[2024] UGCA 315

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KABALE CRIMINAL APPEAL No. O23 OF 2015

(Coram: Kibeedi, Gashirabake & Kihika, JJA)

## TWIKIRIZE ERIAS KIBOBU : : : : : : : : : :: : :: : : : : :: : : : : : : :: :: : : : : : APPELLANT VERSUS

UGANDA : : : : : : :: : : : : : : : :: :: : : : :: : : : : : : : :: :: : : : : : : : : : : : RESPONDENT

(Appeal from the decision of the High Court of Uganda Holden at Rukungii in Ciminal Session No. O54 of 2O12 before Hon. Justice Micheal Elubu dated 15/01/2015)

#### JUDGMENT OF THE COURT

## Introduction

The appellant was indicted of the offence of Murder contrary to sections 188 and 189 of the Penal Code Act, Cap 12O Laws of Uganda. He was convicted and sentenced to 3Oyears imprisonment.

#### Background

A brief background as ascertained from the record is that; On the night of the 16th day of October, 201O a one TWINAMATSIKO AMON was killed from his house at Kagashe village Bugangari Subcounty Rukungiri district. The following morning the body was found lying on a bed in a pool of blood. The incident was reported to the police at Bugangari police post. The scene of crime was visited and investigations begun. Earlier on the fateful day the appellant

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had found the deceased weeding and made a remark that the deceased had a lot of money yet he weeds like women. He went on to say that he could not eat all the money he had and finish it. The appellant also on the same day told the area LC1 Chairperson that he was broke and that he would attack someone and grab money from him. Basing on the above remarks, the appellant was suspected and arrested. A search thereafter was conducted in the appellant's premises and a blood- stained blue jean trouser was recovered from his house. He had been seen putting on the same trouser on the fateful evening. When he was interrogated at police, he admitted that it was his trouser. The appellant was subsequently charged with murder. The Post-mortem examination revealed that the cause of death was fata-l haemorrhage secondar5r to severing of right blood vessels by a sharp weapon. The appellant was indicted and convicted for the offence of Murder and sentenced to 30 years' imprisonment. Being dissatisf,ied, the appellant appealed to this court against conviction and sentence on two grounds.

## Grounds ofAppeal

- 1. The Learned Trial Judge erred in law when he failed to properly eva1uate evidence on record thereby convicting the appeliant based on Government Ana-lyst's evidence and insufhcient circumstantia-l evidence which occasioned a miscarriage of justice. - 2. The Learned Trial Judge erred in law and fact when he sentenced the appellant to a manifestly harsh, and excessive

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sentence of 30 years thereby occasioning a miscarriage of justice.

#### Appearances

At the hearing of the appeal, Mr. Kibulirani Nicholas appeared for the appellant on state brief while Mr. Innocent A1eto, Senior State Attorney, appeared for the respondent. Both counsel filed written submissions as directed by the court.

#### GROUND 1

The Learned Trial Judge erred in law when he failed to properly evaluate the evidence on record thereby convicting the appellant based on Government Analyst evidence and insuflicient circumstantial evidence which occasioned ^a miscarriage of justice.

## Submissions for the Appellant

Counsel submitted that the decision by the learned trial judge was arrived at purely basing on circumstantial evidence. He submitted that the trial judge relied on previous threats which were not substantiated. Counsel relied on the case of; Magemeso Mohamed v Uganda Criminal Appeal No. 235 of 2O11 for the proposition that evidence of prior threats to kiIl cannot stand on its own, it requires corroboration and that it has to be consistent. It was further contended that the circumstantial evidence did not point to the guilt of the appellant. Counsel cited the case of; Bogere Charles v Uganda, Supreme Court Criminal Appeal No. OlO of 1998;

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where the supreme court referred to a passage in Taylor on Evidence 1lth Edition, page 74 which states: "The circumstances must be such as to produce moral certainty to the exclusion of every reasonable doubt." It is the appellant's submission that there was no proof of grudge between the appellant and deceased to make formidable circumstances and justifi cation.

Counsel submitted further that in the course of investigations, there was recovery of a trouser allegedly worn by the appellant prior to the killing of the deceased and the same trouser was seen by some other person in the house of the appellant at the time. It was the submission of the appellant's counsel that there was no proof to show that the said trouser belonged to the appellant. The appellant's counsel contends that such an allegation by the LCl that the said trouser is one that the appellant wore the previous day is hearsay and to that extent it shouldn't have been submitted to the Government Analytica-l Laboratory for examination.

#### The respondent's submissions

In reply, the respondent's counsel submitted and agreed w'ith the appellant's counsel that the evidence at trial was entirely premised on circumstantial evidence which pointed to no other h5rpothesis, other than the guilt of the appellant. He further submitted that ttre prosecution produced many witnesses and arnong the many was PW3 Twikirize Medard, who was a brother to the appellant and who used to reside with the appellant. He testified that on 17tt October, 2010, the appellant returned home at 5:3Oam and went to bed. It

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was the submission of the respondent that such evidence was never challenged during cross examination. The learned Trial Judge relied on evidence of the blood stained jean trouser that belonged to the appellant, which was recovered from his bedroom on the 18n October, 2010 by the LC1. PW5 testified that they recovered the appellant's trouser with blood stains in his house in the presence of PW3 his brother.

Counsel further submitted that PW5, the LCl Chairman testified that he was with other people when they recovered the jean trouser from the appellant's house. PWS additionally testified that he had seen the appellant putting on the said jeans the previous day and the evidence was corroborated by the testimonies of PW6, PW7 and DWl. It was submitted for the respondent the appellant admitted that the jean trouser that was exhibited at police belonged to him.

Additionally, the Counsel for the respondent submitted, that the chain of evidence with regard to the custody of the blood stained trouser was not broken as seen from the testimonies of PW5 and PW6 who testified that the trouser belonged to the appellant. It was submitted that the trial court relied on credible circumstantial evidence thereby hnding the appellant guilty of the offence charged.

#### Consideration by Court

We are a-live to the duty of this court as a 1\$ appellate court, to reevaluate the evidence and make its own inference on issues of fact and law. Rule 3O(1)(a) of the Judicature (Court of Appeal Rules) Directions, S. I 13-10, See alsol Fr. Narcensio Begumisa & Ors v

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# Eric Tibebaaga SCCA No.17 of 2OO2, Kifamunte Henry v Uganda SCCA No. 10 of L997, and Pandya Vs R [195fl EA 336.

We shall resolve both grounds of appeal separately.

## Consideration of ground ¹

It is trite law that the prosecution has the duty to prove each element of an offence beyond reasonable doubt. For the Appellant to be convicted of murder, the prosecution must prove, beyond reasonable doubt the following elements;

- 1. That there was death of a human being. - 2. The death was caused by some unlawful act. - 3. The unlawful act was actuated by malice aforethought; - 4. It was the accused who caused the unlawful death.

In the present case, it is not in dispute that TWINAMASIKO AMON is dead or that his killing was unlaw{ul. A post mortem report marked PEl was exhibited, wherein the cause of death was stated to be caused by fatal haemorrhage secondary to severing of right blood vessels by a sharp weapon.

In this ground of appeal, the appellant faults the iearned trial Judge for convicting the appellant having relied entirely on circumstantial evidence. It is not in dispute that the case against the appellant depended essentially on circumstantial evidence in that nobody saw the appellant murdering the deceased.

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The prosecution produced evidence of 08 witnesses to place the Appellant at the scene of crime. PW1 was Medical Doctor who conducted the Post-mortem report and it is exhibited PEl. PW2 a mother to the deceased who lived with her deceased son in the sarne compound, did testify that on the 17th day of October at about 7:OOam she went to greet her son and upon calling him she received no response which prompted her to enter into the house only to find the deceased's lifeless body stark naked on his bed. She raised an alarm where upon the father and other residents came running to the scene.

PW3 a cousin brother to the appellant testified that he used to stay with the appellant and that on the fateful day, the appellant did not sleep home. In the morning at about 5:0Oam, the appellant came back home and called out to PW3 who woke up and opened for him and went back to sleep. There after he heard an a-larm and he went to the home of PW2 where he found Amon (the deceased) dead.

The prosecution a-lso produced PW4 who testified that he was with the deceased and another person weeding beans the previous day and he found the appellant who commented that the deceased should not be doing this kind of job given the fact that he had a lot of money. PW5 the LC 1 Kagash of Bugangari parish, also testified that on 17 l1Ol2O7O, he heard an a-larm at around 7:O0am. He went to where Amon (the deceased) used to stay, he entered and saw the dead body. The appellant, who at that time was present together with other suspects were arrested.

UYnl Page 7 ol 14 PW3 led PWS and others to carry out a search of the appellant's house, where they found the appellant's blood stained trouser which was then taken taken to police.

PW6 testified that he too equally responded to the alarm together with other residents and immediately started hunting for people who were suspected to have committed the crime. When they recovered a blood stained trouser from the appellant's bedroom, which he was putting on the previous day, PW5 told him to take it to police.

PW7 who was an investigating officer testified that he went to the scene of crime with the DPC of the area together with DR. Musiimenta PW1. They found the naked body of the deceased lyrng on the bed with his neck cut. PW7 obtained statements from family members, and he got samples from the body for analysis. PW8 a government chemist did carry out DNA analysis and recorded DNA profiles from all 3 exhibits "D',"K', and "S". He compared the DNA profile from the jean trouser against the deceased TWinamasiko and profile of Twikirize aka Kiboobu (the appellant) and confirmed that the DNA profile from the jean trouser did match a-11 the loci positions.

It is trite 1aw that where the prosecution ^c ^e depends solely on circumstantial evidence, the court must, before deciding upon a conviction, lind that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The court must be

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sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt.

# See; S. Musoke V R [1958] EA 715 and Teper V R [19521 AC 48

Regarding the issue raised by the appellant that the chain of evidence in respect to movement of the exhibit jean trouser was broken, we take note of the evidence of PWS and PW6 who testified that they recovered the jean trouser from the appellant's house and that the said jean trouser belonged to the appellant. PW5 further testified that he had seen the appellant the previous day wearing the same pair of jean trouser and this evidence is corroborated with the evidence of PW6 conlirming that the appellant wore the same trouser the previous day and that it was PW6 who took the trouser to the police. Further still the appellant confirmed that the jean trouser that was exhibited at police PE3, belonged to him.

Given the evidence a-forementioned, it is our considered view that the claim that the chain of movement of the exhibited trouser being broken cannot be sustained. Be that as it may, even the findings of the Government Chemist who carried out a DNA analysis and recorded DNA profiles from all 3 exhibits "D", "K",and "S", did compare the DNA profi1e from the jean trouser against the deceased Twinamasiko and prolile of Twikirize aka Kiboobu and confirmed that the DNA profile from the jean trouser did match in all the loci positions. That is to say that the blood stains on the appellant's trousers matched that of the deceased's blood type.

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In the instant case, the circumstantia-l evidence upon which the appellant was convicted is contained in the evidence of the witnesses as laid out above. Having re-evaluated the circumstantial evidence relied upon by the learned trial Judge to convict the appellant, it is our finding that the pieces of circumstantial evidence produced by the prosecution squarely placed the appellant at the crime scene and we find no reason to fault the finding of the learned trial Judge.

Consequently, ground 1 of this appeal lails.

#### GROUND 2

The Learned Trial Judge erred in law and fact when he sentenced the appellant to a manifestly harsh, and excessive sentence of 30 years thereby occasioning a miscarriage of justice. 'Y,-!

## Submission for the appellant

It was submitted that the appellant was sentenced to 30 years' imprisonment which was harsh and excessive. It was the appellant's submission that in cases that are purely based on circumstantial evidence, courts have been a bit lenient when handiing down sentence. Counsel further submitted that courts are enjoined to ensure consistency in sentencing. It was the appellant's prayer that this court reviews the sentence and reduce it to conform to uniformity, consistency and leniency.

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## Submissions for the respondent

In reply counsel for the respondent argued that the trial court has the discretion in passing a sentence and that the appellate court can only interfere where the trial court exercises its discretion wrongly. It was submitted for the respondent that the appellant was convicted and sentenced to 30 years'imprisonment and that the 30 years fall way far below the starting range of 35 years. Counsel relied on Third Schedule part 1 of the sentencing Guidelines. The respondent submitted that the sentence passed was well within the precincts of the law and prayed that court dismisses the appea-l and uphold both the conviction and sentence of the trial court.

## Consideration of Ground 2

We are guided by the principles laid down by the Supreme Court in Kamya Johnson Wavamuno v Uganda SCCA No. 16 of 2OOO where the court held that,

u... it is well settled that a court of appeal ulll not lnterfere uttth the exercise of discretion unless there has been a Jailurc to take into account a materiql consideration, or an error in prtnciple was mq.de.u

See also Sekandi Hassan v Uganda SCCA No.25 of 2019, Livingstone Kakooza v Uganda SCCA No. L7 of ¹⁹⁹³ [unreported] and JacksonZita v Uganda, SCCA No. 19 of 1995.

Counsel aLso contended that the sentence issued was harsh and excessive. In his sentencing orders the Learned Trial Judge held that,

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"The convict is treated as a first- time offender. The court notes the length of the time that he has spent on remand. He was a young man when this offence was committed. At 25 years there is still room for reform. I note that the deceased was slaughtered brutally and died like an animal. His neck was targeted and then cut savagely. The deceased was an enterprising young man profession and an example and source of support to his family. This country through the actions of the convict lost a youthful member of the society. The community and family feel his loss <ieeply. The offence of murder is rampant in the region. In this session alone statistics show it. Therefore, a strong deterrent message ought to be sent out to the community. The convict has not shown remorse for his actions and still persists his innocence. He must be punished for his actions although he is still a young man a custodial sentence is proper in this case. This offence carries a maximum sentence of death. The starting point is 35 vears and the state prayed for So5rears, defence for leniency and the victim family for life imprisonment. I find all then inappropriate I have taken into account the period spent on remand and I deem a sentence of3O yea appropriate."

After putting into consideration, the mitigating and aggravating factors, the Learned Trial. Judge sentenced the appellant to 30 years' imprisonment.

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According to the third schedule of the Sentencing guidelines, the sentencing range for the offence of murder is 30 years to death sentence after considering the mitigating and aggravating factors. In the matter before us, it is evident that the Learned Trial Judge issued a sentence of 30 years, which is iessor than the maximum penalty after accessing all factors.

The learned trial Judge considered both the mitigating and aggravating factors and passed a sentence consistent with previous decisions of this court. Without proof that the learned trial Judge acted on a wrong principle or ignored some material factor, this court would have no lawful reason to interfere with the decision of the learned sentencing judge.

Having found that all the grounds of appeal have no merit, this appeal accordingly fai1s. The conviction and sentence are hereby upheld.

We so order

Delivered and dated this day of 2024 HON. JUSTICE MUZAMIRU M. KIBEEDI ^r--A ilUl Ju,ll/

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HON. JUSTICE CHRISTOPHER GASHIRABAKE

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Binh $\sqrt{ }$ **..........** HON. JUSTICE JOHN OSCAR KIHIKA