[2025] UGHC 342

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KISORO CRIMINAL SESSION NO. 0033 OF 2023 (Arising from KIS No. o007 of 2022) (Arising from CRB No. 382 of 2022)** 10 **UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTOR**

## VERSUS

- **1. DUSABE MICHAEL alias BOY** - **2. NSABIMANA RICHARD alias KADOGO**:::::::::::::::::::::::**ACCUSED**

## **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

This case entails an indictment for Murder Contrary to **Section 188** and **189** of the Penal **Code Act** against Dusabe Michael alias Boy (A1) and Nsabimana Richard

20 alias Kadogo (A2). The facts giving rise to this indictment are that Dusabe Michael alias Boy, Nsabimana Richard alias Kadogo and others still at large on the 16/06/2022 at Gasovu Cell in Kisoro District with malice aforethought unlawfully caused the death of Kwizera Jerome.

Both Accused denied the charge.

25 **Representation.**

Mr. Ainomugisha Christopher (Senior State Attorney) appeared for the Prosecution while Mr. Nabaasa Rodgers appeared for the Accused persons on state brief. The Assessors for this trial were Ms. Idah Mugenga and Mr. Rwangyeyo Joseph.

5 During the preliminary hearing pursuant to **Section 67** of the **Trial** on **Indictment Act (TIA)** medical evidence in Police Form 48A, Police Form 48C and Police Form 24 were received as uncontested evidence.

Police Form 48A is the request for a post-mortem examination in respect of Kwizera Jerome and the same was admitted as Exhibit P1.

10 Police Form 48C is the post-mortem report carried out at Uganda Government Prisons Kisoro Health Centre received as Exhibit P2.

While Police Form 24 is in respect of the medical examination of A1 and A2 and were admitted as Exhibit P3 and Exhibit P4 respectively.

**The burden and standard of proof:**

- 15 This being a criminal trial it is one in which the Prosecution has the burden of proving the case against the Accused persons beyond reasonable doubt. Any doubts unless fully explained must be resolved in favour of the Accused and the Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the defence case. - 20 **See: Ssekitoleko versus Uganda (1961) EA 531.**

**Ingredients of the Offence.**

The Prosecution must prove each of the following essential ingredients beyond reasonable doubt for the Accused to be convicted of Murder.

- **1) Death of a human being.** - 25 **2) The death was caused by some unlawful act.** - **3) The unlawful act was actuated by malice aforethought.**

- 5 4) **That it is the Accused who caused the unlawful death**. - **1) Death of a human being.**

Death may be proved by production of a post-mortem report or evidence of a witness who states that they knew the Deceased and attended the burial or saw 10 the body.

It is the evidence of Niyibizi Lydia (PW1) that Kwizera Jerome was her son and that he was assaulted in the night of the 16/06/2022 and died as a result of his injuries at Mutolere Hospital. That he was buried around the 23/06/2022. Her evidence is corroborated by that of Oliver Giringo (PW4) her daughter and sister

- 15 to the Deceased Kwizera Jerome who testified that Kwezera Jerome died as a result of his injuries on the 23/06/2022 at Mutolere Hospital. D/CPL Turyatunga Godwin (PW5) also testified to viewing the body of the Deceased Kwizera Jerome on the 24/06/2022 in the sitting room of a house in Gasovu village and that burial arrangements were underway at the time. - 20 Corroborative medical evidence can be obtained from the post mortem report in Exhibit P2 that details the cause of death as being as a result of deep cut wounds to the head.

The two Accused persons in this case did not contest the fact that Kwizera Jerome is dead.

25 It is therefore an admitted fact.

It is my finding that the Prosecution has proved beyond reasonable doubt that Kwizera Jerome is dead.

5 **2) That the death was caused by some unlawful act.**

The law presumes that any homicide (killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law.

**See R versus Gusambizi s/o** of **Wesonga (1948) EACA 65.**

- 10 It is the evidence of Niyibizi Lydia (PW1) and Oliver Giringo (PW4) that in the night of the 16/06/2022 at around 10:00PM they heard sounds being made outside their house and when they rushed out they found Kwizera Jerome lying down and blood was oozing from his head and neck. That he was rushed to Mutolere Hospital where he later died on the 23/06/2022. The post mortem - 15 report in Exhibit P2 details his cause of death as resulting from deep cuts to his scalp.

There is absolutely no evidence on record that suggests that the death was either accidental or authorized by law.

I therefore find that the Prosecution has proved beyond reasonable doubt that the 20 death of Kwizera Jerome was unlawful.

**3) That the unlawful act was actuated by malice aforethought.**

**Section 174** of the **Penal Code Act** provides that malice aforethought may be proved by direct evidence or may be inferred from the evidence indicating 25 knowledge that the conduct of an Accused person would probably cause the death.

Malice aforethought may also be inferred in regard to the following:

- *a) The weapon used that is whether it was a lethal weapon or not.* - *b) The part of the body that was targeted that is whether it is a vulnerable part or not.* - *c) The manner in which the weapon was used that is whether repeatedly or* 10 *not, or number of injuries inflicted.* - *d) The conduct of the Accused before, during and after the incident that is whether there was impunity.*

**See R Tubere s/o Ochen (1945)12 EACA 63.**

- 15 It is the evidence of PW1 and PW4 that on the 16/06/2022 when they found the Deceased he was lying in a pool of blood with injuries to his head and neck. John Bosco Ndizeye (PW2) a nurse attached to the causality ward at Mutolere Hospital who attended to the Deceased Kwizera Jerome described him as having multiple cut wounds. This is well corroborated by the post mortem report in Exhibit P1 - 20 that indicates that the Deceased suffered multiple deep cut wounds to his scalp. The head is a sensitive and vulnerable part of the body that when targeted can lead to death.

**See Okello Okidi versus Uganda, SCCA No. 0003 of 1995.**

In the present case the decision by the assailants to target the head of Kwizera

25 Jerome to which they occasioned multiple deep cuts leaves no doubt in my mind that the intention of his assailants was to cause his death which they ultimately were able to achieve.

5 It is my finding that the Prosecution has proved beyond reasonable doubt that the unlawful death of Kwizire Jerome was actuated by malice aforethought.

**4) Participation of the Accused persons.**

Hospital where he was admitted.

To prove its case, the Prosecution relied on the testimony of Niyibizi Lydia (PW1) who testified that she knew both Accused persons. She identified A1 as Dusabe 10 Michael commonly referred to as *"Boy"* and A2 as Nsabimana commonly known as *"Kadogo"* both are her neigbhours.

It is her evidence that on the 16/06/2022 at around 10:00PM as she was in the house she heard sounds outside the house by her son who was dumb and weapons like pangas banging. That she ran out of the house and found her son the Deceased 15 lying in a pool of blood that was oozing from his head and neck and she raised an alarm. It is also her evidence that she was in the presence of her daughter Oliver Biringiro (PW4) According to the witness (PW1) the heart of her son Kwizera Jerome was still pumping and they bandaged him then took him to Mutolere

- 20 Lydia (PW1) states that her son was dumb but had studied up to P6 in the school for the deaf and blind. That the following day her son requested for a piece of paper and pen on which he wrote the names of the people who attacked him and that this was written in English and handed over to her by the Deceased when she returned to the Hospital. - 25 It is her evidence that a young man at the Hospital read the names to her and they were Nsabimana Kadogo and Boy Michael also Nsabagasanyi Moses who escaped and it still at large.

5 PW1 states that she took the piece of paper on which the names were written to the LC1 chairperson Elisa Ntibaryuwa (PW8) who kept it. The witness was shown the document that she identified as being the one written by the Deceased and it was admitted as Exhibit P5.

Exhibit P5 was dated 16/06/2022 it commenced with the names of the deceased

10 *"Kwizera Jerome Gasovu (*Gasovu being the address as a village*) 3 names are then* listed and numbered as **1***) Kadogo Rutwe 2) Kidemu Rutwe 3) Boy. Other writings* below this were *"kill light Jerome to hair blood"*

According to Lydia (PW1) her son's condition continued to worsen and he later died at Mutolere Hospital. The witness maintains that it is the Accused persons

15 who killed her son and that using sign language which she had also learnt the Deceased wrote on his arm *"b & o" to indicate "boy" and "kao" for "Kadogo".*

Her evidence is corroborated by that of Oliver Giringo (PW4) a daughter to Niyibizi Lydia (PW1) and sister to the Deceased Kwizera Jerome.

It is the testimony of Oliver (PW4) that she together with the Deceased Kwizera

20 used to live together with their mother (PW1) and on the 16/06/2022 at around 10:00PM they heard some one groaning.

That together with her mother (PW1) they moved out of the house and found Kwizera Jerome in a pool of blood with injuries to his head and they raised an alarm.

25 It is her evidence that he was later admitted at Mutolere Hospital where she went to check on him the following day at around 2:00PM. According to Oliver (PW4) she used to communicate with the Deceased using sign language and that he

5 showed her a piece of paper on which he had written the names of the people who had assaulted him. That he pulled the paper from his pocket and the names on the paper from his pocket were Kadogo, Kademu and Boy. That the Deceased was discharged on 20/06/2022 but his condition worsened and he was re admitted on 23/06/2022 when he died. It is her evidence that the two Accused were arrested after the death of Kwizera Jerome but the 3rd 10 Kidemu a brother to A2 is still at large.

The Prosecution presented John Bosco Ndizeye (PW2) a nurse attached to the causality ward in Mutolere Hospital who testified that in June 2022 he was deployed at Mutolere Hospital causality ward and that on the 16/06/2022 a 15 patient one Kwizera Jerome was admitted in the night and that he attended to

him on the 17/06/2022 as the ward nurse.

According to John Bosco (PW2) the patient had multiple cut wounds and he was deaf and dumb but would communicate by sign language with his mother.

It is the evidence of PW2 that the patient asked for a pen and paper to write the 20 names of the people who assaulted him and he did this using sign language.

According to PW2 he provided the pen and paper to Kwizera Jerome who then wrote 3 names of the people who had assaulted him and he did so while on his bed.

That the list was handed over to him by Kwizera Jerome and he in turn passed 25 the same to the patient's mother.

5 The 3 names on the piece of paper he states were Kadogo Rutwe, Kidemu Rutwe and Boy. Further that the patient Kwizera Jerome dated the paper 16/06/2022 and also wrote that there was blood on his hair.

PW2 described the piece of paper on which the names were written and identified Exhibit P5 as the piece of paper on which Kwizera the patient had written the

10 names. The witness also maintained that the mother (PW1) of Kwizera Jerome was present during this entire process.

Ntibaryurwa Elisa (PW8) testified that he is the Local Council One chairperson and the Accused persons are known to him as village mates. It is his evidence that on the 22/06/2022 Niyibizi Lydia (PW1) brought him a letter that had 3 names of

15 people that she told him had assaulted her son Kwizera Jerome. The names he stated were Boy, Kadogo and Kidemu.

It is his evidence that when Kwizera Jerome died he decided to take the letter to Kisoro Police Station and he handed it over on the 24/06/2022. That he was given Police officers to effect the arrest of the three but Kidemu was able to escape and 20 was not arrested. The witness (PW8) identified Exhibit P5 as the letter that had

been given to him by PW1.

The Prosecution presented Nigena Fortunate (PW7) a bar owner who testified that on the 16/06/2022 at around 10:00PM Kwizera Jerome the Deceased went into her bar and bought a bottle of soda that he began to drink. According to 25 Fortunate (PW7) Kadogo (A2) was one of the customers in the bar that night. The witness states that later she informed her customers that she wanted to close the

bar and they left with Kadogo (A2) leaving a head of the Deceased Kwizera 5 Jerome. It was the following day she states that she learnt of the death of Kwizera Jerome.

The investigation officer D/sgt Tumwesigye Francis (PW6) testified that he together with a team of detectives visited the scene at Gasovu village where they found the body of the Deceased Kwizera Jerome and the mother Lydia (PW1) told

- 10 them that the Deceased had written a document naming the people who had assaulted him and that the same was in possession of the Chairperson Local Council one. According to the witness PW6 he later retrieved this document that was dated 16/06/2022 with 3 names of people and these were Kadogo Rutwe, Kidemu Rutwe and Boy. - 15 He identified Exhibit P5 as the document that he was making reference to.

Dusabe Michael (A1) in his sworn defence denied the indictment testifying that on the 16/06/2022 he went to work in Kisoro Town and after his work he did not pass anywhere but went back home directly arriving at 8:00PM.

It is his evidence that he was arrested on the 24/06/2022 from his home over the 20 death of Kwizera Jerome but that he had taken 3 months without meeting Kwizera Jerome.

A1 states that prior to his arrest he had never been summoned to appear before any authority, the mother of Jerome had never approached him over anything and the Local Council one chairperson also had never approached him. 25 Furthermore, he denies meeting Kidemu on the 16/06/2022 and that he has never had a grudge with the Deceased Kwizera Jerome. A1 also admitted that his

5 nickname was *"Boy"* and that he and the Deceased Kwizera Jerome were neighbours who knew each other and both resided in Gasovu village.

A1 presented his wife Nyirabakunzi Sharron Anna (DW1) who testified that A1 is her husband and that on the 16/06/2022 A1 returned home at 8:00PM after the news had been read. That she prepared supper and they slept at around 9:300PM.

- 10 Nsabimana Richard (A2) in his sworn defence denied the indictment testifying that on the 16/06/2022 he together with his mother Venice Ntibakunze went for burial in Nshora village in Kabindi of one Annet Tumwesigye and that the burial was concluded at 6:00PM. According to A2 on his way home he passed by Fortunate's (PW7) bar where he purchased Riham Soda and found many people - 15 there. A2 states that he does not know if Kwizera Jerome was one of the people in that bar but that he did not even spend 30 minutes there and he got home at 8:00PM.

A2 denies meeting Kwizera Jerome on the day in issue of the 16/06/2022 nor did he meet Dusabe (A1). It is also his evidence that he has no grudge with the 20 Deceased Kwizera Jerome or his family. A2 admits that his nick name is "Kadogo" and that it is true that his younger brother is Kidemu A2 presented his mother Vanice Tibekunze (DW2) who testified that on the 16/06/2022 she went for burial with A2 her son in Kyora village which ended at around 3:00PM and that she and the others left A2 behind still helping with arranging seats. It is the testimony of

25 Vanice that A2 later returned home at 8:00PM and did not leave home after that. The law is now settled that an Accused person who sets up an alibi as a defence does not assume any burden to prove it. It is the duty of the Prosecution to 5 disprove it by adducing evidence that will place the Accused at the scene of crime at the material time.

**See Sentale versus Uganda [1968] EA 365.**

The thrust of the Prosecution case in this matter rotates around circumstances that lead to Exhibit P5 which in effect can be termed as a dying declaration.

10 **Section 30** of the **Evidence Act** governs the admission of dying declarations made by a person who is dead as to the cause of death.

**The Section provides as follows**:

*"Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose* 15 *attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the Court unreasonable, are themselves relevant in the following cases: -*

- *(a) When the statement is made by a person as to the cause of his or her death, or as to any circumstances of the transaction which resulted in his* 20 *or her death, in cases in which the cause of the person's death comes into question and the statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the cause of his or her death comes into question"* - 25 The Supreme Court in **Tindigwihura versus Uganda SCCA No. 0019** of **1987** had this to say regarding dying declarations.

5 *"… evidence of a dying declaration must be received with caution, because the*

*test of cross examination may be wholly wanting' and the particulars of violence may have occurred under circumstances of confusion and surprises; the Deceased may have stated his inference from facts concerning which he may have omitted important particulars, for not having his attention called to them. Particular*

- 10 *caution must be exercised when an attack takes place in darkness, when identification of the assailant is usually more difficult than in day light. The fact that the Deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case; it is no guarantee of accuracy. It is not a rule of law, that in order to support a conviction there must* - 15 *be corroboration of a dying declaration as there may be circumstances which go to show that the Deceased could not have been mistaken. But it is generally speaking, very unsafe to base a conviction solely on that dying declaration of a Deceased person made in the absence of the Accused and not subject to cross examination unless there is satisfactory corroboration"* - 20 In the present case the Prosecution has led credible evidence that proves that Exhibit P5 was authored by the Deceased Kwizera Jerome.

The testimonies of PW1, PW2, PW4 and PW8 has been cogent and consistent in this regard.

The defence it is my considered opinion has not been able to rebut this position.

25 This Court observes that while Exhibit P.5 does not specifically state that the listed persons are the ones who assaulted the Deceased, the evidence of PW1, PW2 and PW4 makes it crystal clear that the Deceased Kwizera Jerome in requesting for 5 the piece of paper and pen did so in order to write down the names of his assailants.

The consistency of this version is that when PW1 handed the same to PW8 on the 22/06/2022 she notified him that it contained the names of the assailants who had attacked her son Kwizera Jerome who at the time was still alive.

10 I have not found any evidence to suggest that Exhibit P5 was propelled by any grudge, ill will or malice on the part of the Deceased.

As already highlighted above the evidence in Exhibit P5 must be received with caution given that it is impossible to subject the author to any form of cross examination and this present case particular caution must be exercised because

15 the attack took place at around 10:00PM in the night and this being a time that makes identification usually more difficult than in the day light.

In practice Courts usually seek for corroborative evidence in cases involving dying declarations though I must hasten to add that by law Court may convict on the uncorroborated evidence of a dying declaration if circumstances exist to show

20 that the Deceased was not mistaken.

**See Mibulo Edward versus Uganda SCCA No. 0017 of 1995**.

It is the evidence of Lydia (PW1) that there was bright moonlight in the night of the 16/06/2022 when she together with Oliver (PW4) moved out of the house and observed that Kwizera Jerome was lying in a pool of blood with deep cuts to his

25 head. It is trite law that light given off by moonlight can indeed aid in identification.

5 **See Bogere versus Uganda S. C. C. A No. 0001 of 1997.**

I find no reason to doubt the truthfulness of Lydia (PW1) that there was moonlight on the night in issue that aided in identification and the Deceased had benefit of the same. According to Exhibit P2 the Deceased suffered multiple deep cuts to his head. It is quite clear that this assault was not one that took a few seconds. It 10 obviously took some time and the deep cuts were caused with the use of sharp objects that require close proximity if the assailant wants to deliver fatal blows as was the case in the instant scenario.

The duration of the attack and proximity of the attackers with the Deceased Kwizera Jerome and prior knowledge of his assailants who are neighbours all 15 aided in his identification of the assailants that he later in Exhibit P5 was able to reduce into writing. I am therefore persuaded that the factors in place and the mode of the commission of the offence all favoured proper identification of Kwizera's attackers.

The evidence of Fortunate (PW7) that the Deceased and Kadogo (A2) were both 20 in her bar at around 10:00PM and A2 left the bar before the Deceased Kwizera Jerome was wholly uncontested by the defence that declined to cross examine her. The evidence of Fortunate deserves further scrutiny. This is because her evidence contradicts that of Kadogo (A2) who testifies that he got home at 8:00PM having already passed by Fortunate's bar. A2 was obviously telling lies about being home

25 by 8:00PM. I accept the evidence of Fortunate that at about 10:00PM the Deceased and A2 were in her bar.

5 According to Fortunate and A2 there were other people in the bar besides A2 and Kwizera Jerome.

This begs the question as to why the Deceased Kwizera Jerome in Exhibit P5 mentions A2 and not the other people who he found in the bar on the night in issue. The only explanation is that those other customers did not attack him later

10 that night and it was A2 and A1 who did.

I am persuaded that the Deceased did not randomly write the 3 names on Exhibit P5 and I am fortified in this position by the testimony of Muwanga Ben (PW3) who testified that he spoke to one Frank who was last seen walking with the Deceased on the night in issue and that Frank told him that he had parted ways

15 with the Deceased about 1 kilometre away from the Deceased's home. No mention was made of Frank by the Deceased Kwizera Jerome. It would appear to me that the Deceased was not merely grasping at straws when he listed the 3 names including that of the present Accused persons.

It is interesting to note that immediately the names were made public Kidemu 20 brother to A2 on the list went missing and has since not been seen in the village as per the evidence of Elisa (PW8) the Local Council Chairperson. This obviously points irresistibly at the guilt of Kidemu and would appear to corroborate the dying declaration in Exhibit P5.

The Deceased Kwizera Jerome after authoring Exhibit P5 remained consistent on 25 the contents of the same as testified by Lydia (PW1) and Oliver (PW4).

I have critically analyzed Exhibit P5 and the surrounding circumstances in its formulation. I have been cautious in my approach.

5 I am convinced that the Deceased Kwizera Jerome was not mistaken in his identification of the two Accused persons as his assailants.

I entirely reject the defence of alibi raised by the two Accused persons as a work of fiction coined by them to escape their unlawful conduct.

After considering the evidence adduced by the Prosecution and the defence

10 together and in full agreement with the assessors it is my finding that the Prosecution has successfully proved its case beyond reasonable doubt and I find both Accused guilty of the offence of Murder contrary to **Section 188** and **189** of the **Penal Code Act** and accordingly convict them of the same.

Before me,

15 ……………………………….. **Samuel Emokor Judge 09/01/2025.**