[2022] UGHCCRD 97

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0057-2020

**UGANDA**

**PROSECUTOR**

### **VERSUS**

### **KAKAIRE ABDULATIFF ACCUSED** a.k.a FIDEL

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

### JUDGEMENT

The accused, Kakaire Abdulatiff a.k.a Fidel, is indicted with the offence of Murder contrary to sections 188 and 189 of the Penal Code Act. It is alleged in the particulars of offence that on the 19^th of April 2017, at Kanaba Kikubamutwe, Makindye Diviison in Kampala district, the accused with malice aforethought caused the death of **Godfrey Musinguzi a.k.a Baisha.**

**Kakaire Abdulatiff a.k.a Fidel** pleaded 'not guilty' prompting the prosecution to call 4 witnesses to prove its case. Two documents, the Post Mortem report and the medical examination of the accused person were agreed by the parties under Section 66 of the **Trial on Indictments Act.**

The brief case for the prosecution is that one Godfrey Musinguzi aka Baisha and the accused were friends and at one time shared the same house. They both worked as parking guides at De Posh Bar On the 19^th April 2017, the said Baisha was in a bar in Kabalagala. Just before morning the deceased was with friends in

$\mathbf{1}$

a bar when one Prossy, the accused person's girlfriend, got drunk and started insulting the deceased. That the deceased slapped Prossy who fell down. After a while, between 7.30 and 8.00 am, the deceased and his girlfriend PW2 – Alango Margret left the bar heading for their home in Kanaba. As they emerged from a corridor, the accused emerged from armed with a knife and stabbed the deceased through the chest. The deceased sank to his knees and died.

The accused fled the scene and was not arrested until March 2019 from Iganga district. He was subsequently charged with this offence.

The post mortem showed that the cause of death haemorrhage inflicted by a sharp edged object.

The medical examination of the accused on Police Form No 24 showed him to be of a sound mental status.

There were also photographs taken of the deceased as he lay at the scene of crime.

When he was put to his defence, the accused elected to keep quiet.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (Okethi Okale vs R 1965 E. A 555). The standard of proof is beyond reasonable doubt (see **Kamesere Moses vs Uganda S. C. C. A** 8/1997 (unreported).

Ms Amy Grace was Counsel for the Prosecution while Mr Muhwezi Anthony appeared for the accused person on a State brief.

With regard to charges of Murder contrary to sections 188 and 189 of **the Penal Code Act** the essential elements are:

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- $i.$ There was a death - The death was caused unlawfully ii. - iii. With Malice aforethought - The accused participated. iv.

#### There was a death $i.$

In their submissions, counsel for the accused did not dispute the death of the deceased. PW 1, Mugabi Christopher Baisha told the court that the deceased Godfrey Musinguzi a.k.a Baisha was his elder brother. That on the morning of the 19^th of April 2017 he was informed that his brother had died at Kanaba in Kukubamutwe in Makindye division. He went to the scene and indeed found his dead brother body. that together with an uncle Emma Mbonigaba they accompanied the body to Kabalagala Police and then to the Mortuary in Mulago. A post mortem was carried out by a doctor Kalungi who reported that the body was identified to him as that of Musinguzi Baisha. The deceased buried on the 21^st of April 2017 in Rugonjo town Kamwenge District. PW 2 - Alango Immaculate, and PW 4 – Salim Fernandes Papu also knew the deceased. PW 2 was his girlfriend and PW 4 his long term friend who all conform the deceased is dead. In light of the foregoing there is overwhelming evidence that Godfrey Musinguzi a.k.a Baisha is dead.

The first element of the offence of the offence is therefore proved.

#### The death was caused unlawfully ii.

The position of the law is that all homicides are presumed to be unlawful unless authorized by law or proved to have been accidental or excusable (see Gusambizi s/o Wesonga [1948] 15 EACA 63). This finding is an inference to be drawn from the facts of a particular case.

I shall consider this element jointly with the next.

#### **With Malice aforethought** iii.

In this case the evidence is that the perpetrator emerged from a corridor and drove a knife through the deceased person's chest. There are pictures allegedly of the

deceased said to have been taken shortly after the incident. In one the deceased has fallen forward on his knees with his head, resting on a veranda, turned to his right. There is a trail of blood flowing away from the body. A knife with a blade about 8 inches long lies by his right foot. These pictures were tendered in evidence. PW 1 stated that he took the photographs using his phone and had them printed. It was those same copies tendered in Court. Because the chain of evidence was complete the photos were accepted in evidence.

PW 2 stated that she saw the deceased stabbed in the chest and sink to his knees. The blade remained lodged in his body. That he held the knife and pulled it out. As soon as he did so the deceased collapsed and died almost instantly. PW 4 demonstrated to the court that he saw the body and stab wound on the deceased and it was on the chest near the heart.

The post mortem report indicates that the there was a laceration through the right ventricle that went 'through and through'.

Malice aforethought is provided for in S. 191 of the Penal Code Act and is deemed to be proved by evidence showing a positive intention, by the accused, to cause death although such knowledge is accompanied by an indifference whether death is caused or not.

Courts have found that Malice aforethought is not easily proved by direct evidence, as intention resides in the mind. For that reason, the High Court and superior courts have held in a long line of decisions, that malice aforethought can be inferred from: the type of weapon used; the nature of the injuries inflicted; the part of the body affected; and the conduct of the perpetrator before and after the attack. (See Amis Katalikawe & 2 Ors V Ug SCCA 17/94 Unreported).

Looking at the nature of injuries described in the post mortem report. The deceased was stabbed directly into the right side of the heart. The laceration went through and through. PE 3, the photograph, shows the knife lying by the body.

As stated it had a long blade and would explain the 'through and through' stabbing of the heart. Without a doubt the heart is a life essential organ of the human body. Any injury of this sort would result in death. The fact that the blade was driven into the heart of the deceased by another would render this a homicide. The circumstances do not indicate any lawful excuse for the act or show it have been accidental. It was therefore unlawful.

What more there was a positive intention to use the knife on the deceased. Therefore considering the nature of the weapon and body part targeted there is no doubt that malice has been established in this case.

In light of the above the $2^{nd}$ and $3^{rd}$ elements of the offence have been established.

### Whether the accused person participated in the commission of the $iv)$ offence

In his defence, the accused, Kakaire Abdulatiff a.k.a Fidel, elected to remain silent. That notwithstanding, this court reminds itself that the accused enjoys a presumption of innocence. The burden remains on the prosecution to prove the elements of the offence regardless of the silence of the accused.

Alango Immaculate, PW 2, was the girlfriend of the deceased. She lived with him and they had been in a relationship for 10 months before his death. She stated that in this time she knew the accused well as a friend of her boyfriend. They worked together as parking guides for cars at the De Posh Bar in Kabalagala. From the evidence of PW 4, another friend, the accused person lived next to the deceased and even shared house hold utensils.

The accused had a girl friend called Prossy. She used to be a friend of the deceased. However, when he started a relationship with PW 2, their friendship soured and that annoyed Prossy who was known to heap abuse on the deceased whenever she got drunk.

On the 19^th of April 2017, the deceased was in a bar called Basiima bar found in Kabalgala. He was playing pool watched by his girlfriend PW 2. Prossy was also in the bar drinking. Just before dawn Prossy started to abuse the deceased. It is said that the deceased slapped Prossy. As PW 4 sat in the bar, the accused came and sat beside him. He looked angry and said to PW 4 that the deceased had beaten his girlfriend. Then he waked away.

PW 2 stated that at 7.30 am, the deceased and herself left the bar and walked home to Kanaba. She was walking just behind him because the area was narrow. As they got to their place, the accused emerged from a corridor and stabbed the deceased in the chest. The accused immediately fled the scene and was not apprehended until almost 2 years later.

It is the law that an identification, just like any other fact, may be proved by the testimony of a single witness. This rule however, does not lessen the need for testing, with the greatest care, the evidence of a single witness respecting identification (see Roria V R 1967 E. A. 583). As a result, such evidence must be thoroughly analysed to avoid the possibility of a mistaken identity. Indeed, a mistaken witness may be very persuasive and sincerely believe the mistaken identification they have made to be correct. I therefore warn myself as I warned the assessors of this danger.

The court should therefore examine such evidence scrupulously. It is for this reason that courts have developed guidelines to test the quality of identification evidence by scrutinising the light conditions; the familiarity of the witness with the accused; the length of time observing the incident; and the distance from which such observation is made (see Abdalla Nabulere and Ors V Ug Cr App 1/1978). The accused was well known to PW 2 and she recognised him instantly as her husband's friend, work colleague and neighbour. When he stabbed the deceased, Alango was right next to him and saw the accused and events unfolding clearly.

There was no impediment to a correct identification considering it was between 7.30 am and 8.00 am which is broad day light.

What is more, the accused fled the scene immediately. He was not arrested until March 2019 from Iganga where he had gone to stand surety for a brother who had been arrested for assault.

The accused person escaped from the scene and remained a fugitive for almost two years.

It has been held by the East African Court of Appeal in Terikabi v Uganda [1975] 1 EA 60 held that the conduct of fleeing a scene of crime for several months would furnish sufficient corroboration for a dying declaration. In much the same way, I find that the accused fled the scene and disappeared for another two years. That conduct would provide proper corroboration of the identification made by PW 2.

In light of the above I find that the prosecution has proved the fourth element of the offence, the participation of the accused, to a degree beyond reasonable doubt.

The assessors have advised this court to find that the accused is guilty. In agreement with the assessors, this court finds and holds that Kakaire Abdulatiff **a.k.a Fidel** is *guilty* on the offence of Murder Contrary to Sections 188 and 189 of the PCA and are hereby convicts him.

Dated at Kampala this ....................................

**Michael Elubu**