[1990] UGHC 28

. IN THE HIGH COULD OF UGANDA AT KAMPATA

Mr. The How Mr. Justice Solvade

## HOLL I AT GULU

BEFORE: WHE HONOUR BLE LL. JUSTICE G. M. OKELLO. CRIMINAL MISS. CAS 10. 59 OF 1990.

**UGANDA** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$

$-$ versus -

PILIMENA LADUR .................................... .... ACCUSED.

20/11/90. Accused present.

Mr. Ogwal-Olwa R. S. S. A for the state. Mr. Oyarmoi for the Accused on state brief.

Court: Accused is arraigned.

$Please:$ Accused $\rightarrow$ I admit I unlawfully caused the death of Jenifer Akwero but I did not intend to kill her. Court: $P. N. G.$ entered.

Ogwal-Olwa:

I apply to amend the indictment to read the name of the deceased as "Akwerp" not Lakwe. This mistake came about because the original Police file got lost. I make this application under section 48 (2) of the Trial on Indictment Decree.

Oyarmoi: No objection.

Court: Application for amendment is granted and the necessary amendment sought is effected by deleting the last name of the deceased and for it substitute the name "Akwers". Ogwal-Olwa.

From the plea it seems the accused is trying to plead guilty to a lesser offence of manslaughter. If that is the case I would have no objection because from the swidence available this would be justified.

Oyarmoi:

My client does not intend to plead guilty to manslaughter. To expedite the hearing me intend to admit the following facts:

No. 1. 2. 5 and $11$ .

$\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{$ Assessors: Charles Obot.

Phillips Olanya.

## Hearing:

$11-12-90$ . Accused before mo.

Mr. Oyarmoi for Accused on state brief.

Mr. Ogwal-Olwa R. S. S. A for state.

Assessors: - Mr. Phillips Olanya - sworn.

Mr. Charles Obot - sworn.

$\cdots \cdots$

in Early 19

Ogwal-Olwa:

$\gamma = 1, \quad \gamma \in \mathbb{R}^n$

I am applying to tender in an amended Indictment under section 48 (2) of the Trial on Indictment Decree. I am

amending the indictment from murder u/s 183 of the Penal Code to one of manslaughter contrary to section 182 (1) of the Penal Code Act.

The accused was served with the summary of evidence sometimes in early 1984. Thin we recommitted her we served her with the same copy of the summary of evidence on 28.6.90. This Summary of Evidence tends to show wa offence of manslaughter due to some provocation. The accused mill not therefore be taken by surprise by this amendment. Secondly we are reducing the offence from one which carries a mandatory $\gamma$ $\rightarrow$ $\gamma$

death sentence to a lessor offence which carries a maximum sentence of life imprisonment. For that reason no injustice will be csv-sod to tho i:oou..ooC by this amendment, I..therefor© pray tho court to ~llo\ t/.io xronded indiot.ment to Vo ten4ore^-

### Oyarmoi;

in.

'72.il e it is true that section. .48 (2) of the Trial ,n - ^< ' • ' • • ' " '' ' . . . . Indictment. Decree allows ths- prosecutftU>n to amend an indictment •;F'at^any st..yo of tho trial oirchor because the original indi-q^. ment is defective or for any other reason which the state.may advance.

This intended amendment on tho face of it does not appear to be prejudicing the accused but owing to the merits of the § 'case 'the intended amendment offers injustice to the accused excuse my client is thereby deprived of her defence of justifiable killing,

Court;. . Mr.. Oyarmoi your argument has-,no merits and i» . -wasting court's time, for nothing. '-Thc.thsr your client is ..-charged with murder or manslaughter as .is. being sought .to be amended- tho killing, in-either case must, be unlawful. - That it must have been committed by the accused. The only difference is\_that in murder there is.that requirement of malice afore thought,which is lacking in manslaughter. But in either case your\* client can still plead that the killing was not unlaw-

ful- That it was justifiable. ^t .

Oyarmci: I nov; see y,our point and I have no objection '•\tp th? amendment being sought. • '

Court: $\mathcal{L} = \mathcal{L}$ Amended Indictment charging the accused with manslaughter **Bischen** . contrary to section 102 (4) of the Penal Code Act is Received in court. The accused is arranged on the amended **Maindictment.** and the main that is the Plen: $\mathbf{a}^{\dagger}$ . $\mathcal{L}_{\mathcal{A}}$ \* Accused: "I understedd the charge as explained to me. I admit I did unlawfully cause the death of Jennifer Akwern Alias Lekwe $\cdot$ ⁿ $\mathcal{X} = \mathcal{X} \cup \mathcal{X}$ • Court: Plea of guilty is entered. $\mathbf{``Facts:} \qquad \qquad \mathbf{``Facts:}$ Ogwal-Olwa: $\sigma_{\alpha}^{(1)} = \frac{1}{2} \left( \frac{1}{2} \left( \frac{1}{2} \left( \frac{1}{2} \right) \right) \right) \left( \frac{1}{2} \left( \frac{1}{2} \right) \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \left( \frac{1}{2} \right) \right)$ The deceased Jenifer Akwero-Lakwe was married to an John Ocan who is also, since dead. The accused was a girl friend of this John-Ocan. SAME TO CONSUMER CONSUMER SERVICE On the 19-4-82 the Accused paid a visit to John Ocan with and the deceased who were staying in Gulu Municipality. The deceased entertained the accused in her house until late in the evening. At around 10.00 p.m the accused was left alone in a house with the deceased. The deceased went into her bedroom to sleep but sleep but sleep followed there by the accused. to was Accused submted fighting the deceased in her bedroom. Shortly $\mathcal{C} \subseteq \mathcal{C} \times \mathcal{C}$ afterwards the accused who had a knife stabbed the deceased and the finish in the heart. The accused then ran to a neighbour and told the neighbour that she should be allowed to go back and stab the deceased again. She was over powered and disarged. $J1:100$

$\ldots \quad \ldots$

$\sim 10^{-3}$

The acoused herself v.u.s seen with a fresh stab wound on her forehead\* • She. told the neighbour tna'f she was stabbed by the deceased firrzt when she grabbed and removed the knife from the deceased and stabbed her in retaliation. No one else witnessed the fight ezzcept the accused and the deceased who is now dead. The accused was handed to the Police and accordingly so charged. I should add that the trial' in 't^is, case di® not take pl^cc earlier because the Police file kept on disappearing, Evon now we were lucky to have found a copy of the 'Summary of Evidence. These are the brief facts of the case.

Court? • put to the accused,

.1 • . » •

#### Accused?:

Some of the above facts, are not correct;- The part which are not correct.are^- ^r .

(1) /The fa^ct that >1. followed the deceased into her^ pedroom is not correct becausb'. we both lived .and cooked in that same room® ,. . ^> ••• , ^r •. : .

(2) The fact that the deceased-jags married to ^[ohn Ocan and that ^I was only, ^a gi.^1. friend **of** J©hn>Ocan is not correct. The correct version^is that both of us-were girl friends of John Ocan, None of us v;ws '"'irriod to him.-

It is true that the deceased stabbed me first on my . '\* d forehead when I removed the knife from her and stabbed her also with the.^mife,. ,^v

### Court: ^r •

The facts stated by.the accused asi incorrect from the . ' ' .. .\* '

- 5 -

**naj?rwta4** facade not materially alter the narrated facts. The facts admitted by e Accused to be correct still show'-,. • that the accused c'.il ur.1/"fully cause the death of the deceased. She is therefore convicted on her own plea of guilty as charged,

# Ogwal Olwa:

Accused is a first offender. She has np record of previous conviction. But in passing sentence I pray for a deterrant sentence. The Accused simply benefited by the fact that no one alive except herself i witnessed the fight. And that she had sone injury however caused after the commission of this Qffence. She took advantage af that injury.

Secondly since the accused had already overpowered the deceased and disarmed, her, there was np reason for her to have stabbed the deceased. This j,s taking .the law into one's hand for which a deterrent sentence is called for. Rivalry over a boy friend is no ground fo'r -one to take away the life of another. Ours is a poligampus society. Regard-? lees whether the accused has spent some times on remand **in** custody or whether she has some dependence ^a deterrent sentence should be given 'even if she saved the court's time by pleading guilty

In the case of Simon Onen v. . Uganda, Criminal Sessions Case **Nqs** 66/90 the accused was convicted of manslaughter and **sentenced** to ten years imprisonment. The facts were similar in.that.an unarmed victim was assaulted to death using a deadly?weapon,. This is more serious because the Coccusod followed the deceased into her bed y®om» The sentence should

- ⁶ -

"be more serious. In the case of Onen, the accused kills. -. the deceased in the accused's compound.

#### Oyaynoj?

The convict is aged 41.years and a mother of five chi' by same father\* She has lost both parents® The five childr are being catered for by her maternal aunt at Paioho\* ' The ..accused is .a first offender us rightly put by the state ... counsel. She had been in custody on remand'-for a'period of , one year and eight months. Accused has for a 1'ong.time beer suffering fr.om chest rain for which she had 'befen receiving " native treatment# £ • w \_■ -

The circumstances in which the offence was committed are known only by the accused and the deceased who is' now dead. They were only two together. The accused told the neighbour .that she was attacked by the"deceased first. In those, circumstances I pray the court to he lenient to enab"¹ the accused come out soon to look after her children. ' \* Court\* Sentence is'reserved to 1lX>g a^ri\*-A until theu ; Okelld: \* • -• ..... ... ... **J^< - ^V .... . . " ^x'**

11-12-1990#

# Sentence';-

The accused is convicted on her own plea of guilty of the offence of manslaughter contrary...to section 182(1) of - the Penal Code *Att. ,*

The circumstance's under which this offence^ was co.rmj tte^ are known only to the accused since it^happened when they

- ⁷ -

were alone with the deceased in a room, The accused stated that the deceased and herself were girl friends of one John Ocan since deceased. Fo apparent reason v/as given for the trouble that' led to the killing. The accused stated that she was attacked firs.rt by the deceased who stabbed her on she the forehead with a knife rhent(the accused^grabbed and removed the knifQ from the deceased -end stabbed her in the heart-' with the same knife. This was dreadful. The only reason that can be speculated f\$r this trouble 7/hich led to this dreadful killing is rivalry between the deceased and the accused over the boy friend.

Sentence is a natter of discretion of the co'urt. ' It is exercised on the principle that it should adequately and accurately reflect the disapproval of the majority of the "'e^berg of the society of the offence, I have ne doubt in my mind that a great majority of members of' the .public in this region disappi^ve of unlawful taking away-the- life of another whether it be over rivalry'-over boy friends' or husbands. This ^?iety is a polygamous society'• '

The state counsel pr?.yed for a de terrant sentence. He called far heavy sentence. Ho referred me to the case of Uganda, ys^ Sjmon Onen Or . Session Case **-N,Ob6p/9O** where the accused after tpia,l for -murder he was convicted of manslaughter and :sentenced to ten years imprisonment. I do not agree with the roason^ qf deterrant as the basis for heavy sentence. I think more accurately, the sentence should reflect the disapproval by the majority of the public of the relevant offence.- , ,

- 8 - •

t

In the instant case the accused pleaded guilty thus saving the court's time. This fact has consistently been taken into account favourably by this court for the accused. I shall not ignore it. I also chall not ignore the fact that the accused spent one year and eight months in custody. She is aged 41 years.

$g \rightarrow$

With all the above in mind I consider that the disapproval of the majority of the public of this region of this offenence shall be adequately and accurately reflected by imposing on the accused a sentence of Eight Years Imprisonment. So I order.

$J_{\mathbf{e}}$ $$1 - 12 - 1990.$

G. M. Okelle

Sentence announced in open court in the presence of the Accused, her defence counsel and the state counsel.

G. M. Okelle

$11 - 12 - 1990.$

$J_{\bullet}$