[2025] UGHC 121

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA H. C. CRIMINAL SESSION CASE NO. 0072 OF 2022

[Arising from Kagadi Criminal Case No.69/2019; KD CRB 021/2019]

#### =============PROSECUTION $UGANDA$ ============= **VERSUS**

KIBUUKA IOSEPH=============================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **JUDGMENT**

- The accused, **Kibuuka Joseph** was indicted with the offence of **Murder** $[1]$ C/ss 188 & 189 PCA, Cap. 120. It is alleged that on the $5^th$ day of January, 2019 at Karambi Village in Kagadi District, with malice aforethought, the accused unlawfully caused the death of **Kyarikora Wilberforce.** The accused pleaded not guilty to the offence. - It is the prosecution case that the deceased, Kyarikora Wilberforce $[2]$ was married to a one Loy Kemigisha with whom he produced 4 children. The said deceased's wife, **Loy Kemigisha** eloped with the accused who took her to Kibaale, Bugangaizi at Kamagaba Village, where he got her a kibanja. The accused however had his $1^st$ wife at Kamusegu Trading Centre, the scene of the crime. On $5/1/2019$ at around 10:00am, while the accused was in Kamusegu Trading Centre, he found the deceased whom he referred to as "Musangi" and invited him for a drink at a one Saturday's bar. - As both the accused and his" Musangi", the deceased enjoyed the $[3]$ waragi drink of $1000/$ =, they were joined by a one **Hannah Ngirengyezi** (PW2). As they all shared the drink from one glass, the accused excused himself with the glass of waragi they were taking to answer the queries of his $1^{st}$ wife who had come at the bar. Upon his return, the accused passed the glass of the waragi to the deceased with instructions that he empties the glass so that they go for more waragi. - The deceased took some of the contents of the waragi but failed to $[4]$ empty the glass. The deceased passed the glass of waragi to **Hannah**

Page $| 1$

Ngirengyezi so that she takes the last drops of the waragi and they go for more. When the said Hannah Ngirengyezi got the glass, before she took a sip of the waragi, the accused very fast grabbed the glass and poured down the remaining contents of the waragi. Thereafter he placed the glass on the table and left the bar.

- Naturally, everybody present wondered why the accused poured down $[5]$ the remaining drink. In the meantime, the deceased started feeling unwell and collapsed at the bar. - The deceased's brother, Katungwensi Josephat (PW1) who was nearby $[6]$ repairing bicycles was informed of his brother's condition. He went to the scene and found his dying brother at the verandah of a one **Twalibu's** shop vomiting black stuffs. With the help of some people present, he was able to carry the deceased home. He rushed to get a doctor but it was too late. Before the arrival of the doctor, the deceased was pronounced dead. - In the meantime, the public got concerned. They suspected the $[7]$ deceased to had died of the waragi the accused had offered him and later poured down when the glass was passed to Hannah Ngirengyezi to drink the remaining contents in the glass. They sought for the accused who had gone to his 1^st wife's place. They found when the accused had locked himself but nevertheless, he was arrested when he had got his bag ready to flee. They handed the accused over to police. Indeed, when the deceased's body was medically examined, the Postmortem revealed that the deceased died of poison, organophosphate, that was administered through the waragi drink. - In his unsworn statement in court, the accused admitted on the fateful [8] day he was at the scene of the crime and that together with the deceased and **Hannah Barihira Ngirengyenzi** shared a glass of waragi. He however, denied knowledge as to what happened to the deceased. He also admitted eloping with the deceased's wife but that despite this elopement, he had no problem with the deceased. - It is trite that the burden of proof in criminal cases is upon the $[9]$ prosecution to prove the guilt of the accused beyond reasonable doubt.

Page $|2$

The burden never shifts to the defence except in a few exceptions provided by the law. A conviction is secured on the strength of the prosecution case and not on the weakness of the defence. The prosecution is enjoined to prove all the ingredients of the offence to the required standard, Woolmington vs DPP [1935] A. C 562 and Lubega vs Uganda [1967] E. A 440.

- [10] In the case of Murder, the prosecution can only secure a conviction upon proving the following ingredients of the offence - 1. Death of the deceased named in the indictment. - 2. That the death was unlawfully caused. - 3. That the death was caused with malice aforethought. - 4. That it is the accused responsible for the death of the deceased.

See Mukobe vs Uganda, S. C. Crim. Appeal No. 12 of 1995.

# 1. Death of the deceased.

- [11] Death of the deceased is usually proved by the Post-mortem report and those people that may have viewed the body and or attended the burial of the deceased. In this case under S.66 TIA, the prosecution adduced evidence of a Post-mortem report of the deceased which was admitted in evidence as **P. Exh.1.** As per the Post-mortem report, the deceased's body was identified by Katungwensi Josephat (PW1), the brother of the deceased, as that of the deceased, Kyarikora Wilberforce. The accused himself does not deny that the deceased Kyarikora Wilberforce died on $5/1/2019$ . - [12] As a result of the above, I find that the prosecution proved beyond reasonable doubt that the death of the deceased accordingly occurred. I find the $1^st$ ingredient of the offence accordingly proved to the required standard.

# 2. Death was unlawfully caused.

- [13] It is trite that the law presumes every homicide (the killing of a human being by another) to be unlawful unless it is accidental or authorised by law or excusable for example, if caused in defence of person or property, Gusambuzi s/o Wesonga v R [1948] 15 EACA 65. - [14] In the instant case, there is nothing to show or suggest that the death of the deceased person fell under the exceptions above. Death arising out of poison administered through a waragi drink as disclosed by the Page $| 3$

Post-mortem report (P. Exh.1) is not justified at all and is therefore unlawful. The evidence to the effect that the deceased died after taking a glass of waragi and that the Post-mortem report revealed that he died of poison was not contested by the defence. In the premises, I find this $2^{nd}$ ingredient of the offence duly proved to the required standard.

# 3. Death was caused with malice aforethought.

- [15] Under S.191 PCA, malice aforethought is defined as the intentional killing of a human being or knowledge that the act or omission will result into death of a human being, Mugao & Anor V R [1972] EA 543. - [16] To determine whether or not the prosecution has proved malice aforethought, court considers all the circumstances surrounding the death of the deceased including, the injuries inflicted, the part of the body injured and the type of weapon used, see Tubere vs R [1945] 12 EACA 634. - [17] In the instant case, the Post-mortem Report (P. Exh.1) established the cause of the death of the deceased person as "organophosphate poisoning" which was ingested through alcohol (waragi). There was therefore no physical weapon used to inflict any deadly blow on the deceased. The type of weapon in this case is found to had been The cause of death was therefore organophosphate poison. established as poison. By its nature, poison is a substance that can harm or kill a human being when administered or introduced or absorbed. Therefore, whoever administered poison to the deceased person must have intended the deceased to die and indeed, the deceased in this case died upon ingestion of the poison. - [18] In the premises, I find that the $3^rd$ ingredient of the offence has been duly proved by the prosecution beyond reasonable doubt. - 4. Whether the accused was responsible for the death of the deceased.

[19] This is the last and most important ingredient of the offence considering the fact that the accused person highly denied causing the death of the deceased.

$\sim$

- [20] The prosecution eye witness, Hannah Ngirengyenzi (PW2) testified that on the fateful day, she was with the accused and the deceased sharing a glass of waragi which was bought by the accused at a one **Saturday's** bar. As they shared the drink, the accused picked the glass of waragi and excused himself to attend to his wife's queries outside On his return, he handed over the glass of waragi to the the bar. deceased with the instruction that he empties the glass so that they go for more. The deceased took some of the contents of the waraga but failed to empty the glass. He in turn passed over the glass of waragi to PW2 so that she takes the last drops of the waragi. The accused reacted by very fast grabbing the glass before **PW2** took the remaining waragi in the glass and poured down the remaining drops of waragi. Thereafter, the accused left the scene as everybody present wondered why the accused poured down the remaining drink of waragi. - thereafter, the deceased started feeling unwell. [21] Immediately According to the deceased's brother, Katungwensi Josephat (PW2) who had rushed at the scene upon being informed of the sorry state his brother, the deceased was in, he found him vomiting black stuffs. With the help of people present, he carried the deceased home. He rushed for a doctor. It was however too late. Before the arrival of the doctor, the deceased was pronounced dead. As per the Post-mortem report (P. Exh. 1), the deceased died of poison, ingested in waragi drink. - [22] The accused admitted being with the accused on the fateful day and that they shared a glass of waragi. The accused who gave an unsworn statement to court did not however comment on the evidence his grabbing of the glass of waragi from Hannah regarding Ngirengyezi (PW2) and pouring the contents down after the accused has sipped some of the contents and passed on the glass of waragi to PW2. - [23] According to PW2 and **D/sgt Tena Malco** (PW3) who investigated the case, upon pouring the waragi down, the accused left for his wife's place where he locked himself inside the house as he prepared to flee.

This piece of evidence was also not challenged by the defence. I find such conduct of the accused is inconsistent with innocence of the accused.

- [24] Besides, there is overwhelming evidence that the accused had some time back eloped with the deceased's wife with whom he had produced 4 children. Naturally, it cannot be said that despite the fact that the accused and the deceased shared a drink at the bar, their relationship was good and therefore there was no problem between the accused and the deceased as the accused claimed. The evidence of the accused's elopement with the deceased's wife forms a possible motive for the accused to poison the deceased. Though motive in itself is not an element of any given crime, it is allowed if proven to make plausible the accused's reasons for committing a crime. Motive is in the intention of the perpetrator to commit a crime, all acts start from the motive, Uganda vs Wabomba & 6 Ors H. C. Crim. Session No. 146/2019, Mbale. - [25] In the instant case, I find the fact that the accused eloped with the deceased's wife sufficient motive for the accused to do away with the deceased's life and therefore, it provided good corroboration evidence that the accused committed the offence. - [26]In conclusion, I find that the accused's conduct after offering the deceased a glass of waragi by pouring down the remaining contents of waragi when **PW2** received the glass to take the last drops, the accused immediately leaving the bar where he and the accused were drinking the waragi and locking himself in his wife's house being ready with his bag to flee and his elopement with the deceased's wife a motive to kill the deceased, all irresistibly point at the accused as the one who introduced poison in the waragi that the deceased took and died. - [27] In the premises, I find the last ingredient of the offence duly proved by the prosecution to the required standard. The accused is found guilty of the Murder of the deceased and he is convicted accordingly.

Dated at Hoima this 27^th day of February, 2025.

Byaruhanga Jesse Rugyema Judge

Page $|6$

#### $27/2/2025$ :

Accused present.

Mr. Ochopa for state.

Ms. Dorothy Mushabe for defence (holding brief for Ms. Nabagala for defence).

Ms. Kenyange: clerk.

## Court:

Judgment is delivered in open court in the presence of the above.

# State:

The accused/convict is a $1^{st}$ offender. However, he has been convicted of a very serious offence of Murder by poisoning which carries a maximum sentence of death. In the circumstances of this case, we pray for 35 years' terms of imprisonment.

## Ms. Mushabe:

The convict is aged 46 years. He has 12 children, i.e. 5 from Loy Kemigisha and 7 from his $1^{st}$ wife.

He has been on remand for a period of 6 years and 2 months. In the premises, we pray for a lenient sentence.

#### **SENTENCE:**

The accused/convict is a first offender, aged 46 years. He however did away with the life of the deceased by poisoning after he had grabbed his wife. It is a shaming and at the same time painful incident. The convict deserves a deterrent sentence to teach society how to live with each other. For purposes of uniformity, I consider sentences in Kyaterekera George vs Uganda, Crim. Appeal No. 113 of 2010 (CA) where a sentence of 30 years for murder was upheld, Hon. Godi Akbar v Uganda, Crim. Appeal No. 3 of 2013 (S. C), a sentence of 25 years was confirmed for murder and in Tusingwire Samuel vs Uganda, Crim. Appeal No.110/2007, a sentence of life imprisonment was reduced to 30 years.

Considering the circumstances the accused committed the instant offence, for protection of the public from people of the accused's characters and attitude to life, the accused must be curtailed from using poison on his future enemies with a deterrent sentence. In the premises, I do sentence the accused to 30 years' imprisonment. Taking into account the period the accused has been on remand i.e. 6 years and 2 months, he is to serve a sentence of 23 years and 10 months.

$R/A$ explained.

Sgd: Byaruhanga Jesse Rugyema

Judge

27/2/2025

# $27/2/2025$ :

Accused present.

Mr. Ochopa for state.

Ms. Dorothy Mushabe for defence (holding brief for Ms. Nabagala for defence).

Ms. Kenyange: clerk.

## Court:

Judgment is delivered in open court in the presence of the above.

## State:

The accused/convict is a $1^{st}$ offender. However, he has been convicted of a very serious offence of Murder by poisoning which carries a maximum sentence of death. In the circumstances of this case, we pray for 35 years' terms of imprisonment.

## Ms. Mushabe:

The convict is aged 46 years. He has 12 children, i.e. 5 from Loy Kemigisha and 7 from his $1^{st}$ wife.

He has been on remand for a period of 6 years and 2 months. In the premises, we pray for a lenient sentence.

## **SENTENCE:**

The accused/convict is a first offender, aged 46 years. He however did away with the life of the deceased by poisoning after he had grabbed his wife. It is a shaming and at the same time painful incident. The convict deserves a deterrent sentence to teach society how to live with each other. For purposes of uniformity, I consider sentences in Kyaterekera George vs Uganda, Crim. Appeal No. 113 of 2010 (CA) where a sentence of 30 years for murder was upheld, Hon. Godi Akbar v Uganda, Crim. Appeal No. 3 of 2013 (S. C), a sentence of 25 years was confirmed for murder and in Tusingwire Samuel vs Uganda, Crim. Appeal No.110/2007, a sentence of life imprisonment was reduced to 30 years.

$1\overline{b}$

Considering the circumstances the accused committed the instant offence, for protection of the public from people of the accused's characters and attitude to life, the accused must be curtailed from using poison on his future enemies with a deterrent sentence. In the premises, I do sentence the accused to 30 years' imprisonment. Taking into account the period the accused has been on remand i.e. 6 years and 2 months, he is to serve a sentence of 23 years and 10 months.

$R/A$ explained.

Sgd: Byaruhanga Jesse Rugyema

Judge

27/2/2025