for having dismissed the appellant's alibi. That the prosecution did not destroy it in any way by evidence of investigation. 10

It is trite that when an accused person raises a defence of alibi, it is not his duty to prove it. It is up to the prosecution to destroy it by putting the accused person squarely at the scene of crime and thereby proving that he is the one

who committed the crime. See: Selcltole ko vs. Uganda [7968] EA 531, 15

In the instant case, the appellant testified that he was at his home that fateful night and went to the scene in the morning after being called by his brother who informed him that Apio's house had been burnt.

The appellant's defence of alibi in our view was a 1ie. Prosecution evidence specifically the testimony of PW1 and PW2 destroyed the appellant-s alibi and put him at the scene of crime. The testimony by the said witnesses and the circumstantiai evidence makes the version of the prosecution more believable than the appellant's alibi. The learned trial judge rightly dismissed the appellant's alibi and we lind no reason to fault him in deciding the way he did. 20 25

On ground 5, the learned trial judge is faulted for passing a harsh and excessive sentence having failed to accord the appellant an opportunity to

lSlPage

⁵ present his antecedents to mitigate the sentence. That the trial judge did not take into account the appeliant's mitigating factors but instead concentrated only on the aggravating factors.

We have scrutinised the record, however it is silent on whether the learned trial judge held allocutus. The record ofproceedings only stop at showing that the assessors gave in their opinion and advised court to find the appellant guilty. Thereafter there is a judgment of court and at page 76 of the record there appears the trial judge's sentencing decision where she stated that;

\*Three people lost their liues in a fire deliberatelg started bg the acansed person. More could haue died but theg suruiued. The fact that Akwi utas his daughter

- ond Apio his uife uas not enough to deter the accused from committing the gruesome murder. Tlnt killirLg of spouses is rampant and therefore a pattent of uiolence against u)omen is an aggrauating factor that tuill attract an appropiate sentence as recommended bg tle UN Declaration on uiolence against u)omen. Appropiate sentence is fortg Aears on eoch count. As the acansed has been on 15 - remand since Mag 2012, he is sentenced to 36 years imprisonment on each count, The sentence to run conanrrentlg. " 20

This Court can only interfere with the discretion exercised by the trial judge in imposing sentence if the exercise of that discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage of justice or where the trial Judge ignores to consider an important matter or circumstance which ought to be considered while passing sentence or where the sentence imposed is wrong in principle. See;

## s Kiutalabge Bernard us Uganda Criminal Appeal No.743 of 2OO1 (unreported)

A judicial officer must record what the accused submitted in mitigation and this should be evident on record. The judicial officer must state that the sentence was arrived at with both the mitigating and aggravating factors in mind. It is only then that the accused will be sure that the judge addressed his or her mind to the cited mitigating factors but nevertheless came to the conclusion that the aggravating factors outweighed the mitigating ones. See: Ramorthan Magdla us Uganda (Crimlnal Appeal No. Ol Ot 2014) [2014

UGSC 34 (2O September 2O17).

- 15 With the greatest ofrespect to the learned trial judge, her sentencing decision shows that she considered only the aggravating factors which she might have known from hearing the case generally. There was no allocutus held which would have enabled her to hear both aggravating and mitigating factors as required by law. The appellant was never given an opportunity to present the - 20 mitigating factors and the same do not appear anyvuhere in the sentencing decision.

The omission on the part of the trial court to conduct allocutus amounted to ignoring an important step or circumstance which ought to be considered and this occasioned a miscarriage of Justice on the part of the appellant. This is

25 one of the circumstances under which this court, as a first appellate court, can interfere with the sentence imposed by the trial court.

⁵ For that reason, we set aside the sentence of the triai court and proceed to sentence the appellant afresh pursuant to Section 11 of the Judicature Act which provides:

## "77. Court of Appeal to haae pouters of the court of orlglnal Jurlsdlction.

For the purpose of lrcaring and determining an appea| the Court of Appeal shall haue all the pouters, authoitg and jurisdiction uested under ony uitten law in the court from the exercise of the original juisdiction of uthich the appeal originally emanated" 10

In mitigation of the sentence, Counsel for the appellant submitted that the appellant was a first time offender, widower and a care giver, he is HIV positive, that PF 24 revealed that he was intoxicated with alcohol the day of the commission of the offence and not in a clear state of mind' 15

It was submitted for the respondent that 3 lives were lost and they were all members of one family. That they suffered injuries which caused their death and the appellant was a father of one of the deceased Akwi Martha.

The sentencing range in capital offences like murder is 35 years and upon considering both aggravating and mitigating factors is from 30 up to death. See: Paragraph 19, 3rd Schedule Part 1 of the Constitution (Sentencing Guidelines for Court of Judicature) (Practice) Directions 2013'

We are also alive to the principie of uniformity and parity in sentencing. In Aharikundira Yustina Vs Uganda, Supreme Court Criminal Appeal No.27 of 2O15 where the appellant brutally murdered her husband and cut off his 21 lPage 25

body parts in cold blood, the Supreme Court set aside the death sentence $\mathsf{S}$ imposed by the trial court and substituted it with a sentence of 30 years imprisonment.

In Semanda Christopher & another versus Uganda CACA NO.77 OF 2010,

the deceased was assaulted by the appellant and he later died in hospital.

They were sentenced to 35 years imprisonment for murder and on appeal, the 10

court of appeal upheld the sentence.

In Wamutabanawe Jamiru versus Uganda, SCCA No. 74 of 2007, the Supreme Court sentenced the appellant to 34 years imprisonment for murder.

Having taken into account both aggravating and mitigating factors and the period the appellant had spent on remand from 13^th September 2013 to 22^nd 15 April 2016 the date of conviction which is 3 years and 7 months we are satisfied that a concurrent sentence of 32 years imprisonment on each count will meet the ends of justice in this case. The sentence is to be served from the date of conviction.

## 20 We so order

Caryele<br>managere this $\bigcap_{\cdots}$ day of ... event $\ldots$ 2023. Delivered at.

Elizabeth Musoke

**JUSTICE OF APPEAL**

**NOS**

Cheborion Barishaki

JUSTICE OF APPEAL

Hellen Obura

JUSTICE OF APPEAL

$\tilde{\phantom{a}}$