[2025] UGHC 458

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAPCHORWA CRIMINAL SESSION NO. 0472 OF 2024 KAP/CRB NO. 823 OF 2023**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION**

#### **VERSUS**

**CHEROP WINNIE ALAIS CHEMUTAI ::::::::::::::::::::::::::::::::::::::::::: ACCUSED**

## **BEFORE: HON. JUSTICE LUBEGA FAROUQ JUDGMENT**

#### **1. Introduction:**

2. This is the judgment in a criminal trial where the accused, Cherop Winnie alias Chemutai was indicted with the offence of murder contrary to sections 171 and 172 of the Penal Code Act, Cap.128.

#### **3. Background:**

- 4. The prosecution case was that on the 26th day of November, 2023 while at Siyoi village in Kapchorwa district, the accused with malice aforethought unlawfully caused the death of Chemutai Ibrahim. - 5. It was alleged that on 26th day of November, 2023, the accused made threats to the complainant via a phone in which she told him that they hated him, and that he will bury his children one by one. This followed the domestic wrangle between the complainant and his wife Chemutai Grace, the accused's sister. - 6. That on the fateful day, the accused went to the Complainant's home where she found his children, gave them poisoned soda which was consumed by Chemutai Ibrahim, leading to his death. - 7. When the accused was arraigned before court for plea taking, she pleaded not guilty, and the matter proceeded to full trial.

## **8. Burden and standard of proof**

- 9. According to the locus classicus case of **Woolmington V. DPP (1935) AC 462,** the burden of Proof in all criminal trials lies on the Prosecution all through the trial. This burden does not shift onto the accused except where there is a statutory provision to the contrary. *See also: Article 28(3) of the Constitution of the Republic of Uganda, Basita Hussein V. Uganda SCCA No. 35 of 1995,* - 10. The standard or threshold required to prove a criminal case against the accused is beyond reasonable doubt as per the decision in the case of **Miller V Minister of Pensions [1947] 2 All ER 372**. - 11. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book **Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Ed.)** as follows:

*"It is difficult to define the phrase ''reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: ''It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."*

#### **12. Legal Representation**

- 13. At the hearing of this case, Mr. Wepondi Paul and Ssengendo Sadat appeared for the Prosecution while Ms. Nancy Cheptoek, Cherotwo Laila and Mr. Sam Chepkube appeared for the accused on State brief. - 14. Prosecution called three (3) witnesses to prove its case, that is; PW1- Chebet Ismail PW2- Barteka Rashid and PW3- Dt/AIP Ejadu Richard. Prosecution also tendered in court the postmortem report PF48B which was admitted as PEX1, PF17A which was admitted as PEX2, medical

examination report of the accused person PF24 which was admitted as PEX3 and the laboratory analysis report which was admitted as PEX4.

15. On the other hand, the accused led evidence of two witnesses for her defence, that is; herself and Chemtai Grace (DW2)

## **16. Analysis of court.**

17. The offence of murder is provided for under S.171 of the Penal Code Act, cap.128. It thus provides that-

> "*Any person who with malice aforethought causes the death of another person by an unlawful act or omission commits murder."*

- 18. In the precinct of the above provision, the ingredients of the offence of murder are as follows - *a) Death of a human being;* - *b) The death was caused by an unlawful act;* - *c) The death was caused as a result of malice aforethought;* - *d) That the accused person participated in causing death of the deceased.* - 19. The duty of this court is to establish from the evidence on record whether prosecution has ably proved all the four (4) ingredients highlighted above beyond reasonable doubt. Accordingly, this court will proceed to handle that duty as hereunder; - 20. *Death of a human being* - 21. It is trite law that death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the deceased's body. - 22. In the case of **Kimweri V. Republic [1968] E. A. 452**, it was held that proof of death may, among other means, be by someone who saw the body of the dead person. - 23. Both PW1 and PW2, brother and father of Chemutai Ibrahim respectively testified that he died upon drinking a poisoned soda. DW2, the mother of Chemutai Ibrahim testified that he died in 2023. The post mortem report

(PF48B) which was admitted as PEX1 confirms that upon the death of Chemutai Ibrahim, an autopsy was conducted on his body at Kapchorwa Hospital on 28/22/2023. This leaves me with no doubt in my mind that prosecution ably proved the death of Chemutai Ibrahim.

## *24. That death of Chemutai Ibrahim was caused by an unlawful act.*

- 25. The position of the law is that all homicides, unless excusable by law, are presumed to be unlawful. See: *R. V. Gusambizi s/o Wesonga (1948) 15 E. A. C. A. 65 and Uganda V. Bosco Okello alias Anyanya, High Court Session Case No. 143 of 1991 [1992 - 1993].* - 26. Where it is however, shown that the homicide was committed under circumstances that were either accidental, or in defence of person or property, or in execution of a lawful court order, it would therefore be excusable. See: *R. vs. Gusambizi S/o Wesonga (supra)* - 27. The presumption of unlawful homicide may therefore be rebutted by showing that the killing falls in the ambit of the excusable circumstances. The standard of proof for such rebuttal is on the balance of probabilities. (See: *Festo Shirabu s/o Musungu vs. R (22) E. A. C. A. 454.)* - 28. PW1, PW2, & PW3 all testified that the late Chemutai Ibrahim died of poison which was given to him by the accused. PW2 further testified that the incident of poisoning his son (Chemutai Ibrahim) followed a domestic wrangle which he had with his wife (sister to the accused), which resulted into his wife leaving their home. - 29. That in the process of attempting to bring his wife back, the accused spoke to him on phone where she stated that they hated him, and that he will start burying his children one by one. - 30. The laboratory analysis report (PEX4) dated 12/04/2024 shows that the stomach contents of the deceased were found to have harmful substances. In face of these revelations, it is evident to me that whoever caused the death of Chemutai Ibrahim, did it unlawfully. - 31. In **Wanda Alex and 2 others V. Uganda, Supreme Court, Criminal appeal No.42 of 1995**, it was held that- "After the Court has properly

considered all the essential elements which constitute the offence of murder, then the killing was unlawful, since it was not accidental or authorized by law."

32. With the above,, I find that the prosecution proved this ingredient beyond reasonable doubt.

## **33.** *That the death was as a result of malice aforethought*

34. Malice aforethought means the guilty mind to commit a crime. It is therefore a mental element that is difficult to prove by direct evidence. This means that malice aforethought can largely be proved through evidence of circumstances.

## 35. **Section 174 of the Penal Code Act Cap. 128** provides that-

*"Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances-*

- *(a) an intention to cause the death of any person, whether that person is the person killed or not, or* - *(b) Knowledge that the act or omission causing death will probably cause the death of some person, whether that person is the person actually killed or not, although the knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused."* - 36. In the view of the above section, it is apparent that unless the assailant expressly admits that he or she intended to cause the death of the deceased, the prosecution can only establish the existence of malice aforethought through evidence of the circumstances surrounding the case. - 37. An inference as to unlawful cause of death can therefore be derived from the factors outlined in **R V. Tubere s/o Ochen (1945) 12 E. A. C. A. 63** where court stated that to establish whether the assailant caused death with malice afore thought or not, the following factors should be considered - *a) The nature of the weapon used to cause death,*

- *b) The part of the body of the victim targeted by the assailant. Whether vulnerable; or not.* - *c) Whether the injury was inflicted in a manner that manifests the intention to cause grave damage or injury (as for example where the injury was inflicted repeatedly); or not.* - *d) Whether the conduct of the accused before, during, and after the attack points to guilt; or not.* - 38. PW1, PW2, & PW3 all testified that the late Chemutai Ibrahim died of poison which was given to him by the accused. PW2 further testified that the incident of poisoning his son (Chemutai Ibrahim) followed a domestic wrangle which he had with his wife (sister to the accused), that resulted into his wife leaving their home. - 39. That in the process of attempting to bring his wife back, the accused spoke to him on phone where she stated that they hated PW2, and that for that reason he will start burying his children one by one. - 40. The laboratory analysis report (PEX4) dated 12/04/2024 shows that the stomach contents of the deceased were found to have harmful substances. - 41. It is thus clear from that evidence that whoever caused the death of Chemutai Ibrahim did it with malice afore thought. - 42. In the circumstances, I agree that this ingredient was proved by the prosecution beyond reasonable doubt.

## *43. Participation of the accused.*

- 44. Participation of accused in the commission of an offence can be proved by direct or circumstantial evidence. - 45. PW1 Chebet Ismail testified that the accused (Aunt Winnie) went to their home in the absence of his father (PW2). She gave him a soda, which Chemtai Ibrahim (the deceased) grabbed from him and drunk it. That soon after drinking the said soda, the victim started complaining of stomach pain, and he later fell down. - 46. In a short-while, their father, Barteka Rashid (PW2) returned home, and found when the victim was languishing in pain. He asked PW1 what had happened to him. PW1 narrated to him what had happened. He then rushed the victim to Kapchorwa General Hospital, but unfortunately the victim died along the way. - 47. During his testimony, PW1 pointed at the accused, he referred to her as his maternal aunt Winnie. He firmly told court that Aunt Winnie is the one who gave the deceased a soda which had poison. He emphasized that he knew the accused because at one time she visited them at their home on a Sunday. - 48. It is settled law that the credibility of unsworn testimony of a child is evaluated based on his consistency, demeanor, ability to recall details and detecting his motive to lie or tell the truth. Most of all it must be corroborated by other material evidence establishing the guilt of the accused. **(See: RJ V. the Queen (2010) 208 A Crim R 174, the NSW)** - 49. In cross examination of PW1, he contradicted himself when he told court that before this case, he had never met with the accused person. He testified that the first time he met with the accused was at court during the hearing of this case. This position was confirmed by DW1 who testified that the first time she met with PW1 was at court during the hearing of this case. She attributed this to the animosity that has existed between her and PW1's father since 2014 when PW1's father Barteka Rashid married her sister Chemutai Grace. - 50. The contradictions in PW1's testimony about his prior knowledge of the accused cannot be underestimated. This contradiction touch on a crucial aspect of identifying the accused by PW1 as a single identifying witness who allegedly saw the accused giving poisoned soda to the deceased. - 51. It is settled law that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to

deliberate untruthfulness will be ignored. In the case of **Twinomugisha Alex & others V.. Uganda, S. C. Criminal Appeal No. 35 of 2002**, it was held that-

> *"The gravity of the contradiction will depend on the centrality of the matter it relates to in the determination of the key issues in the case. What constitutes a major contradiction will vary from case to case"*

- 52. The contradictions in PW1's evidence are cleared by the evidence of DW2- Chaemutai Grace, (the deceased's mother). She testified that she got married to PW1's father (the complainant) in 2014, and that none of her relatives including the accused person had ever visited them at their home during their marriage. This is because the complainant disrespects her family. - 53. In the presence of the contradictions in evidence of the single identifying witness of the prosecution, court must as of necessity caution itself of the danger of relying on such evidence alone unless, it is corroborated in material particular pointing to the guilty of the accused person. - 54. PW1 informed court that he is a child aged 9 years. Court conducted a voir dire on him, and established that he does not appreciate the nature of oath. He therefore, gave unsworn evidence. - 55. In the case of **Sankey V. The King, 1927 CanLII 43 (SCC), [1927] SCR 436,** the Canadian Supreme Court held that-

*"It is a duty of the presiding judge to ascertain by appropriate methods whether or not a child offered as a witness does, or does not, understand the nature of an oath, as it is to satisfy himself of the intelligence of such child and his appreciation of the duty of speaking the truth. On both points alike, he is required by the statute to form an opinion; as he is entrusted with discretion, to be exercised judicially and upon reasonable grounds."*

56. The position of law is that the accused cannot be convicted on the unsworn testimony of a child unless it is corroborated by some other material evidence. Section 41 (3) of the Trial on Indictment Act, Cap. 25 provides that-

> *"Where in any proceedings any child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his or her evidence may be received, though not given upon oath, if, in the opinion of the court, he or she is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth; but where evidence admitted by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating him or her."*

- 57. To corroborate the evidence of PW1, prosecution called PW2 who testified that the accused is his sister in-law, and that the deceased was his biological son whom he produced from the accused's sister called Chemutai Grace. That prior to the fateful incident of poisoning the victim, PW2 had had a domestic wrangle with his wife Chemutai Grace. That as a result of the said wrangle, the accused called PW2 on phone, and told him that *"they hated him, and that he will soon start burying his children one by one."* - 58. PW2 further testified that on the fateful day, as he was returning home from police where he had gone to make a statement over the intimidations he received from the accused, he met the accused on the main road coming from where his home was. On reaching home, he found when his son (Chemtai Ibrahim) was in a dreadful condition. He asked PW1 what had happened to the victim, and PW1 told him that the accused had given him a soda which he drunk, and started complaining of stomach pain. He then rushed the deceased to the hospital, but unfortunately hedied along the way.

- 59. In rebuttal, the accused testified that since 2014 when the complainant (PW2) married her sister (DW2), she had never visited them at their home as was alleged by PW1 and PW2. She emphasised that the allegations of her going to the complainant's home on the fateful day are fallacious. That she believes that the complainant concocted such allegations against her because she advised her sister Chemtai Grace (wife of the complainant) not to go back to him after a series of physical assaults occasioned to her by the complainant. - 60. DW2 buttressed the evidence of the accused (DW1), she testified that the complainant is her husband with whom they had three children including the deceased, Chemtai Ibrahim. That she got married to the complainant in 2014, but before marrying him, she had a child from another man. That during their marriage, none of her relatives including the accused person ever visited them at their home. This is because the complainant disrespects their family. - 61. Further, DW2 testified that the complainant used to beat her whenever she would communicate to the father of her first born child for support. That the complainant hated the deceased because he suspected him to be DW2's former husband's child. That at one time, the complainant burnt down the house when DW2 and Chemtai Ibrahim were inside. - 62. The revelations from the evidence of DW1 and DW2's testimonies point at existing long time animosity/grudge between the complainant (deceased's father) and the accused's family. In the case of **Ramesh Chand Singh & Ors V.. The State Of West Bengal & Anr on 23 September, 2021,** it was held that-

*"In case, solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold."*

63. Also, in the case of State of **Haryana V. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426],** the Supreme Court of India held that-

> *"Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the court is enjoined to exercise its inherent jurisdiction to quash the proceedings."*

- 64. In my consideration of the evidence as a whole, I find that the complainant has had a long term animosity with the accused's family. This stems from the way how the complainant was treating their relative (DW2) Chemutai Grace. In her own testimony DW2 testified that she was consistently assaulted by the complainant during the subsistence of their marriage. That at one time the accused advised the complainant's wife not to return back to him which created resentment from the complainant against the accused. - 65. The evidence of PW2 was supposed to corroborate the unsworn testimony of PW1. However, given the circumstances of this case, I am inclined to treat his evidence with a lot skepticism due to revelations of ulterior vengeance. It is highly probable that the instant case was proceeded against the accused with an ulterior motive for wreaking vengeance and for settling of his private and personal grudge against the accused. I have therefore, taken his evidence with caution to avoid using court as a tool of operation against the accused. Accordingly, PW2's evidence is insufficient to corroborate the unsworn testimony of PW1. - 66. In the view of the above, I agree with the opinion of the assessors that the prosecution failed to prove participation of the accused in the commission of the offence of murder.

67. Accordingly, I acquit the accused for the offence of murder. She is hereby set free and shall be released forthwith unless held on other lawful charges.

I so order.


*Judgment delivered in open court in the presence of the accused and Advocates for both sides on the 30th day of July, 2025*