[2025] UGHC 337

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDENT AT KABALE**

| | HCT-11-CRIMINAL CASE-00-CR-CSC-0253 OF 2019 | |----|---------------------------------------------------------------------------------------| | | (Arising from criminal case KAB No. 0051 of 2019) | | 10 | (Arising from CRB-1253 of 2019) | | | UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTION | | | VERSUS | | 15 | MACKDONIAS<br>RODGERS TUMUKUNDE<br>alias MUSEVENI::::::ACCUSED |

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

# **JUDGMENT**

Mackdonias Rodgers Tumukunde alias Museveni who for the rest of my Judgment I shall refer to as the Accused is indicted for the offence of Murder contrary to **Section 188** and **189** of the **Penal Code Act**. The particulars of the offence allege that Mackdonias Rodgers Tumukunde alias Museveni and others still at large

25 during the month of August 2019 at Mushenyi cell in Kabale District unlawfully and with malice aforethought killed Agaba Owen.

The Accused pleaded not guilty.

30 **Representation.**

Mr. Isaac Onyango (State Attorney) appeared for the Prosecution while Mr. Felix Bakanyebonera represented the Accused on state brief. The Assessor for this trial were Mr. Turyamutunga Livingstone and Ms. Christine Kemigisha.

During the preliminary hearing pursuant to **Section 66** of the **Trial on** 35 **Indictment Act** medical evidence in Police Form 24 and Police Form 48C were

5 tendered as uncontested medical evidence. Police Form 24 was received as Exhibit P1 while Police Form 48C was received as Exhibit P2.

The Prosecution in abid to prove its case presented four witnesses in Twinomugisha Alex (PW1), Twinobusingye George (PW2), Turyatunga Ivan (PW3) and D/CPL Saturday Sebestain (PW4).

10 The Accused gave his defence on oath and presented no witnesses.

**Burden and Standard of Proof**.

This being a Criminal case it is one whose proof lies squarely on the Prosecution and the Accused has no duty to prove his innocence.

It is also proof beyond reasonable doubt. Any doubt unless satisfactorily explained

15 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.

**See (1) Woolmington versus DPP (1935) AC 462.**

``` (2) Ssekitoleko versus Uganda (1961) EA 531. ```

**Ingredients of the offence.**

The Prosecution in the present charge of Murder must prove the following 25 ingredients beyond reasonable doubt.

**1) Death of a human being.**

- **2) That the death was caused unlawfully.** - **3) That the death was actuated by malice aforethought.** - 4) **That the Accused participated in causing the death of the Deceased**.

# 5 **1) Death of a human being.**

Death may be proved by production of a post mortem report, evidence of witnesses who state that they knew the Deceased and that they saw the Deceased's body or attended the burial.

It is the evidence of Twinomugisha Alex (PW1) that the Deceased Agaba Owen 10 was the Accused's biological brother and that he died on the 18/08/2019 in his father's house and that he saw his body. This evidence is corroborated by that of Twinobusingye George (PW2) a village mate who also testified to seeing the body of the Deceased. Corroborative medical evidence can be obtained from Exhibit P2 a postmortem report carried out on the 19/08/2019 on the Victim Agaba Owen

- 15 by Dr. Twine Apollo who described the body as lying on the floor with a piece of cloth around the neck and that the clothes were blood stained and the cause of death was as a result of suffocation due to strangulation. I accept the evidence of the Prosecution witnesses who knew the late Agaba Owen - 20 death. The Accused in his sworn defence did not contest the death of his brother but admitted that he also viewed the body.

It is therefore my finding that the prosecution has proved the death of Agaba Owen beyond reasonable doubt.

that they viewed his body and I find the medical examination to corroborate his

25 **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, excusable or authorized by law.

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

It is the evidence of PW1, PW2, PW3 and PW4 that they saw the body of the Deceased Agaba Owen on the floor with a cloth tied around his neck. Exhibit P2 confirms that there was a cloth tied around the body of the Deceased Agaba Owen and that he died as a result of suffocation due to strangulation. I accept this

10 evidence to be true in the absence of any evidence that the death of Agaba Owen was as a result of an accident or it was excusable.

It is therefore finding that the prosecution has proved beyond reasonable doubt that the death of Agaba Owen was as a result of some unlawful act.

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

Under **Section 191** of the **Penal Code Act** malice aforethought may be proved by direct evidence or may be inferred from the evidence indicating knowledge that the conduct of an Accused would probably cause death.

The central issue here is whether whoever assaulted the Deceased intended to 20 cause death or knew that the manner and degree of assault would probably cause death.

Malice aforethought in murder trials can be ascertained from the weapon used (whether it is a lethal weapon used or not) the manner in which it is used (whether it is used repeatedly or the number of injuries inflicted or the part of

25 the body that is targeted or injured (whether or not it is a vulnerable part) and the conduct of the Accused before during and after the incident (whether there was impunity).

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

It is the evidence of Twinomugisha Alex (PW1), Twonobusingye George (PW2) and D/CPL Saturday Sebestian (PW4) that they viewed the body of the Deceased Agaba Owen and that the body had a foul smell with a cloth around its neck. Exhibit P2 which is the postmortem report conducted by Dr. Atwine Apollo

- 10 describes the body as lying on the floor with a cloth around the neck and the clothes were blood stained also that there was a black belt tied to the left arm of the Deceased which was cut showing that a lot of force was used and maggots were eating the body. According to the report it was estimated that more likely the body of the Deceased had taken a week in the house in view of the maggots - 15 all over the body.

The cause of death is indicated to be suffocation due to strangulation.

The neck is a vulnerable and sensitive part of the body and the presence of a cloth around the neck coupled with blood stains on the clothes of the Deceased Agaba

- 20 Owen and the belt that snapped into half owing to the force used on his left arm presumably to restrain him leaves no doubt in my mind that the intention of his assailant was to kill. The cause of death being suffocation by strangulation with the possible article used indicated as the piece of cloth and belt corroborates my opinion that the intention of the assailant was to cause death. - 25 It is therefore my finding that the Prosecution has proved beyond reasonable doubt that the unlawful act leading to the death of Agaba Owen was actuated by malice aforethought.

# 5 **4) Participation of the Accused.**

The Accused in his sworn defence denied murdering his brother Agaba Owen. According to the Accused Agaba Owen migrated before his death. The Accused states that in the month of August he was residing in Mushenyi B at his own home and that Agaba Owen was found dead in his father's house also located in 10 Mushenyi B village and that his father had relocated after he had separated with his wife/their mother. It is the evidence of the Accused that Agaba Owen stayed for some time in their parents' home before he constructed his own house and when he migrated nobody occupied the house.

According to the Accused it was on the 19/08/2019 as he was grazing his animals

- 15 in the compound of his father's house and pruning the trees when he smelt something and that the smell was coming from his father's house and this was at around 6:00PM. It is the evidence of the Accused that he decided to call a neighbor one Budagali to come so that they can search for the source of the smell but that when Budagali came he also said that he could not open the door alone and 20 suggested that they call Twinomugisha Alex (PW1) the defence secretary who - arrived at around 3:00PM and in turn called Twinobusingye George (PW2) who when he came also called Ndeze the chairperson who came at around 6:50PM. It is the Accused's testimony that Twinobusingye (PW2) then pushed the door and it opened inwards. - 25 That they entered the house where they found several house flies and that the stench in the house was too strong and it forced them to move out again. That they then picked a hoe from Bugadali's home and broke a window to the house where they saw Agaba Owen, he was dead and the body was leaning against the door. The Accused states that the matter was reported to the Police at Butanda - 5 Police Post who in turn informed the Police at Kabale Police Station. These events according to the Accused all took place in the evening of the 18/08/2019 and the time of reporting at Police was 9:30PM. The Accused testifies that they were then ordered to go back home and when they returned they found that a crowd had gathered at his father's house. That then next day the 19/08/2019 the Police from - 10 Kabale came at around 1:00PM pushed the door and entered the house and after they were told to take the body for burial. It is the defence of the Accused that Detective Saturday (PW4) and others told lies that he was the one who opened the padlock but this was not true because there was no padlock to the door. The Accused also insists that prior to the discovery of the body he had last seen Agaba - 15 Owen in 2017 and he does not know who killed him.

It is trite law that where an Accused person raises the defence of alibi the onus is on the Prosecution to discredit this defence and to place the Accused at the scene of crime.

**See Kyalimpa Edward versus Uganda No. 0010 of 1995.**

To discharge this obligation the Prosecution relied on the evidence of Twinomugisha Alex(PW1) who testified that on the date in issue of the 25 18/08/2019 at around 6:00PM the Accused called him and informed him that there was a bad smell coming from his father's house. That he moved to the house and found that there was a bad smell coming from inside the house. According to Twinomugisha Alex (PW1) he then called the LC 1 chairperson Twinobusingye George (PW2) to come and that when he came he confirmed that

30 there was indeed a foul smell.

- 5 It is the evidence of Twinobusingye Alex (PW1) that they then called the chairman of the Bataka Ndenze Gad and they broke the window to the house and when they looked inside they saw a body on the floor with a cloth around the neck. Twinomugisha Alex (PW1) states that they were unable to enter the house because there was a padlock outside the door that was locked and that the Accused - 10 who was present told them that he had the keys but that he had left them home. It is his evidence that it was the Accused who was using the house because his parents had separated and his father was working elsewhere.

It is the testimony of Twinobusingye Alex (PW1) that the matter was reported to the Police and the following day they insisted that the Accused opens the door to

15 the house and the Accused sent for the key and opened the padlock to the house where they found the body of Agaba Owen.

His evidence is corroborated by that of Twinobusingye George (PW2) who testified that on the 18/08/2019 he received a call from Twinomugisha Alex (PW1) who informed him that the Accused had told him that there was a bad smell 20 coming out of their house (belonging to their parents) that he rushed there arriving between 5:00PM-6:00PM and when he got there he confirmed indeed that there an unusual smell there and other local villagers had gathered. According to Twinobusingye George (PW2) they asked the Accused to open the house but he told them that he had forgotten the key at home and so they broke 25 a window to the house and saw Agaba Owen lying on the floor inside the house with a cloth tied around his neck. He (PW2) states that they could not access the

It is the evidence of Twinobusingye George (PW2) that the matter was reported to the Police and the following day the Accused opened for them the door and they

house because the door was still locked with a padlock on the outside.

5 entered and examined the body. PW2 maintains that he was present when the Accused opened the padlock and they had spent the night outside the house to prevent anyone who might have been inside from moving out.

Further corroborative evidence was also given by Turyatunga Ivan (PW3) the LC II chairperson who testified that on the 18/08/2019 at around 7:00PM he received

- 10 a call from Twinobusingye Goerge (PW2) who informed him that the Accused had called them over a foul smell from their house and when they broke the window they found a dead body. It is the evidence of PW3 that he proceeded to the scene where he found many people peeping through the window because the door was locked and that he also looked through the window and saw a dead body on the - 15 floor with a cloth around the neck. According to Turyatunga Ivan (PW3) the Accused later produced the key to the padlock and opened it himself for them to enter the house.

The prosecution also presented D/CPL Saturday Sebestain (PW4) who testified that he performed a dual role in this case as the investigating officer and the scene

20 of crimes officer (SOCO). He testified that on 19/08/2019 he together with a homicide team responded to the scene where they found a decomposing body with a piece of cloth tied around the neck and a black belt was tied to the left hand of the Deceased. According to the Detective (PW4) their observation was that it could not be suicide. That the belt only tied the left arm and it was a half belt 25 showing that in the process of tieing him force was used and the belt broke or cut.

It is imperative to note that the exact date on which Agaba Owen was killed is impossible to nail down because the body was discovered on the 18/08/2019 and

5 the postmortem report conducted on 19/08/2019 in Exhibit P2 reveals that the body was in a state of decomposition with maggots all over the body. This corroborates the Prosecution evidence by PW1, PW2 and PW3 that there was a foul smell in the house in which the body was found.

It is also imperative to note that none of the Prosecution witnesses prior to the

- 10 18/08/2019 was aware of the presence of Agaba Owen in their village. They were all surprised because they thought he was in Bunyoro where he had migrated to. There is therefore no eye witness to the murder of Agaba Owen and what has been presented to this Court by the Prosecution is circumstantial evidence. The above fact notwithstanding the Court in **Teper versus R (1952) AC 489** - 15 defined circumstantial evidence and the weight to be attached to it as follows: *"… evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics. It would be no derogation of evidence to say that it is circumstantial"*

Furthermore, the Court of Appeal in **Mugambe Francis versus Uganda CACA** 20 **No. 0060 of 20211** observed that in case involving circumstantial evidence the facts must be closely knitted and must bring conviction to the mind of the Judge.

The evidence presented by the Prosecution witnesses that the Accused was the custodian of the keys to the house in which the body of Agaba Owen was 25 discovered and that it was the Accused who personally opened the door to allow them access to the house has been well corroborated by three Prosecution witnesses in Twinomugisha Alex (PW1), Twinobusingye George (PW2) and Turyatunga Iven (PW3) all these there witnesses were emphatic that they had witnessed the door to the house containing the body as being locked with a 5 padlock and that the Accused had produced the keys to this padlock and opened it in their presence and many others.

I do not accept the defence of the Accused that the door to the house was not locked and that he did not open the padlock to this house. I believe this defence to be false. I find no reason that would cast suspicion on the honesty of these 10 witnesses. There was no grudge alluded to between the Accused and the Prosecution witnesses. Indeed, the evidence of the Accused corroborated that of the Prosecution witnesses that it was the Accused who had drawn attention to the foul smell coming out of the house. It would appear that the Accused sought to mask his involvement in the murder of his brother Agaba Owen by calling 15 witnesses at the discovery of his body. This is because according to the Accused's own admission he was grazing his animals on the compound in which the house is located and pruning trees from 3:00PM and yet according to Twinomugisha Alex (PW1) who the Accused contacted first it was at around 6:00PM that the Accused called him over the foul smell.

20 The smell according the Accused was too strong. The fact that the Accused continued to graze his animals and prune the trees in this kind of environment points to the fact that the Accused was aware of what the source of this foul smell was and this is because he was responsible for the same.

I have not found any co-existing circumstances that would weaken or destroy the 25 inference of the Accused's guilt.

The evidence presented by the prosecution has been tightly knit cogent and consistent and I am persuaded of the guilt of the Accused. It is my finding that the defence of alibi raised by the Accused has been discredited by the Prosecution case.

- 5 After considering the evidence adduced by the Prosecution and the defence 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 the Accused guilty of the offence of murder contrary to **Section 188** and **189** of the **Penal Code Act** and convict him of the same. - 10 Before me,

……………………………….. **Samuel Emokor Judge 20/01/2025.**