[2020] UGHCCRD 166

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA HELD AT KAMPALA**

**CRIMINAL SESSION CASE NO.0482 OF 2017**

**UGANDA PROSECUTOR**

**VERSUS**

**(A1) BAGYENDA BRIAN**

**(A2) BAINOMUGISHA INNOCENT ACCUSED**

**(A3) RWAHWIRE VINCENT**

**BEFORE HON. JUSTICE MOSES KAZIBWE KAWUMI**

**JUDGMENT.**

Bagyenda Brian(A1),Bainomugisha Innocent (A2) and Rwahwire Vincent(A3) were indicted for Murder contrary to sections 188 and 189 of the Penal Code Act. It is the Prosecution’s case that on the 4th January 2017 at Plot 2 Njobe Road Luzira in the Nakawa Division of Kampala District, the three accused persons with malice aforethought caused the death of Twijukye Enid.

The gist of the Prosecution case is that A1 who had sexual relations with the deceased met with the deceased at his home on the 4th January 2017. The deceased did not return home. Her body was found in a bush along Jinja road and investigations revealed that she had been in constant touch with A1 prior to her leaving home. On arrest and subsequent interrogation,A1 confessed to have caused the death and dumping of the body with the assistance of A2 and A3 who had been arrested with him on the 17th January 2017.

**Representation.**

Mr. Kyomuhenda and Ms. Keko Joan represented the Prosecution. A1 was represented by Mr. Nsubuga-Mubiru assisted by Mr. Sserulika and Mr. Wanyama. Mr. Kumbuga represented A2 and A3 on state brief.

All the accused denied the charge and in a bid to prove its case, Prosecution called the following witnesses . Mirembe Esther(PW1),Evas Turigye(PW2),David Oburuk(PW3),Timothy Taremwa(PW4),D/AIP Mayanja Moses(PW5), D/C. Nabutanda Jamillah (PW6),Doreen Abainomurungi(PW7),Dr. Ojara Santo (PW8), ASP Obongo Deogratious(PW9),D/Seargent Wasajja Karoli (PW10),D/Corporal Ramathan Noah(PW11),D/AIP Kukundakwe Busingye(PW12),D/ASP Rubanzabigwi John Bosco(PW13),Dr. Kalungi Sam(PW14), Dr. Omuron Julius (PW15) and D/AIP Barijunaki Samuel (PW16).

Bagyenda(A1) exercised his right to keep quiet and called Dr. Mutamba Brian (DW3),Asiimwe Arnold(DW4) and Sr. Nantamu Jane Frances(DW5) as his witnesses. Bainomugisha (A2) and Rwahwire (A3) gave evidence on oaths and called no witnesses.

**Summary of the Prosecution evidence.**

Mirembe(PW1) told Court that her daughter Twijukye who was staying with relatives at Bweyogerere left home on the 3rd January 2017. PW1 tried to call her number on the 6thand 7th but her phone was off. She was on 14th January 2017 told by her son that Twijukye’s body had been found dumped on Jinja road. PW1 participated in the burial ceremony. She later identified property said to belong to the deceased and donated materials for DNA analysis by the Police.

PW1 narrated the she did not know Bagyenda(A1) before his arrest but recalled that the deceased had been driven to her home for the 2016 Christmas season in a car she later came to learn belonged to him. PW1 denied any knowledge of A1 as a boyfriend to her daughter and further did not know of his having been a patient at Butabika Hospital in October 2016.

Turigye Evas(PW2) stayed in the same home with the deceased up to the 3rd January 2017 when she left to meet a friend whose name she did not mention. On the 9th January PW2 and others checked the call list of a phone the deceased had left in the house. It revealed Bagyenda’s phone number as one of those frequently called and PW2 knew him. On the 13th January 2017 PW2’s husband learnt of a dead body recovered by Police on Jinja road and it was confirmed to be that of Enid Twijukye. Bagyenda was arrested after the burial after his phone was tracked by Police.

PW2 told Court that Bagyenda confessed to murdering the deceased at Jinja Road Police station because he suspected her to have another man based on the evidence he had found on her phone. A1 is further stated to have confessed that A2 and A3 participated in tying the limbs of the deceased as they suffocated her with a pillow after which he paid them U.shs.200,000. The body was thereafter dumped on Jinja road using A1 ‘s car accompanied by A2 and A3. PW2 identified and Prosecution exhibited the deceased’s property recovered from a hotel room hired by Bagyenda and from his home at Luzira.

It was PW2’s evidence that she did not know that A1 had a sexual relationship with the late Twijukye but knew of a boyfriend who was staying in Newyork but had never met him. PW2 further denied knowing Bainomugisha(A2) and Rwahwire(A3) before she heard Bagyenda(A1) talking about them as accomplices in committing the crime at the Police station.

Obuluk David(PW3) and PW2 found a receipt for a recently bought phone in Bagyenda’s names among the property of the deceased in her bedroom. PW3 and PW2 also saw the same name in the call list of a phone used by the deceased. PW3 called Bagyenda on the 13th January 2017 telling him about the disappearance of Twijukye. A1’s response was that he had last seen her on 3rd January 2017 and that he had got the same information from a one Doreen who was a cousin to the deceased.

PW3 contacted a Lawyer who worked with an Investigator for the tracking and subsequent arrest of Bagyenda. It also emerged from the evidence of Doreen Abomurungi (PW7) that she called Bagyenda on the 15th January 2017 informing him about the death of Twijukye. Bagyenda(A1) sent U. Shs.200,000 towards the burial expenses and later confessed to his involvement in the murder of Twijukye in the presence of PW2,PW3 and herself at Jinja Road Police station.

Taremwa Timothy (PW4) identified the body for purposes of carrying out a postmortem examination. The procedure was carried out by Dr. Kalungi Sam (PW14) but the cause of death was not established. The Postmortem report was admitted in evidence as a Prosecution exhibit.

Detective Assistant Inspector Mayanja Moses(PW5) was called in to search a room hired by Bagyenda(A1) at Voyageur hotel. In the presence of the case Investigation Officer Jamillah Nabutanda(PW6) hotel receipts for the room booked in the names of **Mujuzi John** were recovered. Also found in the room were personal property of the deceased and three pillow cases stained with vomit.

PW5 further conducted a search in the house occupied by Bagyenda at Njobe road Luzira and three pillows were recovered therefrom . The search certificates, exhibit slips and the recovered items were admitted in evidence. PW5 submitted the recovered items to the store man until he retrieved them in March 2017. It was the evidence of PW5 that he did not know the deceased and did not interact with A2 and A3 on this case.

Detective Corporal Nabutanda(PW6) coordinated the investigations from the time the body was found at Kigunga vilage on Jinja road. PW6 coordinated the identification and forwarding of exhibits for DNA analysis. As the case Investigation Officer,PW6 was shown the Plain statement made by A1 in which he alludes to having been thrown into a state of severe depression by the earlier conduct of the deceased. She responded that the Police Surgeon had to recommend the steps to take but she did not share that information with him.

In reference to a letter dated 20th February 2017 relating to the examination of Bagyenda at Butabika Hospital on the 4th November 2016, it was PW6’s evidence that she would have referred him for mental examination if the letter had been brought to her attention. PW6 further conceded that DNA tests were not carried out on A2 and A3. Nothing linking the two to the case was further recovered from the searches conducted at the two premises according to PW6.

ASP Obongo Deogratious(PW9) supervised the investigations at the Regional level and perused the statements recorded by field officers including the one from Bagyenda. It was his evidence that A1 had to be taken for mental examination on account of the reference to the mental depression he stated to have suffered earlier. PW9 however opined that it was the Police Surgeon to make that decision. Exhibits recovered under the supervision of PW9 were processed and kept by Seargent Wasajja(PW10) and D/Constable Noah Ramathan (PW11).

Dr. Ojara Santo(PW8)examined all the accused persons for purposes of Police Form 24 on the 21st January 2017. In his opinion they were all well and fit for plea taking. In specific reference to Bagyenda(A1) it was the evidence of PW8 that he was mentally sound as established from his clean cloths, kempt hair, and orientation in person and place. PW8 claims to have interacted with A1 for about 15 to 20 minutes and further opined that depression is a state of feeling low but is not a permanent condition.

PW8’s opinion on the report generated by Dr. Mutamba was that on the 4th November 2016, A1 had ideas of killing himself but did not show homicidal tendencies. PW8 insisted that his report related to the mental state of A1 at the time he examined him on the 21st January 2017 and he was mentally sound.

D/AIP Kukundakwe Busingye(PW12)recorded a Charge and Caution statement from Bagyenda that was without objection from Counsel and A1 himself admitted into evidence as Prosecution exhibit No.32. PW12 stated that if he had seen the allusion to A1’s mental state in the Plain statement, he would have referred him to a Psychiatrist but the Police Form 24 still covered the requirement for mental examination.

D/ASP Rubanzabigwi (PW13) and D/AIP Barijunaki Samuel(PW14) recorded Charge and Caution statements from A2 and A3 respectively. These were repudiated by the two accused persons claiming that they were made to append signatures to the statements the contents of which they did not know. The two statements were later admitted in evidence after trials within the main trial were conducted.

Dr. Omuron Julius (PW15) was called by the Prosecution as an Expert witness being a Senior Consultant Psychiatrist and a Lecturer of Mental Health and the Law to Medical students. According to PW15, *‘depression”* is a persistent disorder characterized by negative thoughts, lack of sleep, difficulty in concentrating and memory impairment. It may impair socialization and the patient may develop suicidal thoughts. PW15 opined that most people with depression retain the ability to understand things and their actions until they hit high severity levels.

PW15 confirmed that Dr. Mutamba examined Bagyenda(A1) and diagnosed him to have had *“major depressive episodes”* based on the symptoms he observed at the time. The symptoms had started without any other medical condition like drug abuse or loss of a relative and the patient had suicidal ideation and excessive fear at the time but exhibited no homicidal tendencies. According to PW15 homicidal tendencies normally go with the urge to end the lives of those who depend on the depressed patient so as not leave them behind to suffer.

Bagyenda(A1) however showed improvement and was withdrawn from the hospital on 12th November 2016. PW15 could not tell if A1’s symptoms changed after the 4th November 2016 since there was no follow up opportunity from that date as per the report by Dr. Mutamba.

**Summary of the evidence by the accused.**

Bainomugisha(A2/DW1) told Court on oath that he was arrested with A1 and A3 at Bugolobi on the 17th January 2017 and were not told what offence they had committed. DW1 further stated that on the 4th January 2017 he was at work in Kampala but did not meet with A3. He denied the contents of the charge and caution statement he claims were written by D/AIP Rubanzabigwi (PW 13) and he did not read him what he had recorded.

A2 further stated that he had worked for A1 as a cleaner but had stopped in 2014 and was related to A3 with they used to stay as neighbors at Kitintale. It was the evidence of A2 that A1 called him to come from the village on the 17th January 2017 and they were arrested together but did not know the reason why he had called him.

Rwahwire (A3/DW2) denied killing Twijukye on the 4th January 2017 and denied the contents of the Charge and Confession statement attributed to him. It was his contention that he was made to sign it by PW14 without reading out the contents to him. DW2 confirmed that he used to work as a shamba boy for A1 with DW1 but they remained in contact even after he left the job. DW2 told Court that he did not know that A1 had called DW1 to come to the place they were arrested from.

Dr. Mutamba Brian(DW3)examined Bagyenda on the 4th November 2016 at Butabika hospital and diagnosed him to have had a major depressive disorder with suicide ideation together with anxiety symptoms. DW3 recommended A1 for admission as an inpatient for monitoring purposes and he was to be reviewed by a Clinical Psychologist as he took anti-depressants . The report compiled by DW3 indicated that A1 had registered some improvement on the 7th November 2016 and his father took him away from hospital on the 12th November 2016.

In cross examination DW3 told Court that A1 did not have homicidal tendencies at the time he examined him. DW3 further guided that not every mental illness takes away the faculty of appreciating the patient’s actions as either right or wrong and that some depression patients pre-meditate their crimes. DW3 further opined that if treatment is not completed a depression patient may get worse but he could not speculate about A1 since he only saw him on the 4th November 2016.

Asiimwe Arnold(DW4), a brother to Bagyenda told Court that he was the first member of the family to notice a sharp contrast to A1’s usual behavior in October 2016. DW4 alerted the parents who took A1 to Kalangala for three days and subsequently checked him into Butabika hospital from where he once disappeared but the father ordered him back. DW4 visited his brother after his arrest and the latter told him he wanted to commit suicide which information he allegedly passed on to the Police authorities at Jinja Road.

According to DW4 ,Bagyenda was taken for medical examination that lasted about fifteen minutes on or about the 16th or 17th January 2017. DW4 conceded that he did not write to the Police Officers about A1’s mental condition and did not retrieve his medical records from Butabika hospital to prove to Police that A1 had ever been hospitalized for a mental abnormality. DW4 further told Court that A1 was staying alone from the time he was withdrawn from hospital and he was fine as per the Medical personnel but was not sure as to whether he had continued with medication. DW4 last checked on A1 in December 2016 and was at Kalangala on the 4th January 2017.

Sr. Dr. Nantamu (DW5) who is a trained Psychologist at PhD level interacted with Bagyenda (A1) in ten Psycho- spiritual sessions from around March 2017 when the latter was in Prison. DW5 found A1 in a low mood which she tried to boost but could not get a clear diagnosis. A1 improved but the Prison environment could not allow for proper psychotherapy treatment according to DW5. According to Sr. Nantamu her patient had self-dejection, self-blame feelings of guilt and revealed that he had killed his girl friend. DW5 stated that what A1 suffered from was not a mental disorder but a *‘mood disorder or mood swings.”*

According to Sr. Nantamu, a person in the mental state A1 was in could to some extent recollect events and could somehow distinguish wrong from right but may not do so if the mood was low . It was her opinion that a mentally unstable person cannot premeditate an offence and that one must also be mentally sound to hide evidence after committing the offence.

**Statement of the Law.**

The Prosecution has the burden to prove all ingredients of the offence charged. The burden does not shift except in a few statutory offences. The standard of proof required is that of proof beyond reasonable doubt which was stated not to mean proof beyond a shadow of doubt or absolute certainty. The standard is met when the evidence adduced by the Prosecution is so strong against a person that it leaves only a small possibility in his or her favor.

**Miller V Minister of Pensions [1947]2 ALL. E. R 372.**

It is also the position of the Law that the accused does not have the burden to prove his innocence; a conviction can only be secured on the strength of the Prosecution evidence and not on the weakness of whatever defence the accused presents before court.

**Uganda v Nkurungira Thomas HC Criminal Case No.0426/2010; Oketcho Richard V Uganda. SC Criminal Appeal No.26/1995.**

It is pertinent to note that the Prosecution evidence is purely circumstantial since no witness claimed to have seen the accused commit the offence they are charged with. For this Court to justify an inference of guilt, the inculpatory facts must be incompatible with the innocence of all or any of the accused and incapable of explanation, upon any other reasonable hypothesis than that of their collective or individual guilt.

**Uganda v Robert Baguma [1988—90] HCB 74.**

In the course of the trial Bainomugisha (A2) and Rwahwire (A3) raised alibis as their defence. While A2 stated that he was at work in Kampala on the 4th January 2017 and did not meet A3, it was the evidence of A3 that he was not in Kampala but in his home village on the date in question. The law does not cast the burden to prove an alibi on the accused raising it as a defence. The Prosecution must disprove it by adducing evidence which places the accused at the scene of crime. The duty of the court is to judicially evaluate both versions and give reasons why one and not the other is accepted .

**Uganda v Phostin Kyobwengye [1988—1990] HCB 49; Bogere Moses V Uganda. SC Criminal Appeal No.1/1997.**

Bainomugisha (A2) and Rwahwire (A3) were implicated by Bagyenda (A1) in a Confession statement that he admitted to be tendered in evidence. A2 and A3 repudiated their own statements. It is trite to state that a repudiated confession can be relied on for a conviction if the court is satisfied about its truthfulness. Corroboration is however normally required before it can be relied on by the court. It is also the position of the Law that a confession by a co-accused as in the case of A1 cannot be used to convict other co-accused but can be taken into consideration to supplement other independent material evidence under section 28 of the Evidence Act.

**Kasule V Uganda [1992—93] HCB 38; Uganda v Kato Kajubi Criminal Appeal No.20.2010;Ezrah Kyabanamaizi V R [1962]EA 309.**

Bagyenda (A1) raised a defence to the effect that he was not criminally responsible for his involvement in the murder of Twijukye on account of the depression which affected his mind. Section 10 of the Penal Code Act provides for any person to be presumed to be of sound mind and to have been of sound mind at any time which comes into question until the contrary is proved. Once the accused raises a defence relating to his or her soundness of mind, the law places the burden of proof on him or her to discharge upon a balance of probabilities as provided by section 194(2) of the Penal Code Act.

Once the accused raises a reasonable probability that he or she may not have been in a proper frame of mind at the time in question, the burden shifts to the Prosecution to dislodge beyond reasonable doubt that he or she was capable of appreciating what he or she did and its consequences.

**Kimani V R[2000]2 EA 417; Rukarekoha V Uganda [1999]1 EA 297; RV Magata s/o Kachehakana [1957] EA 330.**

**Evaluation of the evidence.**

Prosecution is required to prove the following ingredients of the offence.

1. That Twijukye Enid died; 2. That her death was unlawfully caused 3. That the death was caused with malice aforethought. 4. That all the accused or any of them participated in causing the death of Twijukye Enid.

It was not disputed that Twijukye Enid died and her body was recovered from Kigunga village along the Kampala- Jinja road. The Postmortem report generated by Dr. Kalungi Sam(PW14) after the body was identified to him by Taremwa(PW4) proves the fact of the death.

As to whether the death of Twijukye Enid was unlawful was a contested matter. It was submitted for Bagyenda(A1) that this ingredient of the offence was not proved in relation to him. It was argued that A1 suffered from a disease of the mind which formed the justification for the offence he committed and thus the ingredient was not proved by the Prosecution as by law required. On the other hand, Prosecution argued that the death was unlawful since it was not excusable or authorized by the law.

With all due respect to Counsel for Mr. Bagyenda, I fail to find merit in his submission. Under the Law, every homicide is presumed to be unlawful. This presumption is only negatived by evidence of the homicide being a result of an accident or being one sanctioned by the Law and Twijukye’s death did not fall under any of the two categories. A homicide committed by a person proved to be of unsound mind at the time he or she commits the offence does not make the death lawful.

As to whether or not A1 was suffering from a disease of the mind that affected his judgment at the time he participated in causing the death would only affect the post judgment phase of the trial relating to how his case should be handled as guided by section 194 of the Penal Code Act. It would not render the death unlawful under the Law.

The Postmortem report did not establish the cause of death. It is however established from the Charge and Caution statement recorded by Bagyenda from which I quote the following portion to prove the unlawfulness of the death of Enid Twijukye.

*“I left Twijukye seated on my bed. I moved out and called Rwahwire Vincent and Innocent,they are in the neighborhood. I told them I am troubled with Twijukye and I wanted to confront her and I do not know how her reaction would be. I told them to strangle/suffocate her. They followed me and held her,tied her with pillow cases and strangled her in my presence. Vincent held her neck and she gasped for air while Innocent was holding the lower part of her body . She could not talk as they had tied her mouth with a pillow case. At around 23.00 hours she was killed and the issue at hand was disposing off the body.”*

I find that this ingredient of the offence was satisfactorily proved by the Prosecution.

Bainomugisha(A2) and Rwahwire (A3) repudiated the Charge and Caution statements implicating them as accomplices with A1. It was a finding of this Court that the statements were voluntarily made by Officers of the requisites ranks. I further find both statements truthful on account of the corroborating evidence I find pertinent to outline herein below.

The two statements corroborate on the amounts each of two were given by A1. Bainomugisha(A2) received Shs.20,000/- and Rwahwire (A3) received Shs.10,000/- just after suffocating the deceased to death. A2 and A3 further independently state that A1 told them that the deceased had stolen his U.shs.4,000,000/=. A2 and A3 both state that they used pillow cases to tie the limbs of the deceased.

The statements are also in tandem about which part of the deceased’s body each held as they suffocated Twijukye to death. Bainomugisha (A2) held her body while Rwahwire (A3) held her neck and this is confirmed by the confession made by A1.

Rwahwire (A3) described the deceased as a lady putting on jeans and a vest like top at the time they were called into A1’s room to tie and suffocate her to death. The same description corroborates the evidence of PW2 and PW3 who saw the deceased leave their home in the same attire on the 4th January 2017. It was also in the statement of Bainomugisha (A2) that he saw a signpost reading *‘Seeta”* and another reading *“Stanbic Bank welcomes you to Mukono District”* as they rode in A1’s car to dump the body. Indeed the body was recovered from Kigunga village located just after the sign posts described by A2 in the statement he repudiates.

It defeats logic as to how two Police Officers who recorded the statements almost at the same time could have made up the detailed contents with such similarities. I thus find the denials about A2 and A3 meeting A1 at his home on the 4th January 2017 and their involvement in the death of Twijukye to be mere lies. The narrative about what they did is well corroborated between themselves and the statement by Bagyenda. Proved lies may make the inference of guilt stronger and amount to corroboration it has been held by the Courts.

**Uganda v Mwase &Others .[1976]HCB 217;Uganda v Kodo Muhmuza. HC Criminal Case No.119/2001.**

Malice aforethought can be described as the interest to bring about the death of another person. A person is said to have had malice aforethought when he or she apprehends that his or her act or omission might result into the death of another. Malice aforethought being a question of the mind can be gathered from the number of injuries inflicted, the part of the body attacked, the number of weapons used and the conduct of the killer before and after the attack.

**Uganda V Ochieng[1992—1993]HCB 80.**

The conduct of A2 and A3 before and after the murder of Twijukye connotes malice aforethought. The use of pillow cases to tie her limbs was designed to disable her from putting up any resistance. Using a pillow to suffocate her was the chosen method of causing her death as instructed by A1 and confirmed in his statement . Further still the conduct of A2 and A3 in escorting A1 to dump the body points to the conclusion of the preconceived mission to kill Twijukye and destroy the evidence.

A2 and A3 did not dissociate themselves from A1 all through the commission of the crime and dumping of the body. The question to ask is what stopped A2 and A3 from reporting to any authority what A1 had done if they just left Twijukye alive on A1’s bed? According to the contents of their statements,A1 paid them and they left but he again came for them later in the night and they rode in his car to dump the body.

For the reasons stated above, I find the corroborating evidence from all the three statements and the independent evidence by the Prosecution more credible than the alibi raised by A2 and A3. The two were active participants in causing the death of Twijukye which was done with malice aforethought.

**Analysis of the evidence relating to Bagyenda Brian (A1).**

It was argued for Mr. Bagyenda(A1) that he was burdened by depression at the time the offence was committed which rebutted the presumption of sanity and responsibility for the consequences of any acts or omissions under section 11 of the Penal Code Act. The argument is premised on the evidence of Dr. Mutamba (DW3) who examined A1 on the 4th November 2016 and that of Sr. Nantamu (DW4) who interacted with A1 close to three months after the offence was committed.

Counsel urged court to disregard the conclusion reached by Dr. Ojara Santo about A1’s mental health on the 21st January 2017 and further faulted the Police Officers for not subjecting A1 to a mental checkup before he took plea. It was strongly submitted that much as it was opined by Dr. Muron that most mental illness patients retain their sense of discerning right from wrong, he did not qualify A1 to be among that majority. I was urged to declare A1 guilty but with diminished responsibility and subject him to the requirements of section 194(3) of the Penal Code Act.

Prosecution on the other hand argued that A1 possessed his full mental faculties and committed the offence with malice aforethought together with A2 and A3. A narrative and confession about how all events unfolded and the subsequent attempt to destroy evidence by A1 were pointed out to show he knew what he was doing . I was urged to find A1 guilty of the murder based on his undisputed confession among other evidence and accordingly convict him.

**Section 194(1)** **of the Penal Code Act** provides:-

*“Where a person is found guilty of murder or being a party to the murder of another, and the court is satisfied that he or she was suffering from such abnormality of mind ,whether arising from a condition of arrested or retarded development of mind, or any inherent causes or induced by disease or injury, as substantially impaired his or her mental responsibility for his or her acts and omissions in doing or being a party to the murder, the court shall make a special finding to the effect that the accused was guilty of murder but with diminished responsibility.”*

**Section 194(3)** of the same Act provides:-

*“Where a special finding is made under subsection (1), the court shall not sentence the person convicted to death but shall order him or her to be detained in safe custody, and section 105 of the Trial on Indictments Act shall apply as if the order had been made under that section.”*

Section 105 of the Trial on Indictments Act provides for the court to transmit a copy of the court record to the Minister for an order that the convict be detained in such prison or other place of custody as may be specified in the order.

A perusal of the evidence by the Expert witnesses shows a commonality of agreement on salient issues concerning depression as a disease of the mind. It was the evidence of both Dr. Santos and Sr. Nantamu that *“depression”*is not a permanent state. Sr. Nantamu referred to it as *“mood swings.”* It was also agreed by both Dr. Muron and Dr. Mutamba that not all mental illness patients lose their faculty of determining what is right or wrong until they hit severe levels.

According to Sr. Nantamu(DW5) a depressed patient cannot premeditate an offence and subsequently hide evidence after committing it. The Experts on mental health further agreed that A1 did not display homicidal tendencies during their respective interactions with him before and after the offence was committed.

This Court is required to evaluate whether the evidence submitted for A1 raises a reasonable probability that he could not appreciate his actions and their consequences on the 4th January 2017 when the murder was committed. This has to be weighed against the rebuttal by the Prosecution which is required to prove that he was capable of appreciating his actions to the standard of proof beyond reasonable doubt.

It was the evidence of A1 in the confession statement in reference to the disagreement with the deceased that *“this situation had earlier thrown me into a depression which made me to undergo medication when my doctor diagnosed it as severe depression with anxiety.”* On the contrary Dr. Mutamba who examined A1 at the time did not state the cause of the severe depression in the report he generated. It is also pertinent to note that Dr. Mutamba examined A1 only on the 4th November 2016 and was emphatic that he could not speculate about his mental condition on the 4th January 2017 when the offence was committed.

On the 7th November 2016 A1 is stated to have registered some improvement and his father who had checked him into the hospital withdrew him on the 11th November 2016. According to Asiimwe (DW4) their father had at one time ordered A1 back to Butabika when he had disappeared before discharge. DW4 who took the responsibility to inform the parents about A1’s mental state when he first noticed a change in his behavior did not report of any deterioration yet he used to visit him at home from the time he was removed from Butabika hospital by their father.

DW4 was the last witness to interface with A1 before the offence was committed. He did not report any lapse in A1’s mental health. DW4 next saw A1 around the 19th January 2017. His evidence therefore does not relate to A1’s mental state on the 4th January 2017 which remains a speculation since depression is not a permanent state as guided by the experts in mental health.

Bagyenda’s narration of the events in his own confession statement further points to his state of mind. During the 2016 Christmas season, A1 was moving out with the deceased, financed her shopping and offered his car to drop and pick the deceased from Kazo on the 31st December 2016. A1 had offered to drive the deceased to Kazo but she declined the offer. On the 1st January 2017 the couple spent the night together and the deceased left at 10.00am the next day. No evidence was led to show that A1 had any mental complication for all this period.

On the 3rd January 2017 the deceased declined to go to A1’s home after he had picked her from a funeral service at All Saints Church Kampala and he states;

*” I interpreted it that she was no longer in the mood and submissive as before. She had lost the stamina of affection we had before and sometimes she would chip in statements like I can even leave now or I shall be coming here for two hours.”*

On the 4th January 2017 the deceased was picked from her home by A1. While the deceased was sleeping,A1 searched her phone and came across communication between her and another man with photos which he forwarded to his own phone set. A1 states that the deceased was evasive when confronted with the information and further stated:

*“I stayed with Enid up to around 2300 hours when our disagreement got to the extreme. I noticed she was no longer going to be with me and all that I had spent on her were gone . When I planned to sort out this matter with her, I phoned Innocent Bainomugisha and Vincent Rwahwire who live nearby and who had been my workers.”*

A1 further stated in the confession statement:-

*‘ I kept the TV loud and held the curtain of the window to avoid exposure. This happened in the absence of the maid whom I had sent to do shopping at Kalerwe market. By the time she returned we were still in argument . I gave her money and asked her to go and take soda outside as I still had some guests…. At around 2300 hours Enid died on my bed where she was strangled by Vincent and Innocent under my supervision.”*

A1 later drove the car with A2 and A3 to dump the body, drove to Masaka where he spent three days in Church seeking penance, drove back to Kampala through Kazo and Fortportal later checking into Voyageur hotel under the names of Mujjuzi John. This was after he had spent a few days in an unnamed hotel in the Minister’s Village around the Ntinda surbub.

In my evaluation no evidence by any of the witnesses for A1 informed Court about his mental state around the time the offence was committed on the 4th January 2017. The last known state of A1 was the reported improvement on the 7th November 2016 close to sixty days before the offence was committed. The inference to be made is that his father withdrew him from hospital after full recovery since according to DW4 he had forced him back when he had escaped.

Asiimwe(DW4) a responsible brother to the accused did not report to anyone of any deterioration in A1’s mental health yet he used to check on him after leaving Butabika hospital. I found the evidence that he informed the Police of A1’s deteriorated mental state rather unconvincing. He told Court that he did not show them any medical records and did not reduce his concerns into writing which would be proof that he raised his concerns to the Officers. Even then, that would be no evidence to show that A1 was not capable of understanding his actions on the 4th January 2017.

The conduct of A1 immediately before and after committing the offence with A2 and A3 do not point to a person who could not appreciate what he was doing. A1 drove from Luzira to Bweyogerere to collect the deceased, was able to check her phone and in his own words *“planned to sort out”* the disagreement by involving A2 and A3. A1 further proceeded to increase the volume of the television set and drew the curtains to enable A2 and A3 successfully complete the assignment.

The motivation for the murder was, in my view, the realization by A1 that Enid was no longer the submissive lover she had initially been and yet he had spent much on her. What followed after that realization were actions not of a depressed person but of one executing a premeditated offence . I find a lot of credibility in the evidence of Sr. Nantamu who confirmed to court that a person burdened with depression cannot premeditate an offence, commit it and hide evidence. A1 was not burdened with depression at the time he committed the offence.

The sending of the maid to Kalerwe market from Luzira other than to any of the nearby markets, the sending away of the maid to take soda on her return,the act of increasing the volume of the TV and drawing the curtains followed by the dumping of the body to destroy evidence and the change of identity while booking into the Voyageur hotel do not either show that A1 was out of his normal senses. My conclusion is further bolstered by the readiness of A1 to confess to what he did and the detailed narrative he gave in the confession statement.

It is my finding that A1 was in his right senses on the 4th January 2017 and together with A2 and A3 caused the death of Enid Twijukye with malice aforethought . It is also my finding that A1 was mentally sound at the time that Dr. Ojara examined him on the 21st January 2017 and the plea was properly taken since the concern about his inability was not raised by Counsel at the time.

I entirely agree with the opinion of the single lady assessor who sat through all the hearings and advised me to find all the accused guilty.

Section 20 of the Penal Code Act provides:-

*“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence.”*

I find that all the accused jointly committed the offence irrespective of which of them held the neck or the legs or worked on the curtains to conceal what was going on in the room. The failure by A2 and A3 to dissociate themselves from what they attribute to A1 by reporting to any authorities confirms them to be joint offenders in the commission of the offence.

**R V Tabulayenka s/o Kirya &Others. [1943]10 EACA 51.**

I accordingly convict Bagyenda Brian (A1),Bainomugisha Innocent (A2) and Rwahwire Vincent (A3)of Murder contrary to Sections 188 and 189 of the Penal Code Act.

Dated at Kampala this 17th February 2020.

**Moses Kazibwe Kawumi**

**Judge**