[2020] UGCA 2089

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# SITTING AT MBALE

(Coram: Egonda-Ntende, Cheborion Barishaki and Muzamiru Kibeedi, JJA)

### CRIMINAL APPEAL NO. 159 OF 2017

| OKOLIMO STEPHEN ] | | |-------------------|----------------------------------------| | 2. OKWALINGA IDDI | | | OPEJO JOHNSON | | | 4. ANYAIT PELINA | ] :::::::::::::::::::::::::::::::::::: | | | |

$5$

## VERSUS

**:::::::::: RESPONDENT** UGANDA :::::::::::::::

[Appeal from the decision of the High court of Uganda holden at Soroti (Hon. Mr. Justice BATEMA N. D. A.) made on 05. 05. 2017 in Criminal Session Case No. HCT-09-CR-SC-0132 OF 2013]

# JUDGMENT OF THE COURT

This is an appeal from the decision of the Hon. Mr. Justice Batema N. D. A. in High Court Criminal Session Case No. HCT-09-CR-SC-0132 of 2013 sitting at Soroti dated the 05^th of May 2017 in which the appellants were indicted, tried and convicted of the offence of murder C/S 188 and 189 of the Penal Code Act, Cap 120 and each one sentenced to 41 years' imprisonment.

The Particulars of the offence stated that Okolimo Stephen, Okwalinga Iddi, Opejo Johnson, Anyait Pelina and others still at large on the 27^th of March 2013 at Africa Village in the Amuria District murdered Olum Benasio.

The background to the case is that the deceased and the accused persons were all residents of Africa Village in Amuria District. The deceased had a land dispute with some of his neighbours and he reported a case of criminal trespass against the said neighbours to Amuria Police Station. On the 27^th of March 2013 at about 7 am, the police went to effect the arrest of

Page 1 of 18

the suspects from their homes. The police affected the arrest of the 2 suspects amidst strong resistance from a mob which pursued the police up to the police post in a bid to rescue the suspects but failed.

From the police, the mob went to the deceased's home where the deceased was at the time seated with his wife, PW1 Icholot Hellen. 35 Sensing danger, the deceased ran away from his home and sought refuge in a grassed thatched house of one of the neighbours. The mob pursued him up to the hide out, found the house where the deceased was hiding locked, broke into it, killed him and dispersed.

The post mortem report revealed that the deceased had multiple cut 40 wounds on the head, a broken skull bone and broken bone of the left leg.

The trial judge found that the appellants were properly identified as participants in the "mob justice" and all had a common intention to murder the deceased. He accordingly convicted them and sentenced each one of them to 41 years of imprisonment at Luzira Upper Prison.

The appellants appealed to this court against both the conviction and sentence on the three grounds set out in the Memorandum of Appeal as follows:

1. "That the learned Trial Judge erred in law and fact when he convicted the appellants on (sic!) Contradictory prosecution evidence.

- 2. The learned Trial Judge erred in law and fact when he did not properly evaluate the appellants' alibi. - 3. The learned Trial Judge erred in law and fact when he handed the Appellants an illegal, harsh and excessive sentence of 41 years."

Page 2 of 18

At the hearing, the appellants were represented by Ms Agnes Kanyago of 55 Ms Dagira & Co. Advocates, on State Brief, while the respondent was represented by Mr. Ojok Alex Michael of the office of the Director of Public Prosecutions, Mbale Regional Office.

At the hearing both sides adopted their respective written submissions which they had previously filed in court. 60

# **The Appellants' Arguments**

In her written submissions Counsel for the appellants argued grounds 1 & 2 jointly.

- Counsel of the appellants submitted that the prosecution evidence was unreliable and had gross contradictions regarding the participation of the 65 appellants in the murder of the deceased and the trial judge erred to rely on it to convict them. That the contradictions between the oral testimony of in court about the participation of the appellants and what she had earlier on stated in her Police Statement were major and rendered her untruthful. - Counsel further submitted that on their part the appellants had ably 70 accounted for their whereabouts at the material time of the alleged murder of the deceased but the trial judge failed to properly evaluate the appellants' alibi viz a viz the prosecution's evidence and /or to give reasons for accepting either of the two which was an error on his part. For this submission Counsel relied on the case of Turyahabe Ezra and 12 others 75 Vs Uganda, SCCA No. 50 of 2015.

With regard to Ground 3, counsel for the appellants submitted that the trial judge erred by not deducting the period that the appellants had spent on remand. Counsel relied on the case of Rwabugande Moses v Uganda, SC

Criminal Appeal No. 25 of 2014 (unreported). 80

Counsel further submitted that the sentence of 41 years' imprisonment was harsh and excessive in so far as the trial judge never considered the mitigating factors.

Counsel concluded by inviting us to allow the appeal, set aside and/or quash the conviction and sentence. 85

### **The Respondent's Arguments**

Counsel for the respondent disagreed.

Counsel submitted that the prosecution witnesses knew the appellants well since they were neighbours, and that the conditions pertaining at the time favoured a correct and positive identification of the appellants.

Counsel further submitted that if there were any contradictions or inconsistencies, they were minor and should be safely ignored. For this submission counsel relied on Uganda Vs George Wilson Simbwa, SCCA No 37/1995.

With regard to the defence of alibi raised by the appellants, counsel 95 submitted that the evidence of the prosecution witnesses PW1, PW2 and PW3 squarely placed the appellants at the scene of the crime. So, there is no basis to fault the trial judge.

With regard to ground 3, counsel submitted that the sentence of 41 years passed on each of the appellants was sufficient and appropriate in the 100 circumstances and that the appellant had not proved any sufficient ground upon which this court can base to interfere with it.

Counsel concluded by praying that the appeal be dismissed.

#### **Appellants' Rejoinder** 105

In rejoinder, Counsel for the appellants submitted with regard to the identification of the appellants that the peculiar circumstances prevailing at the material time rendered impossible the identification of the appellants by the prosecution witnesses. The peculiar circumstances were that the deceased was killed by a mob. And the key witnesses (PW1 and PW2) were not at the scene of the crime at the material time.

As regards the contradictions and inconsistencies in the testimonies of

PW1 and PW2, counsel submitted that they were not simply minor inconsistencies but deliberate falsehoods intended to mislead court. That PW1 while recording a statement at police named different persons as the 115 ones who assaulted the deceased to death and not the appellants who were subsequently arrested and convicted.

Counsel reiterated her earlier submissions and prayed that the appeal be allowed.

#### **Analysis by Court** 120

As a first appellate Court, our duty is to reconsider all material evidence that was adduced before the trial court and come to our own conclusions of fact and law while making allowance for the fact we neither saw nor heard the witnesses. See Rule $30(1)(a)$ of the Judicature (Court of Appeal Rules) Directions, Baguma Fred Vs Uganda SCCA No. 7 of 2004, Kifamunte Henry Vs Uganda SCCA No. 10 of 1997, and D. R Pandya Vs R [1957] EA 336.

It is with the above principles in mind that we shall now proceed to analyse this appeal.

Grounds 1 and 2 130

> The gist of the appellants' complaint under grounds 1 and 2 is that the trial judge did not properly evaluate the prosecution evidence and the appellants' alibi which resulted in the erroneous conviction of the appellants for the offence of murder of the Late Olum Benasio. The appellants' counsel contended that the prosecution evidence was full of contradictions and ought not to have been relied upon by the trial court.

> Resolution of the complaints of the appellants raised in grounds 1 & 2 revolves around analysis and re-evaluation of the prosecution evidence as to the identification of the appellants as having participated in the killing of the deceased and the appellants' defence of alibi.

> While resolving the issue of identification and participation of the appellants, the trial court after summarising the testimonies of PW1 Icholot Hellen (Wife of the deceased), PW2 Odong John (Son of the deceased), PW3 Atodu Martin (Son of the deceased) and that of all the appellants stated thus:

"It was possible for the prosecution witnesses to identify the four accused because they led others. They were the first to arrive in a small group. By the time the other bigger group joined them they had distinguished themselves as the group leaders. PW1 and PW2 clearly identified them when they first attacked the deceased at his home.

Apart from being the leaders in the first small group, the accused attacked in broad day light. The witnesses knew them before as the immediate neighbours.

The grudge arising from the land dispute explains their motive and malice aforethought. Anyait was directly linked to the land dispute. The deceased had sued her husband and emerged as a successful party. The other accused were her relatives and sympathizers. They were all against the arrest of Olem and Ochap.

I find that they all had a common intention to the murder of the deceased. They did not only abet or aid. They were properly identified participating in the murder of the deceased Venasio. They are all principal offenders under Section 19 of the Penal Code Act. I find them guilty of the offence of murder C/S 188 and 189 of the Penal Code Act as charged."

The law on identification has now been settled by a host of decisions of the Supreme Court and this court. In Beingana Kanoni Willy Vs Uganda, Supreme Court Criminal Appeal No. 26 of 2009, the Supreme Court while quoting the case of Abdallah Bin Wendo Vs R [1953] 20 EACA 166 laid down the following conditions as considered favourable for correct identification:

- Whether the accused was known to the identifying witness at the i. time of the offence. - The length of time the witness took to identify the accused. ii. - The distance from which the witness identified the accused. 175 III. - The source of light that was available at the material time. iv.

It is with the above checklist in mind that we now proceed to re-evaluate the evidence before the trial court.

In her testimony during examination-in-chief, PW1 Icholot Hellen stated thus: 180

> "I know the accused Okorimo is a neighbor. Okwalinga(A2) is a neighbor. So is A3 Opejo. So is Anyait(A4).

> Olum Venasio was my husband. On 27/03/2013 at 6:00am I was at home. Police officers came to arrest those who had a case here (in court). Olum had a case against a number of them. Ikasi alias Ochal and his brother Olem. Those two were arrested on the complaint of Olum Venasio. The others ran away.

> After their arrest, the accused now before court Anyait, Opejo, Okwalinga, Okorimo and others came running from all directions.

They surrounded our home. My husband tried to ring police for rescue. They were many. HE TRIED TO RUN AWAY. They were armed with pangas, axes and wooden hoe handles.

Anyait had a panga. Opejo had a hoe handle. Okwalinga had a pin pointed spear. Okorimo had a stick.

My husband tried to run away. They chased my husband. He ran to a 195 neighbour's home and entered into a house, House of Atodu. He locked himself inside. I followed them as they chased my husband.

> I heard the old man, my husband, raise a loud alarm. The accused had entered the house where the deceased had entered. I mingled with the assailants and stood outside in the court yard. The assailants were many. About 20 of them. Some began digging into the walls of the house. The 4 accused were inside the house.

> The deceased threw some money and his phone at them. They picked that then began chasing me. I saw him throwing the money and phone. I was standing among them. They had not recognized me. They came out and chased me away. I ran back home and locked myself in my house. I hid in the house until police officers came on a patrol car. That is when I came out.

By the time I came out the accused had gone away. Very many people gathered at the scene. And police officers observed the dead body. They picked it, put it on the police truck and brought it to my home. Later I saw police officers come on their van to arrest the accused.

I had a chance to see and touch the dead body of my husband. He had a deep cut wound on the forehead and several injuries all over his body.

These accused are the ones who murdered my husband. Others are still at large."

During cross examination, PW1 stated:

"[My husband] was killed [on] 27^th of March, 2013. I was at home, with the deceased, with our children and their wives. We stay in the same compound. The mob of assailants came from all directions mainly the side of shops of Akore Trading Centre and the others from the direction of their homes. I know. They were about 20. The accused were the first to arrive. The bigger number followed later. Those who came later chased us. 2 groups. The others are still at large. The groups were running while talking. Saying that this old

man has grabbed our land. The accused said so. Anyait said it. At 8:00am. It was cloudy a day

I got scared but later gained courage to follow them 230

> My husband Olum Venasio ran away first. They chased him. We all ran together. I followed them.

> Before the incident I knew the accused. They are my neighbours. They know me. They focused on the deceased. I mingled with [them]. They did not bother about me till later. I did not hide. Anyait had a panga.

Wouldn't you hide?

I followed my husband

I was there at the scene of crime. Just at a distance. [about] 8-10 meters.

My husband took off. They chased him. They ignored me

The second group immediately followed. They were called by the first group to follow them. No. they did not stop.

They called them as they ran. These 4. In the first group.

Yes, they all stay in the same direction.

I was able to tell the weapons, I named them. I said Anyait had a panga. Opejo had a hoe handle.

I mingled with the assailants chasing my husband. When he entered the neighbour's home I remained standing at the court yard of that home.

I remained standing and watching what they were doing. They were busy after my husband's life.

Distance of length of two count room (about 30 meters). I could see the door of that house clearly. I loved my husband. We had even wedded. I made a loud alarm as I was running to my home. I locked myself in the house

I had observed them

It was in the morning at 8:00am

I observed. I could see

Otn: Who hit first?

I heard the sound of beatings and him crying. Not seeing them individually.

He cried and offered to give them money in exchange for his life.

He cried Okorimo you are killing me for nothing. Anyait you are killing me..... He named all the accused. They were inside. I could hear the assaulting sound. Hitting his body. My eyes saw. They even broke the walls of the house. East and left side. It is not a lie. I am telling the truth

Very many. They broke into the walls and killed the deceased very fast. Not like lightening. As long as I stated. In about 2 minutes only my husband had died. It was brief. I recognized them. That is why I am here. I recognized the 20 persons. They were my neighbours. I start with these 4 accused

8- Obukulem 7- Opodo 5- Okila 6- Olem

9- Olewumo 10- Ariko 11- Ariko's wife Jescar

12- Odeke

Tears covered my eye sight. I could not readily recognize others

I had seen the mob. After they had by-passed me and chased my husband

They first faced me. Then chased my husband. Then I followed them.

I recorded a police statement

I am illiterate. I cannot read. (shown a document) ..."

From the above, it is crystal clear that all the conditions for correct identification of the appellants as being part of the mob which killed her husband were favorable: They were her neighbours. She was with her 285 husband at their home when the appellants invaded it. She followed her husband and the appellants to the scene where the husband was eventually killed by the mob. She mingled with the mob at the scene of the crime before they recognized her. It was daytime. The trial judge cannot be

faulted for holding that she had properly identified the appellants as having 290 participated in the murder of her husband.

In her submissions, Counsel for the appellant attacks PW1's evidence as being contradictory in so far as she had not mentioned in her Police Statement that "Anyait had a panga. Opejo had a hoe handle. Okwalinga had a pin pointed spear. Okorimo had a stick" and yet in her court testimony she had stated so. We are satisfied that this was a minor contradiction. As the appellants were convicted under the principle of "Common intention" what was material was evidence of PW1 positively identifying their participation as part of the mob which killed the deceased and not necessarily whether the actual killing was done by the appellants individually or their being in possession of "deadly weapons".

$\overline{\psi}(\cdot)$

PW2 Odeng John was a son of the deceased. He testified that the appellants were known to him before the incident as his neighbors. On the fateful day he was ploughing in a nearby garden when at about 8:00 AM he saw a group of people who swarmed their home and surrounded it. He was able to recognize Okorimo Stephen, Okwalinga, Opejo and the old woman Anyait as part of the group. He ran away and climbed a tree from where he was able to see his father being chased towards the neighbor's home which ended up being the scene of crime from where his father was killed. The tree was about 50 meters from the scene of crime and was able to clearly observe what happened at the scene of crime and the participation of the appellants as part of the mob that killed his father.

We are likewise satisfied that the conditions for correct identification of the appellants by PW2 existed and that the trial judge cannot be faulted for finding that they had been properly identified by PW2 as having been part of the mob that killed the deceased.

Page 11 of 18

As for PW3 ATODU MARTIN, he testified that he likewise knew the appellants as their neighbors. That on that fateful day, he was at their home when the Police officers went to arrest 2 people who had been accused by his father as trespassing on their land. He is the one who assisted the Police Officers identify and arrest Olem and Ochap which created a lot of tension in the village with some people trying to forcefully frustrate the police do its work. He was around when the Police shot in the air to scare the unruly mob which comprised of the appellants.

After less than 1 hour he was called on phone by his father who informed 325 him that had been besieged and the accused were about to kill him. He rushed home with police only to find that his father had already been killed.

From the evidence of PW3 he identified the participation of the appellants at the stage when they were part of the group preventing the arrest of the two suspects, Olem and Ochap. He did not see the appellants participate at the scene of crime. But his testimony is relevant for purposes of maintaining the chain of evidence. And when PW3's evidence is added to that of PW2 & PW3 the trial court cannot be faulted in being satisfied with the identification of the appellants by the prosecution witnesses.

The appellants' counsel criticized the trial judge for not evaluating the 335 appellant's alibi viz a viz the prosecution's evidence and thereafter giving reasons for accepting either of the two. For this submission counsel relied on Turyahabwe Ezra & 12 Others Vs Uganda, SCCA No. 50 of 2015.

In reply, Counsel for the respondent submitted that through the evidence of prosecution witnesses PW1, PW2 & PW3 the appellants were squarely 340 placed at the scene of crime.

DW1 Okolimo Stephen testified not on oath. He stated that on the fateful day in the morning he went to the home of his neighbor, Obanyam Bislam. He stayed there up to 9:00am. While there he learnt of the killing from the LC1 chairperson who was going to report to police. They dispersed and he went home for fear of mass arrest by the police.

He stayed at his home and never to the scene even thought he had heard of the bad news for feared being threatened as a suspect. He stated that his home was 1 mile away from the scene of crime.

DW2 Okwalinga Iddi testified not on oath. He stated that on the fateful day 350 he got up at 6:00am and went with his children to their school, Akore Primary school. The school had called him because his children had dodged school attendance. He met the Head Teacher and returned home at about 9:00am. When he reached home he met the LC1 Chairperson who informed him about the death of the deceased. He went out to graze his 355 cows.

He was arrested by the police on the 3^rd day from his home.

He stated that he did not go to the scene because it was far away from where he had met the LC1 Chairperson.

- DW3 Opejo Johnson testified not on oath. He stated that the LC1 360 Chairperson was his neighbor. That on 27/03/2013 while he was at his home he was woken up at 4:00am by gunshots. He went to the home of the Chairperson. He was told that the gun shots had been by Police Officers and that they had arrested Olem Charles and Ochap Joseph. - That at about 6:00am he tethered his cows. At about 9:00am the 365 chairperson told him that he was going to Akore Police Post following the

killing of Olum Venasio. That on that day he went out to graze his cows till evening.

That he was arrested on Friday 29^th March 2013 from the home of Councilor Engalut Mary where he had gone to draw water, and driven to CPS Amuria.

DW4 Anyait Penina alias Penilah testified not on oath. She stated that on the fateful day the police officers came at 4:00am. She heard people making alarm from all over the village. She woke up wondering what was happening. At 6:00am some people went to her and told her that they were following up the people who had been arrested by police namely, Ochap and Olem Charles.

That she remained home preparing her children for school. At about 8:00am a one Ocen Bosco told her that Olum had been killed and that everybody had run away from the village. She said that she could not run but she walked away from her home to her elder son's home. She stayed at her son's home from then till she migrated to Olekat village. She feared being arbitrarily arrested by police. She was arrested on Friday 29^th March, 2013 and taken to Amuria.

A review of the trial court's judgment indicates that he only set out the 385 summary of the defences of the appellants but there is no evidence of his having evaluated the same thereafter. This was an error on his part. But having re-evaluated the evidence of the alibi, we are satisfied that the conclusion of the judge cannot be faulted. The appellants were properly identified and squarely put at the scene of crime by the prosecution 390 witnesses and accordingly the alibis cannot stand. In Baluku Samuel & Another Vs Uganda, SCCA No. 21 of 2014 the Supreme Court held that where the prosecution adduces evidence showing that the appellants were Page 14 of 18

properly identified and squarely put at the scene of crime, then their defence of alibi cannot stand. 395

In the result grounds 1 and 2 fail.

## Ground 3

The appellants' complaint under ground 3 is that sentence of 41 years' imprisonment term that was handed down to them by the trial judge was illegal, harsh and excessive.

Counsel for the appellants submitted that the trial judge erred by not deducting the period the appellants had spent on remand and that he did not take into account the mitigating factors.

Counsel for the respondent disagreed.

The appellants' complaint is valid. Article 23 (8) of the Constitution of the 405 Republic of Uganda imposes an obligation on court to take into account the period spent on remand by the appellant while sentencing. It provides as follows:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment." [Emphasis added]

The sentencing decision of the trial judge does not indicate anywhere that the trial judge took into account the above Constitutional provision. The 415 sentencing order simply stated thus: "I sentence each of the accused A1, A2, A3 & A4 to 41 years imprisonment at Luzira Upper Prison."

As a result, the sentence is illegal for failure to comply with a mandatory constitutional provision and warrants interference by this court. See

## Wamutabanewe Jamiru Vs Uganda, Supreme Court Criminal Appeal No.74 420 of 2017 and Rwabugande Moses v Uganda [2017] UGSC 8

On this ground alone, the appeal succeeds in respect of the sentence. We accordingly set aside the sentence and invoke our powers under Section 11 of the Judicature Act to proceed afresh to sentence the appellants. It is not necessary to consider whether the sentence was harsh or excessive.

Section 11 of the Judicature Act, Cap. 13 provides as follows terms:

"For the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated."

In the instant case the appellants advanced the following mitigating factors: They were first offenders, remorseful and deserved a lenient sentence in order to reform.

Commission of an offence by way of "mob justice" has likewise been held to be a mitigating factor in the case of Kamya Abdullah & 4 Ors Vs 435 Uganda, Supreme Court Criminal Appeal No.24 of 2015 where court said:

"Without downplaying the seriousness of offences committed by a mob by way of enforcing their misguided form of justice, a wrong practice in our communities which admittedly must be discouraged, we cannot ignore the fact that, in terms of sheer criminality, such people cannot and should not be put on the same plane in sentencing as those who plan their crimes and execute them in cold blood."

On the other hand, the aggravating factors were that the appellants killed a 445 neighbor who was trying to enforce a court award and murders arising out of land disputes and mob justice were a common occurrence in the area. These called for a deterrent sentence.

This court is also obliged to maintain consistence or uniformity in sentencing - albeit while being mindful that cases are not committed under 450 the same circumstances (See Livingstone Kakooza Vs Uganda [1994] UGSC 17 and Sentencing Principle No. 6(c) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013 - Legal Notice No. 8 of 2013).

In Kamya & 4 Ors Vs Uganda (op cit) the appellants were part of the mob 455 that had arrested and beaten to death a lady allegedly for stealing household items of a one Naluwoza Annet. The Supreme Court imposed the sentence of 18 years imprisonment for each of the appellants.

In Okello Alfred & 5 Others Vs Uganda, Court of Appeal Criminal Appeal No 28 of 2016 the appellants were convicted of murder and sentenced to 460 45 years imprisonment each. On appeal, this court reduced the sentence to 20 years imprisonment.

In Opio Daniel Vs Uganda, Court of Appeal Criminal Appeal No. 32of 2011, the appellant was convicted of murder and sentenced to 25 years imprisonment. On appeal to this court the sentenced was reduced to 20 years imprisonment.

## DECISION

- 1. Having taken into account all the above factors, we find that a term of imprisonment of 18 years to be appropriate for each of the appellants. 470 From that sentence we deduct the period of 4 years and one month the appellants spent on pre-trial detention. - 2. We therefore sentence appellant no. 1 to a term of 13 years and 11 months' imprisonment to be served from 05^th day of May 2017, the date of conviction.

- 3. We sentence appellant no. 2 to a term of 13 years and 11 months' imprisonment to be served from the 05^th day of May 2017, the date of conviction. - 4. We sentence appellant no. 3 to a term of 13 years and 11 months' imprisonment to be served from the 05^th day of May 2017, the date of conviction. - 5. We sentence appellant no. 4 to a term of 13 years and 11 months' imprisonment to be served from the 05^th day of May 2017, the date of conviction. - We so order. 485

Signed, dated and delivered at Mbale this . 15... day of Septem Lev. 2020.

REDRICK EGONDA-NTENDE

**Justice of Appeal**

**BARISHAKI CHEBORION Justice of Appeal**

MUZAMIRU KIBEEDI **Justice of Appeal**

Ŧ