[2024] UGHC 539

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT IGANGA

## CRIMINAL SESSION CASE NO. 082 OF 2024

UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### A1. MAGUMBA WILSON ALIAS WOTAYA $10$ A2. KISUBI DAN A3. JUMA OKATI A4. MUKEMBO EDIRISA:::::::::::::::::::::::::::::::::::

# BEFORE; HON. MR. JUSTICE BATEMA N. D. A, JUDGE

#### **IUDGMENT**

The Accused are jointly charged with four counts. Count 1; murder of Bateganya Matiya C/s 188 and 189 of the Penal Code Act and counts 2, 3 and 4; Attempted murder of Bagabona Abdu Samadu, Awasalike Moses and Naigaga Rebecca respectively C/s 204 (1) (b) of the Penal Code Act.

#### **Brief Facts**

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It was alleged that on the 28^th day of May 2017 at Namilari village, the accused attacked Catholic believers who were praying under a mango tree killing Matiya Bateganya and injuring others. This came after Iganga Chief Magistrates Court had passed Judgment in a land dispute between St. Kizito Catholic Church and the local residents who had trespassed on the suit land (Both parties did not disclose the case number, but admitted that such a case existed and was adjudged by the Chief Magistrate at Iganga in favour of St. Kizito Catholic church). The local residents including the accused were dissatisfied with the court decision and decided to attack the church goers during their Sunday prayers. All the accused persons pleaded not guilty and the case went to full trial.

#### **Duty of Prosecution**

The burden of proof in criminal cases rests squarely on the Prosecution and does not shift to the Accused unless it is exempted by statute, which is not in this case.


This position of the law is based on the principle of presumption of innocence enshrined in Article 28 of the Constitution of the Republic of Uganda.

The standard of proof is always proof beyond reasonable doubt. This means that Prosecution must turn all stones to uncover the guilt of the accused person while the Accused person has a right to remain silent. See Woolmington v. DPP [1935] AC 462.

However, this standard of proof does not connote proof beyond any shadow of a doubt. For that reason, Prosecution must prove its case against the Accused person by satisfying each ingredient of the subject offence to the satisfaction of the court of law that indeed the accused person should be convicted for committing such offence.

#### **Ingredients of the Offence of Murder**

- a. Death of a person. Death may be proved by production of a postmortem report or evidence of witnesses at the burial. - b. Death was caused unlawfully. It is trite law that any homicide is presumed to have been caused unlawfully unless it was accidental or it was authorized by law. - c. Death was caused with malice aforethought. In malice aforethought, court takes into account the number of injuries inflicted, the part of the body where the injury was inflicted, nature of the weapon used and the conduct of the killer before and after the attack. - d. Participation of the Accused in the murder. There must be credible direct or circumstantial evidence planting the accused at the scene of the crime as an active participant in the commission of the offence.

#### 60 **Ingredients of the Offence of Attempted Murder**

- The unlawful intention to cause an unlawful death of a person. $\mathbf{I}$ . - $\mathbf{H}$ Manifestation of that unlawful intention by an overt act. - III. Participation of the accused.

The first three ingredients of murder in Count 1 were agreed upon by the Prosecution and the Defence as well as the first two ingredients of attempted murder in count 2, Count 3 and count 4 as proved beyond reasonable doubt. The

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only remaining ingredient to be proved in both counts by Prosecution is participation of the Accused persons in the commission of the offences.

#### Evidence on record

According to PW1, Sendagire George William, 55, a catechist at Busowobi church 70 center, the offences were committed in broad day light at about 8:30am on the fateful day of 28/5/2017. PW1 testified that he was in church at Namirali, St. Kizito under a mango tree, when he saw his fellow believer Rose Naigaga stoned and she fell on the altar. He first thought it was a falling mango but later realized it was a stone.

PW1 told court that he saw Mukembo Edirisa, A4, Juma Okati, A3 and Kisubi Dan, A2 approach the congregation with sticks and pangas and began attacking them by cutting and assaulting the believers save for Magumba Wilson, A1 who did not have any weapon. PW1 further testified that Awasalike Moses was cut with several bruises. Naigaga Rose who was heavily pregnant at the time was assaulted. Bagabona Abdu Samadu was cut and lost 3 fingers. PW1 took off to save his life and was only saved by Police which arrived in time.

In cross examination, PW1 recognized Mukembo Edirisa (A4), Okati Juma (A3) and Wotaya (A1) by face and name but failed to name a one Kisubi Dan although he told court that he also participated in the attack. PW1 estimated the number of attackers in the group to be over 20 to 40 and were in a distance of about 5-6 meters i.e from dock to dock.

PW2, Awasilike Moses Kabale, 50, who lost fingers in the attack testified that recognized and identified all the accused persons present in the dock. PW2 testified that on the fateful day, as they were praying at Namirali church under the mango tree with PW1, Sendagire George William, Naigaga Rose, Matiya Bateganya, Nangobi Doreen and others, they were attacked by a group of people who first pelted stones at them.

PW2 testified that Ogoma and Luuka chased him and cut him on the neck, head and fingers. PW2 further testified that he did not see Mukembo (A4), he however saw Juma Okati, Wotaya and Kisubi among the attackers all wielding sticks and pangas.

PW2 finally testified that he was later hospitalized and she went in a coma. It was on the following day that she got a report that Bateganya had been cut to death.

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PW3, Naigaga Rose, 37, who was described as the pregnant church goer, recognized and identified all the accused persons in the dock by name and face.

PW3 testified that a big group led by Wotaya, Juma and Ogoma attacked her. That Wotaya specifically beat her up using a stick and cut her in the back and head near the eye using a panga. PW3 identified Wotaya, Juma and Kisubi among the attackers. However she was not sure of the weapon Juma had used but remembered that Kisubi had used a stick.

PW3 finally testified that she became unconscious and only came back to her senses while at the hospital.

PW4, Bakwagala Stephen, 55, identified and recognized all the accused in the dock. PW4 told court that Mukembo Edirisa was part of the attackers and that he used stones. PW4 finally testified that the accused attacked them because of the court victory that the church had gotten in respect to a land dispute.

PW6, Bagabona Daudi alias Bagabona Abdu Samadu, aged 37, a boda boda rider recognized Juma (A3), Wotaya (A1) and Kisubi (A2) in the dock. PW6 testified that on 28/5/2017, he carried a passenger to St. Kizito Catholic Church, Namilari. That while PW6 was waiting for his passanger who had joined the worshippers, he saw Wotaya leading a group of people attacking the church goers. That as the church goers started to run away in disarray, Wotaya went straight and cut the woman who was pregnant (PW3, Naigaga Rose). PW6 further testified that he asked Wotaya to stop hitting a helpless woman using a panga and stick. PW6 also saw Ogoma who had come with Wotaya chasing a child.

PW6 finally testified that Wotaya advanced towards him and hit him using a stick as well as cutting him on the neck and right shoulder using a panga. That Police arrived, rescued the church goers and he was taken to Nakavule Hospital.

The Police officers in this case PW5, D/IP Mubinge Mebra, 58 and PW7, D/AIP Wanyama William58, were not part of the identifying team. They only visited the scene of crime after the commission of the offences. They gathered exhibits, drew sketch maps, recovered the corpse of Bateganya and recorded statements of the eye witnesses.

In his defence, A1, Magumba Wilsonalias Wotaya set up an alibi to the effect that he was at his home on that fateful day. That at 7:00am he first took his cows to graze and then came back home by 8:00am and took tea.

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A1 further testified that it was at that point that he saw his children running towards his home telling him that a mob was destroying his brother's house, a one David Batuse. That on peeping through the maize garden, DW1 indeed saw the house being broken down. That DW1 ran back to his cows and hid there in fear that the O/C Prison was claiming their land and that he wanted to loot their property.

A1 finally testified that later on, he came back to the road leading to Bugwaya and it was while there that he kept getting information from passersby that a one Bateganya had been beaten to death.

In cross examination, A1 first denied knowledge of any land despite with the 140 catholic church but later admitted that they had a land dispute were the catholic church had included his land in their registered title.

On his part, A2, Kisubi Dan, 34, a mason, also put up an alibi to the effect that on the fateful day, he left home for Kabira at 6:00am to go and build a house for Saile and only returned home at 9:00pm. He testified that a one Mulonde Yahaya, his grandson was well aware of his whereabouts at the time.

A2 further testified that on the following day at around 1:00pm as he returned from work, he was roughly arrested by Police.

In cross examination, A2 denied having any knowledge of the land dispute with the Catholic Church and did not know where the Catholics pray from in Namilari.

A3, Juma Okati, 60, testified that he was in Bufulubi on 28/05/2017. That he had gone there on the previous day to condole and mourn with his son-in-law's family, since his son had lost his wife. A3 further testified that he stayed at the in-laws place for three (3) days and after the 3 days, he was arrested by Police together with his 3 sons from Mayuge District.

A4, Mukembo Edirisa, 76, testified that prior to the fateful day, he was sick and a known patient at Nakavule Hospital. That on the 28/05/2017, he was at his home on bed rest with his daughter having had prostate blockage for three (3) weeks. A4 produced a referral letter and photocopies of medical notes dated 21^st May 2017 showing that he was a known patient suffering from urine retention. However there was nothing to show that he was admitted in hospital on the said date when the offences were committed.

met A3, Kisubi Dan in the morning on the fateful day going to work in Kabira. That

A2, Kisubu Dan called a witness DW5, Mulonde Yahaya, who confirmed that he

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A3 was with the late Kalenzi going to Kabira where they were building a house for the daughter of Byakika. Mulonde Yahaya testified however that he could not tell when they left the building site and at what time.

In his testimony, DW5, Mulonde Yahaya further testified that Mukembo Edirísa, A4, shifted from Namilari village but maintained a garden on the disputed land.

In cross examination, DW5 told court that Juma Okati was on the disputed land but 170 was not sure if Dan Kisubi was staying on the same.

### Analysis of the evidence by court

Prosecution evidence points to the fact that all the accused persons were at the scne of crime and each of them participated in the commission of various offences. Prosecution adduced evidence to prove that Magumba Wilson alias Wotaya (A1) beat up PW3, Naigaga Rose using a stick and cut her in the back and head near the eye using a panga according to PW3's testimony. PW4, Bakwagala Stephen told court that Mukembo Edirisa (A4) used stones to attack the church goers. PW2, Awasilike Moses Kabale told court that he recognized both Juma Okati (A3) and Wotaya (A1) and Kisubi Dan (A2) all wielding sticks and pangas.

According to Prosecution evidence, Bateganya Matiya (deceased) was prior to the attack seen attending prayers at St. Kizito CatholicChurch at Namilari village. He was seen alive and not complaining of any sickness or having any wounds. However after the attack by the mob, some of the church goers fled into disarray. Immediately after the attack, Bateganya Matiya was found dead. The postmortem report (P. E.1) revealed that he had sustained deep cut wounds on the head, neck and trunk.

The deceased did not die of natural causes. The mob that attacked the church goers is responsible for his death. The only reasonable conclusion is that the deep cut wounds found on his body were most likely caused by the pangas wielded by the mob. It is also worth noting that mob attack cannot be attributed to only one single person. Whoever participated in the mob attack is liable for the death of Bateganya Matiya.

Prosecution evidence adduced before this Court shows that among the attackers who were able bodied, seen chasing the church goers and moving up and down included Magumba Wilson alias Wotaya (A1), Kisubi Dan (A2) and Juma Okati (A3). These accused persons were seen wielding sticks and pangas and were seen using

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them to attack the church goers. Since the incident occurred in broad day light, I find identification of the said attackers believable.

As for Mukembo Edirisa, A4, Prosecution evidence prove that he stood still in one place and was recognized by PW4, Bakwagala Stephen throwing stones at the church goers. It appears he did not hit Bateganya Matiya because the post mortem report does not show that the deceased suffered any injury caused by a blunt object like a stone.

From the foregoing, I find that Prosecution evidence is strong enough to prove the count of murder against Magumba Wilson (A1), Kisubi Dan (A2) and Juma Okati (A3). There is however no satisfactory evidence to pin Mukembo Edirisa (A4) on the count of murder.

On the Counts of attempted murder each victim recognized and named his/ her assailant. Prosecution evidence invites this Court to consider circumstances under which a proper identification takes place. The position of the law is that where the quality of identification is good, a court can safely convict on uncorroborated evidence of a single identifying witness. See Abudalla Nabulere & 2 ors v. Uganda [1978] UGSC 5.

## **Conditions for Proper Identification**

- 1. There must be sufficient light. - 2. No obstruction between the accused committing the crime and the identifying witness. - 3. The distance must be short to enable the identifying witness see clearly the Accused person. - 4. The Identifying witness must be familiar with the Accused to rule out any case for mistaken identity. - 5. The duration of the Identification must be long enough to enable the identifying witness recognize the Accused person.

According to PW1, Sendagire George William, the attack on the church goers happened around 8:30am in broad day light. This piece of evidence is corroborated by PW2, Awasilike Moses Kabale who states that the attack was between 8:00am and 9:00am. This therefore demonstrates that there was sufficient light to facilitate proper identification.

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According to PW3, Naigaga Rose, Wotaya, Juma and Ogoma attacked her. PW3 testified that Wotaya specifically beat her up using a stick and cut her in the back and head using a panga. PW3's testimony was corroborated by PW6, Bagabona Daudi alias Bagabona Abdu Samadu, the boda boda rider, who told this court that he clearly saw Wotaya (A1) going straight and cutting PW3, Naigaga Rose who was heavily pregnant at the time. PW6 further testified that he pleaded with Wotaya to stop hitting the helpless woman with a panga and stick.

This piece of evidence clearly demonstrates that there was no obstruction between the accused committing the crime and the identifying witness. It also goes a long way in proving that the distance between the identifying witness and the accused person was short.

- I note that prosecution witnesses, PW1, PW2, PW3, PW4 and PW6 identified and 240 recognized the accused persons by name. This connotes that the identifying witnesses must have been familiar with the accused persons since the latter were residents within the local limits of St. Kizito Catholic Church where the church goers used to pray from regularly including the prosecution witnesses but more importantly they were familiar with each other since they were all involved in the long standing land dispute. There was also evidence that the church building had been pulled down and the church goers had turned to worshiping and praying under a mango tree. The other piece of evidence is that some of the attackers had maintained gardens on the disputed land like Mukembo Edirisa (A4). - There is no doubt in my mind that the victims of the attack clearly identified their 250 assailants by face and name. It is my finding that the conditions for correct identification as laid down in the case of Abudalla Nabulere supraexisted in the instant case.

I now turn to the defence evidence. I have analysed the defence of alibi set up by each of the accused persons. I find this to be untruthful and simply a blanket denial. Forexample Magumba Wilson alias Wotaya, A1, set up an alibi to the effect that he was at his home and never went to the scene of crime on that fateful day. However he was properly seen and identified as already discussed. His alibi cannot stand. He participated in the murder and attempted murder because of the grudge of losing a land dispute.

Kisubi Dan, A2, a mason said in his alibi that he was away at a construction site. However, the witness he brought, a one Mulonde Yahaya could not account for his


whereabouts at the material time when this offence is said to have occurred. He had all the time to leave the building site and go to the scene of crime and participate in the commission of the offence. Worse still, Kisubi Dan denied knowledge of the existence of a land dispute. This was a glaring lie. He also denied knowledge of where the Catholics pray from in Namilari. He only broke down in cross examination by admitting that he indeed knew about the land dispute with the Catholic church in Namilari. Kisubi Dan's defence raised no doubt at all. Prosecution evidence remained strong.

As for Okati Juma, A3, his evidence of alibi was broken down by the strong prosecution evidence of eye witnesses who saw him participating in the commission of the crime.

Mukembo Edirisa, A4, stated that he was bedridden at home with his daughter. However his medical records do not show that he was on bed rest at the time of the offence. He was put at the scene of crime by prosecution evidence.

Suffice to note, there is no strong evidence against Mukembo Edirisa to show that he specifically attempted to murder Naigaga or Bagabona or Awasilike.

I disagree with the joint opinion of the Honorable Assessors on Count 1 save for the acquittal of Mukembo Edirisa, A4 on the offence of murder of Bateganya Matiya. I find A1, A2, A3 guilty of the murder of Bateganya Matiya.

I also disagree with their opinion on Count 2 to the extent that there was no evidence proving attempted murder of Bagabona Abdu Samadu alias Bagabona Daudi. The medical doctor classified the injuries sustained by Bagabona as grievous harm (See exhibit P. E. II). A1, A2 and A3 are acquitted of the charges of attempted murder but are convicted of causing grievous harm C/s 219 of the Penal Code Act.

In Count 3 of attempted murder of Awasilike Moses, the medical doctor classified the injuries sustained as grievous harm (See exhibit P. E. III). I would acquit $\Lambda1$ , $\Lambda2$ and A3 of the charge of attempted murder but instead convict them of causing grievous bodily harm C/s 219 of the Penal Code Act.

In Count 4, I disagree with the opinion of the Honourable Assessors. Naigaga Rose who was pregnant at the time suffered soft tissue injuries which were classified by the doctor as mere harm (See exhibit P. E. IV). This is not attempted murder. I would convict A1, A2 and A3 of a misdemeanor termed as unlawful wounding C/s 222 (a) of the Penal Code Act.


Mukembo Edirisa, A4 pelted a stone at Naigaga and as a result she stumbled and fell to the ground. However the injury caused by the stone was negligible and was never recognized by the doctor in the medical form (See exhibit P. E. IV). Mukembo Edirisa committed a trivial offence of common assault. In the circumstances of this case, I acquit him of the charge of attempted murder.

In conclusion, I find A1, Magumba Wilson alias Wotaya, A2, Kisubi Dan and A3, Juma Okati guilty and convict each of them of the offence of murder C/s 188 and 189 of the Penal Code Act in count 1 in respect of the death of Bateganya Matiya. I also find A1, A2 and A3 guilty and convict each of the offence of causing grievous harm C/s 219 of the Penal Code Act in Count 2 in respect of the injuries sustained by Bagabona Abdu Samadu alias Bagabona Daudi and Count 3 in respect of the injuries sustained by Awasalike Moses. Lastly, I find A1, A2 and A3 guilty and convict each to a misdemeanor termed as unlawful wounding C/s 222 (a) of the Penal Code Act in Count 4 in respect to the wounds sustained by Naigaga Rose.

BATEMA N. D. **IUDGE**

25/06/2024