[2023] UGCA 200

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# ⁵ THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: R. Buteera, DCJ, C. Gashirabake, JA, Kihika, JA.)

### CRIMINAL APPEAL NO. 456 OF 2016

(Arising from Criminal Session No. HCT-00-CR-CS-0 I 47/20 I I )

#### BETWEEN

## SSEMAGANDA SPERITO & ANOR..... .......... APPELLANT

AND

UGANDA.... ...... RESPONDENT

(Appeol from the Judgment of lhe High Court oJ Uganda Holden at Kampala, by Rugodyct Awoki. J. delivered on llth February. 2011) 15

### JUDGMENT OF COURT

#### Introduction

1.] The appellants were indicted for murder contrary to sections 188 and 189 of the Penal Code Act Cap 120. They were tried and convicted of murder by the High Court sitting at Luwero and sentenced to 50 years' imprisonment on 14th February 2014.

The facts as ascertained from the court record are that on the 28th March 201 l, the appellants while at Maya village in Luwero District, with malice aforethought, murdered Kayizi Lozio (the deceased). Each appellant denied the offence. It was the prosecution's case that Kayizi Lozio went missing when he spent the night away from his home.

The family started looking for him in the early moming of 28'h March 201L They observed a pool of blood on the road side some 100 meters f'rom their

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⁵ home. They followed the trial of the blood and some 7 or so meters from the road, discovered the body ofthe deceased.

> Later that morning, a traditional healer reported to the police that two men (appellants) were in his shrine for spiritual cleansing having killed their brother, a one Kayizi Lozio, who had been bewitching them. That he (the deceased) had killed some of their relatives already including their brother. Police arrested the two appellants from the shrine ofthe traditional healer and charged them with murder.

- 2.1 The appellants being aggrieved with the decision of the High Court lodged an appeal in this court. The appeal is premised on five grounds set out in the Memorandum of appeal as follows; 15 - l. The learned tial Judge erred in law and fact when he relied on circumstanlial evidence lo convict the appellants thus causing a miscorriage ofiustice to the appellanls. - 2. That the learned trial judge erred in low andfact when he held that appellanls Alibi had been discredited which occasioned a miscarriage ofjust ice. - 3. The learned trial Judge erred in law and fact when he tried and convicted lhe 2"d appellant without making an inquiry into his age and thus convicted him as of majorily age when the evidence on record showed that he was below l8 years al the time ofthe ofence. - 4. That the leaned trial Judge efied in law and.fact when he sentenced the appellants following a wrong principle of law. - 5. The learned tial Judge erued in law and fact in sentencing the oppellants to a manifestly harsh and excessive sentence which did not take inlo occount the mitigating factors thereby occasioning a miscarriage ofjustice.

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## s Representation

3.] At the hearing of the appeal, the appellant was represented by Ms. Maureen Kemigabo, while the respondent was represented by Ms. Happiness Ainebyoona, a Chief State Attorney.

### Ground one

### 10 And

### Ground Two

### Case for the appellant

4.1 Ms. Kemigabo submitted that the learned trial judge erroneously relied on circumstantial evidence of PW3, Mutyaba Muwanga, who testified that the l't Appellant informed him that he and the 2nd appellant had participated in

the murder of the deceased.

It was submitted that Mr. Mufyaba Muwonge could have gotten the information regarding the events of the day and the circumstances surrounding the death of Kayizi Lozio from any other person, even from Pw5 (Mastula Nalongo Nabirye, wife of Kayizi Lozio.

Furthermore, Ms. Kemigabo submitted that it was erroneous for the trial Judge to rely on the evidence of Pw5 because it did not show evidence that she was chased away from her matrimonial home by anybody. Besides, the two appellants were arrested in the aftemoon of 28th March 201I and the deceased was murdered on the moming of 28th March 201 1.

In counsel's view, it was erroneous for the trial Judge to consider the existing grudge between the brothers. That this was presumed to have been exacerbated when the father gave the deceased land that was assumed to be theirs. Counsel argued that this grudge would go either way.

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- ⁵ 5.1 Ms. Kemigabo citing Sekitoleko vs. Uganda I1976l E. A 531, submitted that the matter should be resolved in the interest of the appellants since there is established doubt in the prosecution case. - 6.] On the issue of alibi, it was submitted that the evidence of PW6, the investigating Officer, did not ascertain whether the two appellants were in their respective homes on the night when the deceased was murdered. That A1 testified that he was at his home all night of 27th March 201 I and in the moming of 28th March 201 I . That this was not cross examined upon and as such, it ought to be taken as the truth. counsel cited Bogere and Anor vs. Uganda, Supreme Court Criminal Appeal No. I of 1997,, and prayed that this court finds that the appellants' alibi was not destroyed by prosecution.

#### Case for the respondent

- 7.] The respondent raised a preliminary point of law, that grounds 3, 4 and ⁵ offend rule 66(2) of the Judicature (Court of Appeal Rules) Directive S.l l3- 10, for not being concise but rather narrative and argumentative. In Ms. Ainebyoona's view, ground 4 was not specific on the exact points of law of fact the appellants contend were wrongly applied. Counsel cited Sseremba Dennis vs. Uganda Criminal Appeal No. 480/2017. - 8.] On the merits of the appeal, Ms. Ainebyoona handled ground I and 2 jointly. It was submitted that it has been found that circumstantial evidence the best evidence. To buttress her assertion, counsel cited Akbar Godi vs. Uganda C. A. CA, No.20ll. - 9.] Additionally, counsel cited Simon Musoke vs. R [958] E. A775, where the East African Court of Appeal hetd that before a court relies on circumstantial evidence, it must be established that it was incompatible with the innocence

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- of the accused and incapable of explanation upon any other reasonable hypothesis than that ofguilt. - 10.] It was counsel's view that the overwhelming circumstantial evidence adduced by the prosecution, and not controverted by the defence, rebutted the alibi. She cited Bogere and Another vs. Uganda (Supra), where court assessed what amounted to putting an accused person at the scene of crime. - ^Il.] Counsel concluded that the trial court properly evaluated the evidence and came to the right conclusion.

### Consideration of Court

12.) The respondent raised a preliminary objection that grounds 3,4 and ⁵ offended rule 66 (2) of the Court of appeal Rules. This Rules provides that; 15

> "The memorandum of appeal shall set .forth concisely and under distincl heads numbered consecutively, withoul arflument or narrative, the grounds of objection to the decision appealed against, specifuing, in the case of afirst appeal, the points of lat'or.fact or mixed law and fact and, in the case ofa second appeal, the points of law, or mixed lsw andJact, which are alleged to have beenwrongly decided, ond in a third appeal the motters qf law oJ' great public or general importance wrongly decided. "

We agree with the respondent that impugned grounds 3,4 and 5 offend rules 66(2) ofthe Rules ofthis court. But by virtue ofthe powers ofthis court under rule 2(2) to make such orders to meet the ends ofjustice, we will proceed and consider the grounds.

l3.l We note that the trial Judge acknowledged that this case was premised on circumstantial evidence. The trial Judge was very alive to the principles goveming circumstantial evidence which is capable of being manipulated.

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- ⁵ The triat Judge was guided by the position of the law set down in Simon Musoke v. R [f9581 8. A775 and Teper v R 2 [952lAC 480. - 14.) These two grounds invite this court to reestablish whether the appellants actually participated in the murder of Kayizi Lozio. The prosecution case rested on the evidence of PW3, PW4 and PW5. - l5.l PW3, testified that he had been a traditional doctor since 1988. He stated that on the 28103/201 1 at around I I :00am, A I (2"'r Appellant) entered his shrine and asked for private service. He testified that Al came to be cleansed and kill the case against him and A2(first Appellant) having killed his brother. PW3, however refused to attend to him until A2 had come. Due to that condition, Al telephoned A2 to find him at PW3's home. When ,A.2 came, PW3 excused himself to go and pick the medicine to work on them. He locked them in his shrine. He run to police and informed them about Al and A2. The police came and arrested them. 10 15 - 16.l Whereas PW4 testified that when they had come back from the scene of crime, the DPC informed him that PW3 who was a traditional healer had two boys suspected to have committed murder from Butuntamila sub county. He stated that they entered a grass thatched house where he found 2 people who identified themselves as Kayizi and Ssemaganda. - 17.) PW5, stated that Al was present when they discovered the deceased but when the police came he disappeared. Whereas A2 never surfaced. PW5 testified further that they always had a bad relationship with the appellants. Al was a nephew to the deceased and A2 a step brother to the deceased. That on another occasion, Al had seriously assaulted the deceased on the head. That there was an incident he was assaulted because his father gave him a piece of land where he built.

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⁵ 18.] On the other hand, the defence rested their case on the two appellants. They did not call other witnesses. A I (2nd appellant), testified that he heard the voices from the scene of the crime at 8:30am and he went there. That there was need for money to transport the body from the mortuary to home, so they started looking for money. In search for money, A,2(l't appetlant) told him to take him to his friend from whom he was demanding money but had no transport. So he took him on his bicycle. That when they reached, the said man said he needed to get the money from someone he lent it. So he left them home to go and pick the money. 10

He testified that when this man retumed, just before giving them the money they were asked to come out. When they got out, they found 6 men waiting for them. They got arrested.

A2 testified that on the 2810312021, while at home, Lusi Nabakoza of Kasana rang him that the sister asked to take her to the police. He rode his bicycle to the police. That from the police they went to the scene of the crime. That there, he met A1 and they flrrst went to get money from PW3 in Luwero but he was not there, so they retumed to Kito. In his testimony, ,{2 stated that the body was found at 6am but he first went to police before going to the scene at around I lam.

19.] The issue for this court is to determine whether the leamed trial Judge erred in law in relying on the circumstantial evidence and that it properly placed the appellant at the scene of the crime. We have carefully studied the couft record, submissions presented for each party and the law and authorities cited. We are mindful that as a first appellate court, our powers are spelt out in Rule 30(t)(a) of the Judicature (Court of Appeal Rules) Directions S. I 13-10. We are required to carefully and critically review the record from the

Court below to reappraise the evidence and make inferences of fact, but TlPage w-

- careful not to disregard the decision of the High Court. See Kifamunte Henry vs. Uganda. S. C Criminal Appeal No.l0 of 1997. - 20.1 The law on circumstantial evidence was stated in Byaruhango Fodori vs. Ugando, S. C. Crim. Appeal No. 18 of 2002; 120051 I U. L. S. R. 12 atp. 14, where the Supreme Court of Uganda spelt out that: -

\*h is lrite law that where the proseculion case depencls .solely on circumstantial evidence, the Courl must, be.fore deciding on a conviclion, ./ind that the inculpatory Jacls are incompatible with lhe innocence of the accused and incapable oJ explunalion upon any olher reasonoble hypothesis than that of guilt.

- 2l.l The Court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt. (See S. Musoke vs. R Il958l E. A. 715; Teper vs. R. ll952l A. C. 480)." In addition to this, in the case of Tindigwihura Mbahe vs. Uganda S. C. Crim. Appeal No. 9 of 1987, Court issued a waming that circumstantial evidence must be treated with caution, and narrowly examined, because evidence of this kind can easily be fabricated. Therefore, before drawing an inference of the accused's guilt from circumstantial evidence, there is compelling need to ensure that there are no other co-existing circumstances which would weaken or altogether destroy that inference. 15 - 22.1 Circumstantial evidence should be assessed with an open mind to the prosecution's assertions which may be informed from the evidence. There is need for reasonable possible interpretation ofthe evidence. In doing this the basic question is whether the circumstantial evidence in light of human experience is reasonably capable of supporting the inference other than that the accused is guilty. Court must be satisfied beyond reasonable doubt that 30

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- ⁵ the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. - 23.1 The evidence on record is to the effect that the deceased was found dead at 6:00am, 100 meters away from his home. PW 5 stated that at night while waiting for the husband she heard voices from out. But her husband never tumed up. - 24.) PW 3 testified that Al came to his shrine to'kill'the case against him and his brother after killing their brother. Which is contrary to what the appellants stated. They said they went their because A2 demanded some money from PW3. - 25.) The conduct of Al and A2 and the reason they gave was unreasonable in the circumstances of this case. Al and A2 were blood relatives with the deceased. As a matter of fact, Al was a nephew to the deceased and ,A.2 was his half-brother. The evidence on record shows that the deceased was discovered at 6:00am, however the appellants did not come immediately. A1 says he got to know at 8:30am, that is when he went to the scene of the crime. Whereas ,A.2 first went to police then came at around I lam. This is not conduct of an innocent party. This being family, you would expect them to have been proactive. Al in his testimony seemed to be unbothered by the whole incident. He did not care to find out who discovered the deceased, and when he was discovered. 15 20 - 26.1 The history of their relationship is indicative of the guilt of the appellants. It was said by PW 5 that they always had fights because they were a polygamous family. That there were accusations that the deceased had killed Al's father. Pw5 stated that at one time A1 seriously injured the deceased on the head. This evidence was not disputed by the appellants. It is evident that there had always had been a bitter relationship. This actually

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- 27.] The conduct of running to a known traditional healer at the moment when the family needed their help was consistent with the fact that they wanted to destroy the evidence. It is evident that Al was at the scene of the crime until he saw a sniffer dog had identified a wrong person so they needed to destroy the evidence. - 28.] This court agrees with the finding of the trial court that the evidence of the defence was full of falsehood when weighed against the evidence ofthe prosecution. For instance, Al testified that they just rode to PW3's home directly whereas ,{2 in his testimony said he first went to Luwero town to PW3's business but since he was not there, they decided to go to his home. Secondly Al testified that he gave A2 alift. because he had no transport. This is contrary to what ,A'2 told court. ,A.2 stated that he rode his bicycle from home to police and from police to the scene of the crime. The other was that Al stated that he did not know the money A,2 demanded from Pw3. Yet A2 stated he told him. These contradictions are not minor. The law on contradictions is very clear.

On the issues of alibi, the prosecution was able to place the appellants at the scene of the crime through the evidence ofthe prosecution as a whole. This was satisfactorily handled by the trial Judge. We find no reason to fault the trial Judge.

Grounds I and2 fail.

Ground 3

The learned trial Judge erred in law and fact when he tried and convicted the 2nd appellant without making an injury into his age and thus

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⁵ convicted him as a majority age when the evidence on record showed that he was below 18 years at the time of the offence.

### Submissions of the appellant

29.1 It was submitted that the 2nd appellant raised the fact that he was bom in 1994 and that the prosecution did not challenge the same. Citing Sserubega vs, Uganda, Appeal No. 147 of 2008, counsel prayed that this court finds that the 2"d appellant was 17 years at the time the crime was committed.

It was submitted that the 2'd appellant's rights were violated when the provisions of the Children's Act were not invoked on procedural and substantive law. Counsel cited Tayebwa Isaac vs. Uganda, C. A. C. A No. 0174 of 2013 to buttress his submissions.

Counsel prayed that this court be pleased to quash the conviction or find that the 2nd appellant was tried and convicted under the wrong statute and be released owing to the period spent on remand.

# Submissions for the respondent

30.] Counsel for the respondent submitted that the 2'd appellant was rightly tried and convicted as an adult, P24 on which the 2"d appellant was examined and admitted as PE 2 in the preliminary hearing as agreed evidence, and the 2nd appellant signed on the memorandum of agreed facts. Counsel cited section 66(3) of the Trial on Indictment Act, which is to the effect that any fact or document admitted or agreed in a memorandum under section 66 shall

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# ⁵ be deemed proved. This was further amplified in Abasi Kanyike vs. Uganda [1ee3l KALR PG.rs

# Consideration of Court.

- 31.] We agree with the position of the law as stated by counsel for the appellants regarding the trial of minors in capital offences. We, however, do not agree that the position of the law applies to the circumstances before this court. - 32.1 It is evident on record, from documents which were not disputed by the appellants, that according to the indictment the appellants committed the said offence on the 28th March, 201 I . Eight days later on the 04th April the 2nd appellant(A1) was examined on PF 24 by a government doctor who found that he was 20 years of age. - 33.] We find that the court convicted the 2"d Appellant under the proper procedure and law. The evidence on form PF24 was accepted in evidence without dispute as proofof actual age of the 2nd appellant as 20 years. - Ground 3 has fails 20

### Grounds 4 and 5

That the learned trial Judge erred in law and fact when he sentenced the appellants following a wrong principle of law.

And

- The learned trial Judge erred in law and fact in sentencing the appellant to a manifestly harsh and excessive sentence which did not take into

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# ⁵ account the mitigating factors thereby occasioning a miscarriage of justice.

These will be considered concurrently since they all concem sentencing.

# Submissions by counsel for the annellant

- 34.1 On issue 4, counsel for the appellant submitted that the trial Judge ought not to impute that the convict was not repentant or remorseful. Counsel cited Kakooza Livingstone vs. Uganda, [19971 SCCA 1711993, where court held that the trial court erred in applying a wrong principle of law while sentencing the accused when the court took into account lack of remorsefulness on the part of the accused. Counsel noted that this was a material irregularity by the trial Judge. Counsel relied on the case of Kiwalabye Bernard vs. Uganda, Criminal Appeal No. 143 of 2001. - 35.] On issue 5, it was submitted that the trial Judge erred when he made ^a procedural irregularity when he first considered the period spent on remand before sentencing the appellants. Counsel stated that the sentence offended Article 23(8) of the constitution of the Republic of Uganda and Rules l5(2) of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Direction),2013. Counsel cited Umar Sebidde vs. Uganda SCCA No.23 of 2002, where court held that the time spent on remand must be considered while sentencing. - 36.] Counsel further submitted that the sentence handed down to the appellants was harsh and manifestly excessive in the circumstances. lt was submitted that the trial judge did not consider the mitigating factors, if he had done so he would have come to another conclusion. 25

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⁵ That the trial Judge ought to have considered the fact that the appellants were first offenders. That it is a rule that first offenders do not receive the maximum sentence. Counsel cited, Ederema Tomasi Uganda, Criminal Appeal No.554 of 2014, Josephine Arissol vs. R [ 19571 E. A 447, Ainobushobozi vs. Uganda, Crim. Appeal No. 241 ol 2014 and Francis ¹⁰ Bwalatum vs. Uganda, J20l4l C. A Criminal Appeal. No. 48 of 2011.

> The trial Judge also failed to consider the fact that the appellants were youthful (See, Kabatera Steven vs. Uganda, Cr. App No. 123 of 2001). That the appellants have capacity to reform, family responsibility.

Counsel further argued that the trial court ought to have been guided by the principle of uniformity. Counsel cited Bbale Godfrey vs. Uganda, CACA No, 324 ol 2014 sentence was reduced from 45 to 18 years, Tumwesigye Anthony vs. Uganda, CACA No. 46 of20l2, sentence was reduced from 32 years to 20 years, Mutatina Patrick & Another vs. Uganda, CACA No, 137 ol20ll, sentence was reduced from 25 to 20 years.

#### 20 Submissions by counsel for the resrrondent

37.1 On ground 4, counsel for the respondent opposed this ground and stated that the appellants' contention that the trial Judge indicating that the appellants were not remorseful was a material inegularity is devoid of merit. That the trial Judge properly considered both the mitigating and aggravating factors and came to the right conclusion. That the lack of remorse was considered against the appellants' lack ofcare ofhuman life, particularly that the deceased stomach had been cut and the intestines were also cut into pieces and the circumstances under which the offence was committed were bizarre.

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⁵ 38.] In response to issue 5, counsel for the respondent stated that the trial Judge considered both mitigating and aggravating factors. It was further submitted that the sentence imposed upon the appellants was legal since court appropriately exercised its discretion.

# Consideration of Court

39.] It is a well-established principle ofthe law that an appropriate sentence is a matter of the discretion of the sentencing Judge. Each case presents its own facts upon which the Judge has to exercise their discretion. It is further established that the appellate court will only interfere with the discretion of the trial court if the sentence is illegal or it is harsh or manifestly excessive. 10

(See Kiwalabye vs. Uganda SCCA No. 143 of 2001)

40.] This court was tasked with establishing whether the trial Judge followed the right principles while sentencing. Principle 20 of Part VI of the Sentencing guidelines (Supra), provides for the aggravating factors to be considered where there is death. While sentencing the leamed Judge held that;

> "The rwo accused persons were convicled of murder. They killed lheir close relalive. The circumslances under which the ofence wos commilted were bizarre. They sfutwetl lack of remorse or care ./b, human life. The deceased's slomoch was cut and intestines were olso cut into pieces. lf one was to die.from it, they ensured thot this happened. Thal was rage and onger in the extreme."

41.] It has been held that it is not appropriate for ajudicial office to consider lack of remorse as an aggravating factor. Whereas as remorsefulness can be used as a mitigating factor the lack of the same cannot be used as an

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aggravating factor. The use of lack of remorsefulness as aggravating factor would fetter the right of appeal. This was well-articulated in **Mattaka v.** Republic (1971) E. A. 495 at page 512,

> "A person who has pleaded not guilty and has maintained his innocence throughout and who intends to appeal cannot be expected to express repentance, which would found guilty may believe himself innocent, as a matter of fact or law, and that belief may be upheld by an appellate court. If however lack of repentance would be treated as an aggravating factor, the right of appeal would be fettered, because the convicted person would, in effect, be put to a choice, whether to risk a heavier sentence by maintaining his innocence or to abandon his right of appeal in the hope of leniency."

- Regarding this we would therefore find that it was inappropriate for the $42.$ trial Judge to consider the lack of remorsefulness as one of the aggravating factors. However, the appellant did not demonstrate how this has led to a miscarriage of justice. The trial Judge considered other aggravating factors other than lack of remorse by the appellant. The Judge considered the fact that the deceased was they close relative, the stomach was cut and the intestines were cut into pieces. It is therefore evident that the Judge considered other factors other than lack of remorse. - According to the record, the Judge clearly stated that he considered the $43.]$ years spent on remand. That was sufficient. It has to be noted that this matter was decided on the 14^th February 2014 before the principle in the **Rwabugande Moses vs. Uganda Supreme Court Criminal Appeal No. 25** of 2014, was established. The principle therein is to the effect that the Judge while sentencing must arithmetically remove the years spent on remand. This

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principle was established in 2017 way after this matter was decided. $\mathsf{S}$ Therefore, the law cannot operate retrospectively. It suffices that the Judge considered it while sentencing as was the legal principle in operation at the time.

$44.$ Turning to whether the sentence is harsh or excessive, the court is guided under 19 $(1)$ of the sentencing guidelines to consider the sentencing range specified in Part I of the Third Schedule in determining the appropriate custodial sentence in a capital offence.

Furthermore, under subparagraph $(2)$ of paragraph 19, in a case where $45.$ a sentence of death is prescribed as the maximum sentence for an offence, the court shall, considering the factors in paragraphs 20 and 21 determine the sentence in accordance with the sentencing range.

$46.]$ According to the third schedule the sentencing range for murder after considering both the aggravating and mitigating factors is 35 five years. In addition to the above guidelines this court is guided by paragraph $6$ (c) of these guidelines, which provides that court should be guided by the principle of consistency while handing down a sentence to a convict.

- $47.1$ In Opolot Justine & Another vs. Uganda, SCCA No. 20, 2014, where the Supreme Court confirmed a sentence of life imprisonment. In **Paul** Kibolo Nasimolo vs. Uganda, SCCA No. 46 of 2017, a sentence of death was substituted with a sentence of life imprisonment for murder. Relatedly, in Kaddu Karule Lawrence vs. Uganda, SCCA No. 72 of 2018. The appellant in this matter hacked of his former partner to death with a panga and he was sentenced to death. On appeal this court substituted his sentence of life imprisonment which was upheld by the Supreme Court. - The sentencing guidelines permit us to consider the circumstance and $48.]$ nature of crime committed while sentencing, as well as the ruthlessness with

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- which the offender committed the offence. From the record, the accused persons not only stabbed the victim resulting in the intestines coming court of the victims 's body, but went ahead to cut the said intestines. This was in our view ruthless in the extreme. Having found that the trial Judge did not fault any sentencing principles, this court finds that this appeal does not have 10 merit. - 49.1 The sentence is upheld - 50.] Consequently, this appeal is dismissed.

15 We so order

h Dated at Kampala this dayof.... 2023

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

t

²⁵ CHRJSTOPHER GASHIRABAKE

JUSTICE OF APPEAL

V

OS Htx-d: JUSTICE OF APPEAL

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