[2025] UGHC 148

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT APAC CRIMINAL SESSION CASE NO. HCT-10-CR-SC-0289 OF 2024**

10 **UGANDA…………………………………..…………………………. PROSECUTOR VERSUS KIA RAFELA………………………….…………………………….…….. ACCUSED** 15

BEFORE: HON. MR. JUSTICE GEORGE OKELLO

## 20 **JUDGMENT**

In the indictment for murder, contrary to sections 171 and 172 of the Penal Code Act Cap 128, it is alleged that on 24 October, 2023, at Acekeleye Village, Oyam District, the accused, with malice aforethought, unlawfully 25 caused the death of Atim Franka. The deceased was approximately 3 to 5 years, and a daughter of Olum Ronald, the paternal uncle of the accused. The accused denies the allegation. Three witnesses testified for the prosecution after which court put the accused on her defence. She gave sworn evidence admitting she killed the deceased but asserts she was 30 demon-possessed and believes some unknown herbs she was treated with by a witch doctor had an effect on her thus making her kill the deceased.

She asked court to find her not guilty of murder but manslaughter.

From the above prefatory, the facts of the case are not so much in dispute 35 save for the element of malice aforethought which is one of the ingredients

## 1

- 5 of murder. So, whereas the prosecution contends that the accused acted with malice aforethought, the defence denies the claim. I, therefore, proceed to summarize the evidence on record after which I shall consider the law in light of the evidence given by the two sides. - 10 Okori Denis who was the first prosecution witness testified that he knew the accused before the incident. That she was resident in a neighboring village within Iceme Sub County, Oyam District. PW1 was in a garden digging within his home Village of Abongo-Awobi on 24 October, 2023 when he saw the accused person in a near-by bush with both hands raised - 15 as if pleading for help. The accused had her baby latched on her back. She asked PW1 to take her to the home of the Local Council 1 Chairman (of Abongo-Awobi Village). Asked why she wanted to see the Chairman, the accused kept quiet but was exuding a panicky demeanour. PW1 obliged and took the accused to the home of Odongo Alex, the area Chairman of - 20 PW1's Village. Odongo was not at home but his wife- Abeja Anyess was. The accused entered the house of Anyess very fast. While inside, she called Anyess and PW1 who joined her. The accused told them she had killed the child of Olum- a girl child by cutting her with a short-hand hoe (kidima). Anyess telephoned her husband but his phone was not going through. She - 25 then telephoned the Chairman of the area where the accused hails from (Acekeleye Village) and reported the matter. Soon, Police Officers came with the Chairman (Odongo Jolly Joe) and took the accused away. PW1

5 later saw the body of the deceased at the accused's compound where Police and residents had brought it, having retrieved from a bush. The baby's neck at the back of the head was cut with a hoe.

Anyess Abeja (PW2) who knew the accused confirms what Okori told court.

- 10 The accused used to live at her parent's home in Acekeleye Village- a village that neighbours Abongo-Awobi (that of the witness). The accused was once married in Ayer, Kole District, and had returned home due to sickness which PW2 was clueless about. PW2 also knew the deceased- Atim Franka, a baby of about 3 and half years. She was Olum's child and a resident of - 15 Acekeleye Village. The child died on 24 October, 2023 and was buried the following day (25/10/2023) although PW2 did not attend the burial ceremony. According to PW2, on 24/10/2023 at about 10:00Am, the accused came to PW2's home with a baby on her back. The witness had just returned from the garden and was opening the door to her house. The - 20 accused walked very fast and stormed into the house saying she had done something wrong. Asked, she said she had killed the child of Olum. PW2 alerted her husband who was not at home (Ojok Ambrose) and later LC1 Chairman of Acekeleye (Odongo Jolly Joe). Police Officers came. It was PW1 (Okori) who entered the house and brought the accused person 25 outside. Police took the accused person away to Iceme Police Post on a motorcycle. Other Police Officers proceeded to the crime scene. At the scene, PW2 saw the body of the deceased in a swampy area where black

- 5 soil is usually collected by women for smearing untiled/uncemented house floor. The deceased's body was partially covered with black soil but the legs, the buttocks and the head were visible. The back of the neck was cut with a hoe and only a small tissue held it to the head. - 10 The LCI Chairman of Acekeleye- Odonogo Jolly Joe (PW3) testified that the accused was a resident of his village. He also knew the deceased who died on 24/10/2023. She was approximately 03 years old. The witness spoke about the telephone call by PW2 and the narrative that the accused was at PW2's house and had confessed to killing the deceased- a child of Olum - 15 Ronald. The witness reported to Iceme Police Post and went with Officers to the home of PW2. He found the accused who was brought out from the house of PW2. She was arrested and taken to Iceme Police Station. PW3 and Police Officers and villagers proceeded to search for the dead body. The body of Atim Franka was found near a swamp where the accused had - 20 gone to dig and collect black soil. According to PW3, the accused told him and others that she had killed the child while at that place. This was after a phone call to the accused through a Police Officer who was with her at the station while the team on the ground searched for the dead body. The accused directed PW3 on telephone on where to find the dead body. That 25 is exactly where the body was found. The deceased lay on her stomach with the back of the neck cut. The baby had under-pant only. The body

was taken to the home of the accused's parents from where a postmortem

5 was done. The deceased was buried on 25/10/2023 at her grandfather's home (Ojok Patrick). PW3 attended the burial.

In her defence, the accused (DW1) stated that she used to reside in Acekeleye village at her parents' home, in Iceme Sub County, Oyam

- 10 District. Previously she was married in Te-Sambya Village, Ayer Parish, Ayer Sub County, Kole District. While at her marital home, DW1 was demon-possessed. This attributed to her returning home. The demon possession started after her surgical operation in April, 2023. Prayers were attempted while at the marital home in vain. So her parents were asked to - 15 make their own attempts hence her removal from the marital home. While at the parents' home, the accused was taken to a witch doctor where she stayed for 06 days. A goat and chicken were slaughtered by the witch doctor and their blood sprinkled on the accused's body. Olum Ronald (the bereaved Dad) was present. He is an uncle of the accused. The witch doctor - 20 spoke with Olum as he sprinkled blood on the accused's body. The ritual of blood sprinkling happened on day one. On day two, three and four, the witch doctor undressed the accused, and winnowed her with a winnower and an animal skin. On the 5th day, nothing happened to the accused. It was on the 6th day that the witch doctor cut the whole of the accused's 25 body with razor blade and applied some herbs. The herbs were unknown to the accused. The accused returned home (Grand-Mother's home). The accused lived with the grand-parents.

Regarding the allegation of murder, the accused stated that the child- Atim Franka is dead. She was a child of Olum Ronald, an uncle. She died in October, 2023. On the day in question, she first went to harvest cassava, and went back home at about 9-10 Am. The deceased was at home playing

- 10 with Okaka- another baby. The accused then picked a basin and a hoe to go and dig/collect black soil for smearing the parents' (grand-parents') house. It was a 10 minutes' adult-walk from home. The accused had her child on her back. While digging the black soil, the accused turned and saw the deceased behind her. The place was water-logged. The deceased - 15 subsequently moved in front of the accused. The accused continued digging the black soil. To her surprise, the accused found when she had cut the neck of the deceased. She cut the deceased once. The baby fell down and started kicking- struggling for life. The accused ran amok in search for people. People were not at their homes. She met Okori Denis - 20 (PW1) who was digging. She pleaded for help and Okori took the accused to the home of Anyess (PW2). Okori narrated to Anyess what the accused had told him. According to the accused, what Okori told Anyess was correct. Anyess opened the door to her house and the accused sat in her sitting room on the floor. Anyess locked the accused in her house and kept 25 communicating on phone. Police came and took the accused to Iceme Police Post on a motor cycle. Later, she was transferred to Oyam Police

Station. The accused never intended to kill the deceased and she had no

- 5 grudge against her uncle (father of the deceased). The accused stated that she did not carry the baby in an attempt to save her life as people were many, and she also did not make an alarm because she had not seen people around. She clarified that when she cut the baby, the baby was squatting. Asked by her counsel what could have made her cut the 10 deceased, the accused stated that she believed that what the witch doctor - did on her body is what prompted her to cut the deceased to death.

In cross examination, the accused conceded that she once wanted to hit her grandmother (Kia Neku) with a hammer because the latter had refused 15 to disclose to her what herbs the witch doctor had applied on her body, and that she was arrested by the Police over the incident. She also conceded that when the grand-mother was not forthcoming, the accused believed that Olum Ronald and grandmother were wizard and witch, respectively. She, however, denied that the cutting of the deceased to death 20 was in revenge against the deceased's father and grandmother for their refusal to disclose the herbs the witchdoctor applied on her body. The accused stated that she was, however, angry with the grand-mother only (and not Olum) as the grand-mother is the elder but the anger did not prompt her to kill the baby. She claimed she could lose consciousness due 25 to the attack by the evil spirit. In re-examination, the accused stated that she believed the herbs applied by the witch-doctor started working on her, hence her cutting of the deceased. She maintained that she had no grudge

5 against the father of the deceased. And that Mr. Olum's refusal to disclose the name of the herbs did not make her develop any grudge against him.

The learned Defence Counsel Ms. Nakibira Brenda from the Law Development Centre Legal Aid Clinic, Lira, appeared for the accused on

- 10 State Brief while Mr. Nandhuki Ivan Jonathan, Senior State Attorney, and Mr. Owor Lewis, State Attorney, jointly represented the Prosecution. Ms. Aceng Beatrice and Ms. Adongo Janet were the assessors in this trial. In their brief final oral address, learned counsel for the defence and the prosecution submitted on the law and the evidence. I shall not reproduce - 15 their submissions but shall bear them in mind in rendering this Judgment.

The following are the ingredients of murder

- **i) Death of a human being occurred** - 20 **ii) Death was caused by an unlawful act** - **iii) The unlawful act was actuated by malice aforethought** - **iv) It is the accused who caused the unlawful death.**

Before I consider the above elements, I shall be guided by key principles 25 in a criminal trial. The first is the burden of proof which is always on the prosecution given the accused's constitutional right to presumption of innocence under article 28 (3) (a) of Constitution of Uganda, 1995. The

- 5 prosecution therefore, bears the burden of proving the guilt of the accused person beyond reasonable doubt. See: *Woolmington Vs. Director of Public Prosecutions [1935] A. C 462*; *Chan Kau Vs. R [1955] A. C 206*; *Uganda Vs. Dick Ojok (1992-93) HCB 54.* - 10 The Prosecution must thus prove each and every ingredient of murder against the accused person beyond reasonable doubt. Proof beyond reasonable doubt, however, does not mean proof beyond the shadow of doubt. The degree of proof need not reach certainty as court could end up considering fanciful possibilities with the potential of deflecting the course - 15 of justice. What is required is strong evidence against the accused person that leaves only a remote possibility in her favour. Thus if this court finds on the evidence that what the accused person is accused of, is possible, and not in the least probable, then the standard of proof would have been met and nothing short of that suffices. See: *Miller Vs. Minister of Pensions* - 20 *[1947] All ER 272, at 373-374*, per Lord Denning.

The accused person does not assume any burden of proof in light of section 101 (2) and section 103 of the Evidence Act Cap 8. The burden of proof is thus always on the prosecution. See: *Mahyara S/O Malakoni Vs. Reg.*

25 *(1955) 22 EACA 502*. If there is any doubt in the prosecution case, the accused should take the benefit of the doubt. And any defence even if not raised by the accused but if there is evidence of, the court must avail it to

 - 5 the accused person. See: *Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991*; *Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015*; *Mancini Vs. DPP (1942) AC 1*; *Didasi Kabengi Vs. Uganda (1978) HCB 216.* An accused can only be convicted on the strength of the prosecution case and not because of weak defence. See: *Sekitoleko Vs. Uganda, [1967] EA* - 10 *531*. The court at the end of the case must ask itself: Is the legal burden discharged? Has the Prosecution proved the guilt of the accused beyond reasonable doubt? Thus in a criminal case, all matters must be strictly proved. The State cannot, for instance, solely rely on concessions made by the accused person. See: *FW Crowie Vs. R [1961]1 EA 38 (CAN)*. Court must - 15 evaluate all items of evidence on record. That is, both the prosecution evidence and the defence, if any. This duty of court was stated by the Supreme Court in *Abdu Ngobi Vs. Uganda, S. C Crim. Appeal No. 10 of 1991* in the following terms: - 20 **"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon** 25 **the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused**

**must be acquitted; but if the defence has not raised a doubt that the**

5 **prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged."**

I now proceed to evaluate the evidence adduced by both sides in light of 10 the ingredients of the offence.

Death of a human can be proved by oral evidence and as well as medical evidence. In the instant case, Post Mortem Report which was admitted in evidence as PEX1 shows that the body of Atim Franka was identified to the

15 Senior Medical Officer- Otwal Health Centre III, Ayo Denis by Olum Ronald. The prosecution witnesses and the accused all testified that Olum was the father of the deceased child. PEX1 shows that Atim Franka died just as all witnesses told court. Accordingly, in agreement with the assessors, the death of Atim Franka, a child, has been proved by the 20 prosecution beyond reasonable doubt.

The law is that all homicides are legally presumed to be unlawfully caused unless it was accidental or it is authorized by law. See: *Gusambizi s/o Wesonga Vs. Republic [1948] 15 EACA 65*. Authorized death, for example,

25 is that permitted under article 22 of the Constitution of Uganda, 1995, where a convict sentenced to death by a competent court is killed in execution of death sentence by the hangman. It cannot be said the

5 hangman murdered a death row convict. The other example, arguably, is where life of an unborn child is terminated in circumstances where the life of the mother is in great danger if her pregnancy were to progress to full term. Also killing in self defence may be accepted in some circumstances. Accident also negatives murder.

In the instant case, the post-mortem report shows there was deep cut open wound on the right upper neck of the deceased. The deceased died as a result of multiple organ failures due to severe bleeding from the cut curtoid artery. The post-mortem also indicates heavy-hardened sharp object as

15 the probable weapon used. Both the prosecution and defence witnesses agree a short-hand hoe was used. Therefore, I hold that the death of Atim Franka was unlawfully caused. It was neither accidental nor authorized by law. I agree with the assessors in this regard. The prosecution has proved this ingredient of murder beyond reasonable doubt.

I will tackle the aspect of malice aforethought last as it is the contested ingredient by the defence. I thus next consider the participation of the accused person.

25 The participation of the accused in the death of Atim Franka is not in doubt. All the witnesses and the accused person agree that the accused cut the back of the deceased's neck with a short-hand hoe. The accused

- 5 told the witnesses about this, and the deceased's body was found at the scene where she directed PW3 and the Police to search. The totality of the evidence thus placed the accused at the crime scene as the perpetrator. I hold in concurrence with the assessors that this ingredient has been proved beyond reasonable doubt. - 10

Regarding the aspect of malice aforethought, section 174 of the Penal Code Act Cap 128 defines it as the intention to cause death of a person or knowledge by the person that his or her act will probably cause death. Being a state of mind, intention is difficult to prove through direct 15 evidence. Courts have, however, developed principles that guide when considering whether or not there was malice aforethought. They are; whether a deadly weapon was used; the manner in which it was used to inflict the injuries; whether a vulnerable part of the body was targeted;

whether the weapon was used in a ferocious manner, that is, the nature 20 of the blow; conduct of the accused person before and after the act. These guidelines were expounded in the case of *R Vs. Tubere s/o Ochieng [1945] EACA 63*.

Malice aforethought can thus be proved by circumstantial evidence or 25 medical evidence such as postmortem report. However, a postmortem contains findings as to the state of the body, injuries found on it, and an opinion as to the cause of death. It is thus not capable by itself of proving

- 5 malice aforethought the existence of which is not a question of opinion but of fact to be determined from all available evidence. Thus the test that malice aforethought can be inferred from part of the body inflicted by an unlawful act is more restricted to cases where a weapon has been used to commit a homicide. It is thus important that a weapon used to cause death - 10 be described to the Doctor carrying the postmortem or be observed by the Doctor for the Doctor to be able to state the effect of the weapon on the deceased in causing the injuries. This would guide court in estimating the *mens rea* of the accused. See: *Francis Coke Vs. Uganda (1992-1993) HCB 43*; *Jospeh Rujumba Vs. Uganda (1992-1993) HCB 36*; *Nandudu Grace &*

15 *another Vs. Uganda, Criminal Appeal No.04 of 2009 (SCU)*.

In the instant case, although the short-hand hoe was not tendered in evidence as an exhibit, both the prosecution and the defence agree the hoe was used by the accused person to cut the deceased. The Medical personal 20 describes the hoe in the post-mortem report, stating that a piece of hoe discovered within 30 metres from where the body was discovered, was used. The part of the body cut was the back of the neck and the curtoid artery. This is delicate part of the body. After cutting the deceased, the accused fled the scene looking for the LC's Chairman's home to report 25 herself. She did not make an alarm or try to help the baby by, for example, way of first aid, but simply abandoned her at the scene to die. Whereas

she claims there were no people nearby hence did not think it necessary

- 5 to make an alarm, at the same time, the accused materially contradicts herself saying there were many people so she feared making an alarm. To my mind, this means the accused person knew the consequences of her act. The accused claims she just realized she had cut the deceased yet she was at the same time categorical that she had first seen the deceased - 10 behind her as she was digging the black soil and shortly that the baby moved before her (front of the accused). As reasonable person in charge of her full faculty as she ably described the events, the accused should have stopped digging the black soil and should have moved the child from the harms-way. The accused, as noted, claims she lacked the mens rea. She - 15 believes demon had taken charge of her body and the unknown herb which the witch doctor used could have had its impact. These claims, aside from being unproven, have no basis in in our criminal law. As I understood her defence, the same is designed to show that the accused lacked malice aforethought in killing the deceased. The accused, however, does not say 20 she does not recall cutting the deceased with a hoe on the neck. Whereas I find the claim of demon possession and the alleged effect of the herb to be intertwined with the aspect of the accused's sanity at the time of the act, the evidence adduced does not bring out the defence of insanity within the purview of section 11 of the Penal Code Act which the accused had the 25 burden of proving on a balance of probability before the burden of disproving beyond reasonable doubt could shift to the prosecution. No

disease was shown to have been affecting the mind of the accused person

5 when she cut the deceased so as to have been incapable of understanding what she was doing or of knowing that she ought not to cut the deceased. From the responses in cross-examination, the accused did state the motive for killing the deceased- it was because the father of the deceased did not disclose to the accused the herbs the witch doctor had used on her body 10 during her treatment. She also believed he was a wizard. I find that at the time of cutting the deceased, the accused was of normal mental state. PF 24 (PEX2) confirms her normal mental state. She thus fully understood the nature of her actions and was capable of stopping the act. The accused formed the necessary intention. She even saw the deceased behind her 15 who later moved before the accused but the accused still cut her anyway. If the accused's culture believes in spiritual possession (she did not speak to it or call such evidence) I dare say such a belief is not generally recognized in our criminal law as having a direct bearing on criminal responsibility. So it is no defence at all to a criminal charge. Accepting the 20 claim would flung the justice door wide to abuse and manipulation of the criminal justice system. The claim about the alleged effect of the herbs administered by a witch doctor and demon possession are thus infeasible in a court of law. The matter at hand is somewhat similar to what obtained in the trial of Arne Cheynenne Johnson, a 19 year old boy who stabbed his 25 land lord to death in 1981 in the United Kingdom. In his defence, Johnson claimed the devil made him do it. Judge Robert Callahan rejected the

defence of demon possession, stating that such assertion could not be


- 5 scientifically and objectively proven in evidence. Court stressed that no such defence could ever exist in a court of law due to lack of evidence and it would be irrelative and unscientific to allow related testimony. See: archives.law.virginia.edu - 10 The question of the role of spiritual powers in assessing criminal culpability recently arose before the International Criminal Court in the case of *Prosecutor Vs. Dominic Ongwen, No. ICC-02/04-01/15A*. Before the Trial Chamber, and on appeal, it was argued for the accused/appellant that the purported spiritual powers of Joseph Kony had an influence on - 15 the accused/appellant in committing the offences indicted. So a sort of duress was claimed in defence. At paragraph 1559, p.567 of the Judgment of the ICC which was read on 15 December, 2022, the Appeal Chamber rejected the contention. Court noted that whereas some persons did believe in Joseph Kony's alleged spiritual powers, the evidence showed that - 20 others especially the experienced members of the Lords Resistance Army (LRA) did not generally believe in the alleged spiritual powers. The Appeal Chamber agreed with the Trial Chamber that there was no evidence indicating that the belief that Joseph Kony's purported spiritual powers played a role in the appellant (Mr. Ongwen), thus, the LRA spirituality was - 25 not a factor contributing to a threat relevant (for the purposes of the defence) under Article 31 (1) (d) of the Statue establishing the ICC.

- 5 I find the above views quite persuasive and illuminating. In the instant case, the accused's defence aside from not being rooted in law, lacked supportive evidence. Playing host to and blaming the demon is incredible as courts generally do not recognize it more especially our courts. That said, on the whole evidence, I find that the accused had malice - 10 aforethought. Her actions were premeditated. There is no way the victim who was of the approximate age of 3-5 years could have moved by herself for about ten minutes adult-walk to the crime scene without the accused person knowing about it and yet the accused says the baby had initially been home with another baby- Okaka playing when the accused initially - 15 had gone to harvest cassava. How come the deceased did not follow the accused then? On the contrary, I find that it is the accused person who took the victim to the scene where the victim met her unfortunate death. She then crafted her defence around matters of spirituality and acts of with-craft. The accused person's claim that the deceased followed her - 20 without her knowledge is a patent falsehood. The purpose for which the accused took the deceased to the scene was to murder her. I find abundant evidence of malice aforethought. The ingredient has been proved by the prosecution beyond reasonable doubt. I do not, therefore, agree with the assessors' opinion that malice aforethought was lacking. Their view that 25 the conduct of the accused person of reporting to the LCI Chairman's home - is that of a person who lacked malice aforethought, and is quite rare, with respect, is not correct. We have had many cases of guilty verdict where

- 5 accused persons handed themselves to the authorities after committing murder. In this case, I believe the accused's guilty conscience overpowered her hence the reporting to the LCI Chairman. The assessors did not consider the totality of the evidence before coming up with their opinion on the aspect of malice aforethought. They, for instance, did not consider - 10 the accused's response in cross examination where she conceded she was angry at her uncle Olum Ronald (the bereaved father) for refusing to disclose to the accused the herbs the witch doctor applied on her body and that she believed he was a wizard and the child's grand-mother a witch. The assessors also failed to consider other pieces of evidence pointing to - 15 malice aforethought which court has already highlighted. They also failed to consider the court guidance that the defence of demon possession and works of witchdoctor have no basis in our criminal law. Accordingly, I hold that malice aforethought has been proved by the prosecution beyond reasonable doubt. I find the accused person Kia Rafela guilty of murder, 20 contrary to section 171 and 172 of the Penal Code Act Cap 128, and I

Dated, signed and delivered at Apac this 03rd April, 2025.

convict her accordingly.

George Okello

JUDGE

## **Judgment read in Court**

10: 00 AM

10 03 April 2025

## **Attendance**

Accused person in Court

- Ms. Nakibira Brenda, on State Brief, for the accused - Mr. Mr. Owor Lewis, S. A, for the Prosecution - 15 Ms. Aceng Beatrice and Ms. Adongo Janet, Court Assessors Ms. Sophia Akello, Court Clerk/ Lango Language Interpreter

George Okello 20 JUDGE

- 5 09:00AM 04 April, 2025 **Attendance** Accused person in Court Ms. Nakibira Brenda, on State Brief, for the accused 10 Mr. Mr. Owor Lewis, S. A, for the Prosecution Ms. Aceng Beatrice and Ms. Adongo Janet, Court Assessors - Ms. Sophia Akello, Court Clerk/ Lango Language Interpreter

## 15 **SENTENCING, THE REASONS, AND THE SENTENCE**

On convicting the accused person of murder contrary to section 171 and 172 of the Penal Code Act Cap 128 on 03rd April, 2025, the learned State Attorney, Mr. Owor Lewis and the learned defence counsel Ms. Nakibira

20 addressed court immediately. After their submissions, Court adjourned this matter to today 04th April, 2025 for sentencing.

Mr Owor submitted that the murder of the baby- Atim Franka was premeditated and gruesome given that the convict took the victim to a

25 bush, cut her neck with a short-hand hoe and left her to die. The convict had no regard for sanctity of human life. She took the life of the deceased to settle the score she had with the father and grand-mother of the deceased. Learned State Counsel added that the convict is not remorseful as she still insists even after conviction that it is demonic possession that 30 made her commit murder. He concluded by proposing 30 years imprisonment for the murder.


- 5 For the defence, Ms. Nakibira did not agree, submitting that the convict is remorseful and prays for forgiveness from the court, the victim's family and all Ugandans. Counsel was emphatic that the convict is a first offender, relatively young at only 28 but also a mother of three children and a sole bread winner. Learned counsel stated that the children of the - 10 convict presently live at the convict's marital home. She proposed 18 years imprisonment.

Afforded the opportunity to say something in further mitigation, the convict stated that she does not agree with the Judgment of court as she 15 was demon-possessed when she cut the deceased to death. She did not

say more.

Court was informed by the Prison Warder Mr Ongom James that the convict has spent 01 year 05 months and 02 days on remand. This 20 information was confirmed to court by counsel for the convict.

The maximum punishment for murder under section 172 of the Penal Code Act Cap 128 is death penalty. Part 1 of the third schedule to the Constitution (Sentencing Guidelines for the Courts of Judicature) 25 (Practice) Direction, L. N No. 8 of 2013 provides the sentencing range in capital offences. And for murder, the maximum punishment is death

5 which mirrors the principal law. The starting point is 35 years with the sentencing range being 30 years up to death.

In this case, death sentence has not been proposed by the State. The second heaviest punishment which is life imprisonment has also not been

10 proposed.

The law is that a first offender should not ordinarily be given the maximum punishment. See: *Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993.* I should also add that death penalty is no longer mandatory

15 as courts exercise discretion whether or not to impose it. See: *AG Vs. Susan Kigula and 417 Others, SC Constitutional Appeal No. 03 of 2006*.

The State counsel and the Defence having made varied proposals on what they deem to be an appropriate prison term, which I shall further consider,

20 I first seek to assess past similar decisions while keeping in mind the sentencing guidelines. Notably, it has been held that the sentencing guideline has to be applied while considering the sentencing conventions in cases bearing similar resemblance though such cases are not binding precedents. That said, past cases still offer relevant material for court 25 consideration. See: *Ogalo s/o Owoura Vs. R (1954) 21 EACA 270*; *Ninsiima Gilbert Vs. Uganda, C. A Crim. Appeal No. 180 of 2010*. This is in line with the principle of uniformity and consistency in sentencing. I am, however,


5 alive to the fact that whereas no two crimes are identical in all respects, sentencing courts must still, as much as circumstances permit, observe consistency and uniformity in sentencing so that cases having similar facts attract similar and or uniform sentences for convicts of the same offence. See: *Mbunya Godfrey Vs. Uganda, SC Crim, Appeal No. 4 of 2011*.

Thus in *Uganda Vs. Ochir Benson, Criminal session case No. 0144 of 2015*, where the convict assaulted the deceased to death with a piece of wood, the High Court, after considering the aggravating and mitigating factors, found 22 years imprisonment to be appropriate, but after deducting the 15 period spent on remand, sentenced the convict to 19 years imprisonment.

- In *Higenyi Andrew Paulo Vs. Uganda, Criminal Appeal No. 0085 of 2008*, the Court of Appeal reduced a sentence of life imprisonment for murder to 20 years imprisonment. In *Arop Vs. Uganda, Criminal Appeal No.0460 of 2014*, the Court of Appeal held that the sentences imposed or confirmed 20 by it for murder range from 15 years to 25 years imprisonment. The Court of Appeal in that case referred to *Imakuru Isaac Vs. Uganda, Criminal Appeal No.215 of 2009*. In *Kato Kajubi Vs. Uganda, SC Crim. Appeal No. 20 of 2014*, the Supreme Court upheld the sentence of life imprisonment where the appellant participated in the murder of a 12 year old boy. There, - 25 the appellant had cut the head and private part of the deceased.

- 5 In the instant case, whereas the situation was not as bad as it was in the *Kato Kajubi* case, it is still bad enough as a young life was lost in a callous manner and under unjustified circumstances. The family of Olum was deprived of a daughter. The child was also deprived of many years on earth. These aggravate the sentence. I of course agree that the convict is a first - 10 offender and is relatively young at now 28. She is thus capable of reforming but still the punishment to be meted by this court should be proportional given the young life and the manner in which it was taken away. It has been said the convict is a sole bread winner for her three children but at the same time, she informed court that the children live at her marital - 15 home, making it plausible that at the time she committed the murder while living at her grand parents' home, the children had remained with their father who has been taking care of them. It has not been shown that the convict's husband is deceased or will not be capable of caring for the children in the convict's absence. That said, the rest of the mitigating - 20 factors mitigate the punishment and thus I would find the 30 years proposed by the State albeit legal, to be disproportionate in the circumstances. I would thus reject it. But given that a young life was lost at the hands of the convict which deprived her of life and her parents of a daughter, there is a need to send a strong message to the public that 25 senseless killings cannot be tolerated by a court of justice. Life is precious - and irredeemable if lost. Therefore, considering the sentencing conventions, and all the factors highlighted, I would find the 18 years

- 5 imprisonment counter proposed by the learned defence counsel to be on the lower end. I would instead find 22 years imprisonment appropriate and proportional given the gravity of the offence. This is also within the range affirmed by the Court of Appeal in *Imakuru Isaac Vs. Uganda* (supra) as restated in *Arop Vs. Uganda* (supra). Therefore, taking into account the 01 - 10 year, 05 months and 02 days spent by the convict on remand which is a credit to her under article 23 (8) of the Constitution of Uganda, 1995, and guideline 15 of the Sentencing Guidelines, I now sentence you Kia Rafela to 20 years 06 months and 28 days imprisonment for murder, contrary to section 171 and 172 of the Penal Code Act Cap 128, starting on 03rd April, - 15 2025, the date of the conviction.

The Convict Kia Rafela is hereby advised of her right of appeal to the Court of Appeal of Uganda at Kampala, against both conviction and sentence, within 14 days from today, 04 April, 2025, if dissatisfied.

Dated at Apac this 04th April, 2025

George Okello 25 JUDGE