[2023] UGHCCRD 160

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0195-2019**

**UGANDA ……………… PROSECUTOR**

### **VERSUS**

**MALI MALI NDIHOMA SISCO MARSHAL ........…..…… ACCUSED JUSTINE aka FRANCIS**

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

## **JUDGEMENT**

The accused person **Mali Mali Ndihoma Sisco Marshal Justine aka Francis** is indicted on two counts of Murder contrary to sections 188 and 189 of **the Penal Code Act**.

It is alleged in the particulars of offence that Mali Mali and others at large on the night of the 4th of January 2019, at Kakeeka zone in Rubaga division in Kampala district, with malice aforethought unlawfully killed **Njiba Hilda Mukendi.**

The second count is that the accused and others at large on the night of the 4th of January 2019, at Kakeeka zone in Rubaga division in Kampala district, with malice aforethought unlawfully killed **Sifa Nadkis.**

The accused person pleaded 'not guilty' thus bringing the elements of this offence into issue. The prosecution called witnesses to prove its case, while the defence had Mali Mali as its sole witness.

The brief case for the prosecution is that the accused is a Congolese national. Both deceased persons are also Congolese. **Njiba Hilda Mukendi** was well known to the accused.

That the accused lived in Kakeeka in Mengo in Kampala District, in a fenced off compound, which had several other houses. It was stated that on the weekend of the 4th of January 2019 the accused person came with the two deceased persons, went into the house and started playing loud Congolese music.

That **Njiba Hulda Mukendi** had left home telling her family that she was going to visit the accused. She was accompanied by her friend **Sifa Nadkis.**

PW 1 Michael Sebuliba, the security guard at Kakeeka, was directed by the land lord to ask the accused to tone down the music. He got no response from within when he tried. It was decided that PW 1 cut off the electricity, but the music continued blaring.

After a day, a putrid smell that started emanating from within the house. The matter was reported to the Local Council officials and then the police. They all came to the premises and broke down the door.

There were two dead bodies discovered within, identified as the deceased persons named earlier. They had fasteners tied around their throats and other fasteners on the hand and feet.

It was reported that the accused had visited the home of the Hulda Njiba Mukendi informed her cousin that he was on the way back to Congo. He then left for the airport. He was followed by PW 4 who informed the police leading to the arrest of the accused person.

He led the police to the scene of crime.

The post mortem showed that for both deceased persons the cause of death was asphyxia following strangulation. At the time of the examination the fasteners were still on the bodies.

The accused was arrested and charged with the offence. He stated that **Njiba Hulda Mukendi** was his friend and they had been school mates in Congo. He has a problem with his tibia bone and Njiba called him to Uganda saying that she has found a Doctor to treat his leg.

He arrived in Uganda on the 29th of December 2018. He was supposed to stay at Njiba's home but there was inadequate space. In the end, he went to a Guest House called Karibu Guest house. There he waited for the appointment but Njiba told him it was not possible to see the doctor. For all this time from 29th of December 2018 to 5th of January 2019, the only meeting he had with Njiba was at the guest house. Because of the pain in his leg, he was not mobile and spent most of the time at the guest house.

It was his evidence that he did not talk to the police or take them to the scene of crime.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (**Okethi Okale vs R 1965 E. A 555**). The standard of proof is beyond reasonable doubt (see **Kamesere Moses vs Uganda S. C. C. A 8/1997** (unreported).

The representation was Ms Carol Opia, Senior State Attorney, as Counsel for the Prosecution while Ms Sarah Awelo represented the accused person on a state brief.

With regard to charges of Murder contrary to sections 188 and 189 of **the Penal Code Act** the essential elements are:

- i. There was a death - ii. The death was caused unlawfully - iii. With Malice aforethought - iv. The accused participated.

The prosecution bears the burden of proving all four constituent elements of the offence to a standard beyond reasonable doubt.

#### **i. There was a death**

The defence does not dispute the death of the deceased.

The prosecution produced post mortems reports for both **Njiba Hilda Mukendi** and **Sifa Nadkis.** PW 3, Rachael Sama, is the elder sister of the Njiba, stated that she identified the bodies of both girls at the mortuary. She also informed the court that both girls were buried at the catholic church cemetery in Kisubi.

The Police and Local Council officials who visited the scene stated that they all saw the two dead bodies. It was these officers who took them to the mortuary.

In light of the above, there is overwhelming evidence that both **Sifa Nadkis** and **Njiba Hulda Mukendi** are both dead.

#### **ii. The death was caused unlawfully**

The position of the law is that all homicides are presumed to be unlawful unless authorized by law or proved to have been accidental or excusable (see **Gusambizi s/o Wesonga [1948] 15 EACA 63)**. This finding is an inference to be drawn from the facts of a particular case.

A homicide is the killing of one human being by another.

I shall consider this element jointly with the next.

#### **iii. With Malice aforethought**

The post mortems reports show identical causes of death.

In the case Njiba Mukendi her body was found to be in a decomposing state. It was bloating and emitted a foul smell.

There were selflocking black fasteners tied tightly around her neck. There was also one on the right wrist and the right ankle. The body was opened and the organs examined. Her cause of death was determined to be asphyxia following strangulation.

The body of Sifa Nadkis was also medically examined. She was found to have two of the same self locking black fasteners tied tightly around her upper neck. The knots were at the back of the neck. She also had one on the left ankle. The body was opened and body organs examined. Her cause of death was determined to be asphyxia following strangulation. The pictures of the scene show that the fasteners were also tied to the bed where one of the deceased was found as though to secure her to the bed. The body was found covered with a wide big black polythene paper.

The second body was found naked but also covered completely in bedsheets and a big wide black polythene paper.

Both bodies were found locked inside the house.

Malice aforethought is provided for in S. 191 of **the Penal Code Act** and is deemed to be proved by evidence showing a positive intention, by the accused, to cause death although such knowledge is accompanied by an indifference whether death is caused or not.

It is also true that malice aforethought is not easily proved by direct evidence, as intention resides in the mind. For that reason, the High Court and superior courts have held in a long line of decisions, that malice aforethought can be inferred from: the type of weapon used; the nature of the injuries inflicted; the part of the body affected or targeted; and the conduct of the perpetrator before and after the attack (See **Amis Katalikawe & 2 Ors V Ug SCCA 17/94** Unreported).

From the forensic evidence, it is clear that the deceased persons were both strangled using the self-locking fasteners. The doctor noted that on both deceased persons they were tied tightly around the neck, an indication of the intention to cut off air.

The manner in which the body was covered points to a deliberate action on the perpetrator. First to cut off air to breath, then to conceal the acts. After the doing the above, the two were locked in the house and left within until the loud music and the foul smell alerted neighbours to check.

The circumstances show a deliberate act to kill. There appears to be no lawful excuse for the act.

In addition, there was an intention to cause death. It was the only likely and foreseeable result from tightly tying a fastener around the neck of a human being, knowing that this is the only passage for air breathed in.

In the result this court has no difficulty concluding that this was an intentional homicide carried out with malice aforethought.

For the above reasons I find that the second and third elements of the offence have been proved.

## **iv) Whether the accused person participated in the commission of the offence**

The accused pleaded not guilty and in his defence denied committing this face.

He stated that he arrived in Uganda for the first time on the 29th of December 2018. His travel was facilitated by a broker since he did not have valid travel documents. The purpose of his visit was to get treatment for a sick leg.

That It was, Hilda Njiba Mukendi, one of the deceased girls, who invited him to come as she said she knew a healer who would mend the leg.

It was his evidence that Hilda had been his friend since their childhood in Congo.

That when he got to the airport and tried to call Hilda, her phone was off. He made several futile attempts. In the end he sought accommodation at a guesthouse called Karibu Guest House.

The plan had originally been for him to stay with Hilda and her family, but at the time of his arrival, her cousin from Congo called Cecil was visiting. As a result, there was no room in the house for him as well.

Eventually he had to leave the country on the 5th of January 2019, without treatment, but was arrested at the airport.

It is his evidence that he has never lived at Kakeeka in Mengo and does not know PW 1, Sebuliba Michael. He also said he had never heard of or met Sifa Nadkis, the second deceased girl.

On the other hand, the prosecution states that the accused used to live at Kakeeka in Mengo where he had rented one of the houses in a large compound. PW 1, Michael Sebuliba, was the guard at the premises. He stated that he knew the accused very well and referred to him as Bob.

PW 3, Racheal Sama, a sister of Hilda also testified that she knew the accused whom she met for the first time in December 2018, when her sister introduced him as her friend.

On the 4th of January 2019, the deceased told PW 3 that she was going to visit Mali Mali, the accused. She left at midday but did not return. Later that evening, PW 3 tried to call the Hilda but she was not answering. The next morning, Rachael, PW 3, left their home in Bwebajja on Entebbe road, intending to report a case of her missing sister to Police.

It was Sebuliba evidence that on the 4th of January 2019, which was a weekend, the accused came to his house with 2 girls. They went into the premises and started playing loud Congolese music. One of the girls was a frequent visitor.

Meanwhile, at the time PW 3 was on way to the Police, Mali Mali went to their home in Bwebajja. It was only Cecil, PW 4, the guest from Congo at home at the time. He told PW 4 that he was on his way to the airport as he was leaving for the Congo. He had passed by to say his farewells. When he left, Cecil called PW 3 and told her what had just happened. PW 3 advised PW 4 to immediately jump on a boda boda and rush to the airport to try and stop the accused from leaving.

PW 4 immediately went to the airport and managed to catch the attention of the police who arrested the accused.

In the meantime at the guest house, the loud music continue to blare out of the accused person house disturbing the neighbours. The land lady directed PW 1 to cut the power to the house, but the music continued playing. On the third day a foul smell started emanating from the place. It was then that the matter was reported to the police who came to the scene and broke into the house.

The bodies of the two girls were found within, decomposing and wrapped as previously described. Because of their state, they were quickly taken to the mortuary.

As for the accused when he was arrested he was taken to Old Kampala police. PW 3 was also there. She had earlier been told that two bodies were taken to Mulago. She was asked to go and identify both of them as her sister Hilda and friend Nadkis.

From Mulago, when she returned to the station the accused had been brought in from Entebbe. It was the Entebbe police who brought the accused to the scene of crime. According to both PW 3, who had linked up with the police after the mortuary visit, and it was the accused person who led them to his house in Mengo. It was the very place where the bodies were found and there they met PW 5, Assistant Inspector of Police, Owocun Celsius, who was revisiting the scene of crime.

At the scene PW 3 recognised her sister's shoes, handbag, wallet and phone which were inside the accused person's house.

As can be seen from the evidence above, there is no direct evidence against the accused in this case. It is all circumstantial in nature.

Although very often circumstantial evidence is the best evidence it must always be narrowly examined because evidence of this kind may be fabricated to cause suspicion on another. Consequently, before inferring the guilt of an accused person from circumstantial evidence, it is necessary to ensure that there are no other co-existing circumstances which would weaken or destroy the inference (see **Magidu Musisi vs Uganda SCCA 3 of 1998**).

Generally, in a criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused (**Mureeba Janet and Others** SCCA 13 of 2003).

In **R. Vs. Kipkering Arap Koske and Another** (1949) 16 EACA.135 and **Simon Musoke Vs. R.** (1958) EA 715 it was held that in order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

In this case, the accused has completely denied the commission of the offence. It is court's view however that he was not able to rebut the evidence of PW 1 that the scene of crime was his house and he lived there. PW 1 said he knew the accused well and his evidence was not challenged on this aspect. There was no evidence of other person being present, alone with the girls in house, apart from the accused.

This is strengthened by the evidence of PW 3 who stated it was the accused who led them, the police officers and herself, to the house in Mengo. This evidence was also not challenged in any way. It is therefore my finding that the accused lived in Kakeeka as stated. It was not true that he spent this whole period in Karibu Guest house as he said.

It was also the evidence PW 3 that when the deceased left home, before she disappeared, she had said she was going to visit the accused person.

Secondly, the accused was seen entering the house with both girls. Their bodies were recovered in his house. In addition, the phone, shoes, wallet and handbag of Hilda were recovered inside the premises. They were the ones she had left home with.

When all the facts in this case are evaluated and examined closely, they are not capable of any other reasonable explanation, other than that it was the accused person who was with both girls in the house. That they were found dead when he left. This court therefore rejects his version of events as unlikely and untrue.

I therefore find that the prosecution has proved, to a standard beyond reasonable doubt, that the accused person participated in the killing of both girls.

The gentleman assessor advised this court to find the accused person guilty as charged.

In the result, and in agreement with the assessor, I find **Mali Mali Ndihoma Sisco Marshal Justine aka Francis** *guilty* on both counts of the offence of Murder, Contrary to Sections 188 and 189 of the PCA and are hereby *convict* them.

**..................................................**

**Michael Elubu**

**Judge**

**13.4.2023**