[2025] UGHC 333

### 5 **THE REPUBLIC OF UGANDA**

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

# **CRIMINAL SESSION NO. 0064 OF 2023 (Arising from Kisoro Criminal Case No. 0009 of 2022) (Arising from Kisoro CRB 784 of 2022** ¹⁰ **UGANDA** ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTION**

#### **VERSUS**

#### 15 **MBABAZI RODGERS**::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

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

#### **JUDGMENT**

- 20 The Accused Mbabazi Rodgers stands indicted for the offence of **Murder** contrary to **Section** 188 and **189** of the **Penal Code Act**. The particulars giving rise to the indictment are that Mbabazi Rodgers and others still at large on the 06/11/2022 between Kyando and Bizitiro villages in Kisoro District with malice aforethought unlawfully caused the death of Noheri. - 25 The Accused pleaded not guilty.

**Representation.**

Mr. Ainomugisha Cristopher (Senior State Attorney) appeared for the Prosecution while Mr. Nabaasa Rodgers represented the Accused on state brief.

The Assessors for this trial were Mr. Rwengyeyo Joseph and Mr. Tumushime

30 Emmanuel. This trial however was concluded with the aid of the latter as a single Assessor.

During the preliminary hearing pursuant to **Section 67** of The **Trial on Indictment Act** medical evidence in Police Form 48A, Police Form 48B and 12 photographs were admitted as uncontested.

5 Police Form 48A the request for the post mortem examination was received as exhibit P1.

Police Form 48B the post mortem report was received as Exhibit P2.

The 12 Photographs of the body of Noheri and the surrounding areas were collectively admitted as Exhibit P3.

**Burden and Standard of proof.**

This being a criminal trial it is one whose proof lies squarely on the Prosecution and the Accused has got no duty to prove his innocence. It is also proof beyond reasonable doubt. Any doubts unless satisfactorily explained must be resolved in

15 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**. - 20 **Ingredients of the offence.**

To Sustain a Conviction on the charge of murder the prosecution must prove the following beyond reasonable doubt.

- 1) **Death of a human being.** - 2) **That the death was caused unlawfully.** - 25 3) **That the death was actuated by malice aforethought.** - 4) **That the Accused participated in causing the death of the Deceased**.

5 **a) Death.**

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

Hagumimana Kanyabikingi (PW1) testified that Noheri was his son and that he

- 10 was killed. He testified that he viewed his body and that he was buried on the 08/11/2022. The other Prosecution witnesses who viewed the body of Noheri and attended his burial were Rukara Nelson (PW2), Monica (PW3) and Twizerimana Joshua (PW4). Corroborative medical evidence of Noheri's death is contained in Police Form 48B received as Exhibit P2 and conducted on the 08/11/2022. His - 15 cause of death is listed as multiple deep cut wounds with severe brain injury. This Court also viewed photographs of the body in Exhibit P3.

The Accused in his defence did not contest the fact that Noheri is dead.

I therefor find that the Prosecution has proved beyond reasonable doubt that Noheri is dead.

**b) 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 authorised by law.

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

It is the evidence of Hagumimana Kanyabikingi (PW1), Rukara Nelson (PW2) Monica (PW3), Joshua Twizerimana (PW4) and DC Kansiime Pious (PW5) that

30 they viewed the body of the Deceased Noheri and the same had multiple cuts to the head and legs. This evidence is corroborated by the post mortem report in

5 Exhibit P2 that reveals his cause of death as being multiple deep cut wounds with severe brain injury.

There is no evidence on record that the death of Noheri was accidental, excusable or authorised by law.

It is therefore my finding that the Prosecution has proved beyond reasonable 10 doubt that the death of Noheri was caused by an unlawful act.

**c) That the unlawful act was actuated by malice aforethought.** Under **Section 174** of the **Penal Code Act** malice aforethought may be proved by direct evidence or may be inferred from evidence indicating knowledge that the

15 conduct of the Accused would probably cause death.

The central issue here is whether whoever assaulted the Deceased intended to 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

- 20 (whether it is a lethal weapon or not) the manner in which it is used (whether it is used repeatedly or the number of injuries inflicted) the part of 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) - 25 **See R versus Tubere s/o Ochen (1945) 12 EACA 63**.

It is the evidence of Hagumimana Kanyabikingi (PW1), Rukara Nelson (PW2) Monica (PW3) Joshua Twizerimana (PW4) and DC Kansiime Pius (PW5) that they viewed the body of the Deceased Noheri and the same had multiple cuts to the

30 head and legs. This evidence is well corroborated by the post mortem report in Exhibit P2 that details that the Deceased Noheri suffered multiple cut wounds to 5 the scalp (50 x 2cm) he suffered a fractured skull with visible brain tissue, two cut wounds to his forearm Oval in shape measuring about (20 x 2) cm and a wound on the left leg rapturing the achilles tendon.

His cause of death is revealed to be as a result of multiple deep cut wounds with severe brain injury.

10 The sheer number of cuts that Noheri suffered from his head to his legs and the depth of these cuts that exposed his brain matter and cut his Achilles tendon leaves no doubt in my mind that the intention of his assailant was to cause his death and this is ultimately what was achieved.

This Court had the opportunity to view the photographs tendered in by the

15 Prosecution of the body of the Deceased Noheri in Exhibit P3 and they were very graphic to say the least.

It is my finding the Prosecution has proved beyond reasonable doubt that the unlawful act leading to the death of Noheri was actuated by malice aforethought.

20 d) **Participation of the Accused**.

To prove the participation of the Accused the Prosecution presented Rukara Nelson (PW2) a 15 year old boy who testified that he knows the Accused as a person who used to stay in Giswa trading centre. It is his evidence that one Sunday at around 3:00PM he was with Twizerimana (PW4), Monica (PW3) and

25 Noheri when they reached a garden of Irish Potatoes and each of them uprooted 5 Irises when the Accused and another man chased them. That the Accused was armed with a panga. According to Rukara he and Twizerimana (PW4) ran upwards while Monica (PW3) and Noheri ran to the sides. Rukara testifies that he heard Noheri pleading that *"forgive me boss"* and then heard him groaning 5 once as he continued running. That they (with Twizerimana PW4) stopped at the road and were joined by Monica (PW3) who told them that Noheri had been arrested by the Accused and that they continued home without him. He (PW2) testifies that the body of Noheri was recovered in a cave.

His evidence is corroborated by that of Monica (PW3) a 9-year-old girl who after 10 avoiredire was conducted gave her evidence on oath. It is her evidence that she

- knows the Accused and he is called Kazungu and she has seen him in Giswa. It is her evidence that they were from visiting when they passed a garden of Irish Potatoes and they began to pick some when the Accused and another man called Fire arrested her and Noheri while Rukara (PW2) and Joshua (PW4) ran away. - 15 Monica states that both the Accused and Fire had pangas and that they started to beat them but that she managed to run away leaving Noheri behind with them. She states that she was crying and calling for help but nobody came to their rescue. That she was finally able to catch up with Rukara (PW2) and Joshua(PW4) whose other name is Twize (PW4). It is her evidence that the following day they - 20 recovered the body of Noheri in a cave, his head had been split and he was injured on the arms and leg.

Further corroborative evidence was given by Twizerimana Joshua (PW4) an 11 year old boy whose evidence was received on oath after avoiredire was conducted and he testified that he knows the Accused as Kazungu and that he used to see 25 him many times in Giswa, too many times to even count. According to Joshua (PW4) it was on a Sunday in November but he forgets the year he was together

with Rukara (PW2), Monica (PW3) and Noheri when the Accused with one Fire caught Noheri and the rest of them ran away and the following day they recovered

5 his body wrapped in a sack and thrown into a cave and he was cut on the head and neck.

The Court in **Abdulla Bin Wendo versus R (1953) 20 EACA 166** laid down the following conditions as necessary for correct identification:

- **1) Familiarity of the Accused to the witnesses at the time of the offence.** - 10 **2) Conditions of lighting.** - **3) Proximity of the Accused to the witness at the scene of the crime.** - 4) **The length of time the Accused came under the observation of the witness**.

It is the evidence of Rukara (PW2), Joshua (PW4) and Monica (PW3) that they

- 15 know the Accused and that they used to see him in Giswa. All 3 were emphatic that they know the Accused with Monica (PW3) and Joshua (PW4) referring to the Accused as "Kazungu". This is the name they knew him by. It is imperative to note that the Accused is a light skinned man. Presumably this is where the "*Kazungu"* name could have emanated from. PW1 also explained that in the - 20 village the Accused is called Kazungu. To emphasise that Joshua (PW4) knew the Accused he said that he had seen him at Giswa too many times to count. The Accused in his defence denied being Kazungu and states that he was detained at Rusiza Police Post with Abraham Kazungu and that a one Kabuni stood surety for Kazungu and he was released. - 25 To this I can only reply that *arose by any other name remains a rose*. The three Prosecution witnesses oozed with confidence that they knew the Accused prior to the date that Noheri was killed and even drew a distinction between the Accused and his accomplice who they said was commonly referred to as *"Fire"* simply because *"Kazungu"* is not the name of the Accused does not mean that he was not

- 5 the one the children in PW2, PW3 and PW4 saw on the date in issue. It wouldn't be a surprise at all if the Accused's accomplice is not by his official names known as *"Fire"*. As already highlighted the Accused is light skinned and this may explain the name *"Kazungu"* as explained by PW1 that he is in the village referred to as such. I do not believe in the existence of Abraham Kazungu. This is just an 10 imaginary character that the Accused has conjured up to try and cast doubt on the Prosecution evidence. I am fortified in this position by the cross examination of DC Kansiime Pius (PW5) in which the defence made reference to a one Abraham Niyonzima a boda boda ridder who works for Kabuni and was released (as opposed to Abraham Kazungu that the Accused has coined) I will return to the 15 issue of Kabuni's workers later in this judgment but suffice it to say at this point - that Abraham Kazungu is a figment of imagination as opposed to Abraham Niyonzima.

I will therefore, reject the narrative advanced by the Accused as an afterthought. I am therefore persuaded that Rukara (PW2), Monica (PW3) and Joshua (PW4)

20 were familiar with the Accused.

According to the evidence on record the Prosecution witnesses were confronted by the Accused and another in the afternoon at about 3:00PM. This was in broad day light favouring proper identification. I therefore rule out any possibilities of factors being in place that did not favour proper identification.

25 The Accused and his accomplice chased the Prosecution witnesses and caught Noheri and Monica (PW3) before she was able to get away from them. The proximity between the Accused person and the 3 Prosecution witnesses in PW2, PW3 and PW4 did favour proper identification. 5 The Accused in his sworn defence denied working for Kabuni and to buttress this argument he stated that if he did Kabuni would have stood surety for him like he did for Abraham Kazungu supposedly.

I do not believe that the Accused is being truthful that he did not work for Kabuni. The evidence on record by Hagumimana (PW1) is that the Accused works for

- 10 Kabuni and guards his Irish Potatoes gardens. The findings of DC Kansiime Pius (PW5) and D/AIP Tumukwasibwe Nestor (PW6) were that the Accused used to work as a guard for Kabuni guarding his gardens and in fact according to DC Kansiime (PW5) the statement that he took from Kabuni was to this effect. It is therefore no small wonder that the garden in which the Prosecution witnesses - 15 PW2, PW3, PW4 and Noheri were attacked for picking Irish Potatoes from belonged to Kabuni.

This therefore explains the presence of the Accused in this garden. It must be noted that the evidence presented against the Accused is circumstantial evidence

- 20 since there are no eye witnesses to the death or Murder of Noheri. The Supreme Court cautioned in such a situation in **Byaruhanga Fodori versus Uganda [2004] UG SC 24** as follows: *"It is trite law that where the Prosecution case depends solely on circumstantial* - 25 *facts are incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The Court must ensure that there are no other co-existing circumstances which weaken or destroy the inference of guilt"*

*evidence, the Court must before be deciding on conviction find that the incalpatory*

5 Furthermore, the Court of Appeal in **Mugambe Francis versus Uganda Criminal Appeal No. 0060** of **2011** held that in regard to circumstantial evidence the facts must be closely knitted and must carry conviction to the mind of the Judge.

The evidence on record that is not rebutted is that when Monica (PW3) managed

10 to escape from clutches of the Accused and his accomplice she left Noheri in their possession and at that point they had already begun to assault them. Rukara recalls hearing his brother plead with the Accused crying out "*forgive me boss"* before he heard him groan. Noheri did not catch up later with his siblings like Monica (PW3) did. His body was discovered in a cave the following morning.

I have not found any co-existing circumstances that would weaken or destroy the inference of the Accused's guilt in the Murder of Noheri. The evidence presented by the Prosecution has been cogent and consistent PW2, PW3, and PW4 gave their evidence in a candid and forthright manner. I did not detect any deceit in their

- 20 bodily language. Inspite of their young age they were very consistent and did not waiver during cross examination. Indeed, their evidence is closely knit and I am convinced that the Accused is responsible for the death of Noheri. The defence of alibi raised by Accused has been discredited by the Prosecution evidence. - The Court of Appeal in **Jagenda John versus Uganda Criminal Appeal No.0001** 25 of **2011** in reference to "*the last seen doctrine"* observed that it has a global application to homicides and that this doctrine creates a rebuttable presumption to the effect that the person last seen with the Deceased person bears full responsibility for his or her death.

5 Noheri was last seen in possession of the Accused and his accomplice. The Accused has not in his evidence rebutted the presumption that he bears full responsibility for his death.

Under the doctrine of common intention, it is irrelevant as to who between the

- 10 Accused and his accomplice delivered the fatal blow that took the life of Noheri. In this regard **Section 20** of the **Penal Code Act** provides as follows: *"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of that purpose an* - 15 *consequence of that purpose each of them is deemed to have committed the offence"*

The Accused therefore in acting in unison with this accomplice commonly known as Fire and not in any way disassociating himself from the actions that led to the death of Noheri is responsible for his Murder.

*offence is committed of such a nature that its commission was a probable*

After considering the evidence adduced by the Prosecution and the defence together and in full agreement with the single assessor, it is my finding that the Prosecution has successfully proved its case beyond reasonable doubt and I accordingly find the Accused guilty of Murder contrary to **Section 188** and **189** of

25 the **Penal Code Act** and convict him of the same. Before me,

………………………..………….. **Samuel Emokor** 30 **Judge 19/02/2025**

## 5 **19/02/2025**

Accused present

Prosecution: Mr. Ainomugisha Christopher (Senior State Attorney).

Mr. Nabaasa Rodgers on state brief.

Single Assessor present.

10 Clerk: Ngororano.

**Court**: Judgment delivered in open Court.

Before me,

………..……………………….. **Samuel Emokor** 15 **Judge**

**19/02/2025**

**Prosecution:** The offence of Murder attracts a maximum sentence of death. Cases of this nature are rampant. A human life was lost. Given the degree of injury that

20 was inflicted on the Deceased that included brain injury a vulnerable part was targeted.

The offence was committed against a 9 year old child **at the** time. There was an attempt to conceal the crime by taking the body into a cave. The Convict was ruthless in committing the offence. **Paragraph 19** of the **Sentencing Guidelines**

25 provides that in cases of this nature the range is from 35 years to death. I pray that the Convict is sentenced to 35 years imprisonment. I so pray.

30 **Allocutus.**

- 5 **Mr. Nabaasa**: According to Paragraph 19 referred to by the Prosecution Court is to consider factors in Paragraph 21 that provides mitigating factors like being a 1 st offender. There is no evidence that the Convict has ever committed any offence. The Convict is still youthful. He is 23 years old. Police Form 24 also reflects a youthful age. The Convict has family responsibilities. He has a wife and child. He - 10 was the sole bread winner of his family. The Convict is remorseful. He looks remorseful and has been on remand for over 3 years. We pray that the above mitigating factors are taken into consideration. We so pray. **Court**: Does the Convict wish to say anything.

**Convict:** I am an orphan. That is all I wish Court to note.

15 **Court:** Sentence reserved for the 21/02/2025.

Before me,

………………..………………….. 20 **Samuel Emokor Judge 19/02/2025**

**19/02/2025.**

25 **REASONS FOR SENTENCE.**

Mbabazi Rodgers has been Convicted of the offence of Murder contrary to **Section 188** and **189** of the **Penal Code Act.**

The Prosecution rightly submits that this is a grave offence that calls for a maximum sentence of death. It therefore cannot be treated lightly.

5 The brutality with which this offence was committed and this against a defenceless child deserves to be condemned. The Convict and his accomplice showed absolutely no regard for human life.

The Victim was killed merely for uprooting five Irish Potatoes and even when he pleaded with the Convict crying out "*boss please forgive me"* he received no mercy

- 10 from his captors. The Deceased suffered several/multiple cuts all over his body in what one would describe as an over kill. The body was further degraded by being wrapped in a sack and thrown into an abandoned cave from where it was recovered. I hold the firm view that the Convict deserves to face the full force of the law. It is quite clear from the demeanour of the Convict that that he has not - 15 fully appreciated the gravity of his actions. The trauma that was occasioned to the other children who testified before this Court will remain with them forever. It is imperative that the Convict learns to appreciate the value of human life and this I am persuaded can only be when he serves a lengthy custodial sentence that will enable him to reflect on the error of his ways and to undergo reform and - 20 rehabilitation.

In passing my sentence I will take into consideration the provisions of the **Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Direction** that calls for starting point for consideration of sentence in cases of this nature at 35 years with aggravating factors increasing the sentence and

25 mitigating factors reducing the same. **Sentence**.

> For the reasons advanced above for the offence of Murder contrary to Section 188 and 189 of the Penal Code Act the Convict is hereby sentenced to serve 30 (thirty) years imprisonment.

> > 14

5 I will from this sentence deduct the period spent on remand by the Convict of 2 (two) years and 3 (three) month. In the result the Convict will serve 27 (twentyseven) years and 9 (nine) months of his sentence commencing today the 21/02/2025.

Right of Appeal explained within 14 days.

10 Before me,

……………………………..…………….. **Samuel Emokor Judge** 15 **21/02/2025**

**21/02/2025.**

Convict present.

20 Prosecution: Ainomugisha Christopher (Senior State Attorney)

Mr. Nabaasa Rodgers on state brief.

Assessor present.

Clerk: Godson.

**Court**: Sentence passed in open Court.

25 Before me,

……………………………….………..

**Samuel Emokor Judge** 30 **21/02/2025**