[2024] UGHC 486

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-CR-SC-0211 OF 2022**

**UGANDA================================================PROSECUTOR**

**VERSUS**

**MUGISA MATIYA============================================ACCUSED**

**BEFORE: JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**INDICTMENT AND CASE BACKGROUND:**

The Accused was indicted for the offence of Murder contrary to Sections 188 and 189 of the Penal Code Act.

The brief facts in relation to the Indictment are that on the 20th day of October 2021 at Bubwika Village, Kibiito Town Council in Bunyangabu District Mugisa Matiya alias Atwooki murdered Akakimpa Evas.

The Prosecution case in brief is that on 20th of October 2021 the Accused assaulted the deceased Akakimpa Evas over a disagreement about land which eventually led to her death on or around the 25th of October 2021 and that prior to this the Accused had subjected the deceased to domestic violence on other occasions. The deceased had proceeded to her mother’s home on or around the 20th October 2021 complaining about not feeling well and had been taken to a clinic for treatment where she passed away a few days later. A post mortem examination was done on the deceased and it was established that the cause of death was due to blunt force trauma with significant abdominal injuries. The Accused was subsequently arrested and charged.

**BURDEN AND STANDARD OF PROOF:**

According to the time-honoured case of **Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The locus classicus in this regard is the case of **Miller v Minister of Pensions (1947) 2 All ER 372** wherein Lord Denning stated at Pages 373-374 that,

“*The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”*

The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

**ISSUES ARISING:**

The issues in this matter are based upon the ingredients of the offence of murder. Section 188 of the Penal Code Act provides that,

“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder.”

The ingredients apparent in the offence of murder are therefore,

1. Death of a human being; 2. Death was caused unlawfully; 3. Death was caused with malice aforethought; and 4. The Accused person is responsible for the death.

**DETERMINATION OF ISSUES:**

1. **Whether there was death of a human being:**

The Prosecution tendered in a Post Mortem Report on Police Form 48B as part of the Agreed Facts under Section 66 of the Trial on Indictments Act and it was entered into evidence as Prosecution Exhibit 2 (**PE 2**). The Post Mortem Report revealed Akakimpa Evas had died due to blunt force trauma with significant injuries to the abdominal area.

**PW1 Nyamuti Javlin**, a maternal aunt to the deceased testified confirming the death and witnessing the burial of Akakimpa Evas.

This issue of therefore resolved in the affirmative.

1. **Whether the death was caused unlawfully:**

According to the case of **Gusambuzi s/o Wesonga v R (1948) 15 EACA 65** homicide, unless accidental or caused in circumstances that are excusable like self-defence or defence of property, is unlawful.

Furthermore, it was also held in **Paulo s/o Mabula v R (1953) 20 EACA 207** that in a capital case the State should tender any medical evidence as to death that may be available and where the accused alleges the fatal wound to have been inflicted accidentally it may well be vital to the interests of justice for any medical evidence to be before the trial judge, in as much as expert testimony may either establish or refute such a defence.

In this matter the primary evidence of unlawful death was in the post mortem report **PE 2.** According to the results of the post mortem examination, the deceased had a dark clot in the heart. The report also detailed significant abdominal injuries as follows,

*“Inflamed mesenteries; remarkably red muscles of the right side of the abdominal wall; blood in the abdominal cavity approximately 0.5 litres. The inflammation is mostly right sided with left side normal …”*

The report further disclosed the cause of death as,

*“Blunt force trauma with significant abdominal findings as above.”*

The evidence from the medical report leaves no doubt that the deceased was a victim of a particularly violent attack that left her with internal injuries and internal bleeding.

This issue is therefore resolved in the affirmative.

1. **Whether the death was occasioned by Malice Aforethought:**

Section 191 of the Penal Code Act provides that,

*“Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances –*

1. *An intention to cause the death of any person, whether such person is the person actually killed or not; or* 2. *Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.”*

Additionally, in the case of **R v Tubere s/o Ochieng (1945) 12 EACA 63** the defunct East African Court of Appeal held with regard to its duty in proving malice aforethought that the Court had to consider the weapon used and the part of the body injured.

The aforementioned considerations have subsequently been expanded in other decisions such as **Uganda v. Fabian Senzah (1975) HCB 136** (affirmed in **Lutwama and Others v Uganda - Supreme Court Criminal Appeal No. 38 of 1989**) to include the conduct of the accused before, during and after the attack.

In this particular matter, the Prosecution’s case with regard to malice aforethought is based on inference of the Accused’s intent considering the nature of injury and the part of the body injured. The Prosecution also relied upon evidence from witnesses who testified about what the deceased had told them with regard to the circumstances leading to her own death as well as the findings of the investigating officer in this matter.

Despite the occasional reference to medical terms, the Post Mortem Report **PE 2** clearly established the nature of the injuries sustained by the deceased. While the report was admitted as part of the agreed facts, it should still be standard practice to have the medical examiner appear in court to testify concerning the findings in the report to remove any lingering doubts or ambiguities. Notwithstanding the absence of the medical examiner, the report still fairly demonstrates in plain terms as laid out above a violent assault on the deceased’s abdominal area that left her with significant internal bruising and bleeding.

Any attack significant enough on the vulnerable abdominal area as to cause internal bleeding and ultimately death meets the criteria stipulated under Section 191(b) of the Penal Code Act. It was an attack for which the attacker ought to have known it could cause death but was indifferent about the possible outcome.

This issue is accordingly resolved in the affirmative.

1. **Whether the Accused caused the death of Akakimpa Evas:**

In this matter, the evidence about the Accused’s responsibility is completely circumstantial as nobody testified to actually seeing him deliver the fatal blow or blows that eventually led to the death of the Victim.

The Prosecution led evidence from witnesses who testified that prior to her demise the deceased had informed them that the Accused had been physically abusing her.

In terms of circumstantial evidence, the Supreme Court relied on the holding of the defunct East African Court of Appeal in **R v Kipkereng Arap Koske (1949) 16 EACA** 156 and held in **Byaruhanga Fodori v Uganda – Criminal Appeal No. 18 of 2002** that,

*“It is trite law that where the prosecution case that where the prosecution case depends solely on circumstantial evidence, the court must before deciding upon a conviction find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty. The Court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of guilt. (See* ***S. Musoke v R [1958] EA 715 & Teper v R [1952] AC 480****)”*

The admissibility of evidence of dying declarations is governed by Section 30(a) of the Evidence Act where it is provided that,

*“Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant facts … when the statement is made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person’s death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his or her death comes into question;”*

In this case the statements about the Accused being violent that the deceased made to PW1 and PW2 are admissible under Section 30(a) of the Evidence Act because while she was not under expectation of death when she made them, they relate to circumstances surrounding her eventual death.

In the case of **Mibulo Edward v Uganda – Criminal Appeal No. 17 of 1995**, the Supreme Court agreed with the Trial Judge’s position on the law regarding dying declarations which position was to the effect that,

“*The law regarding dying declaration was restated by the Supreme Court recently in the case of Tindigwihura Mbahe v. Uganda Cr. App. NO. 9 of 1987. Briefly the law is that evidence of dying declaration must be received with caution because the test of cross examination may be wholly wanting; and particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification of the assailant is usually more difficult than in daylight. The fact that the deceased told different persons that the appellant was the assailant is no guarantee of accuracy. It is not a rule of law that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking very unsafe to base conviction solely on the dying declaration of a deceased person made in the absence of the accused and not subjected to cross examination unless there is satisfactory corroboration”*

With the cases above in mind, I address my mind to the evidence of the Prosecution alongside that of the Accused on this ingredient.

**PW1** the deceased’s maternal aunt testified that prior to her death the deceased had come to her home complaining about headache and that **PW1** had decided to call the Accused to take her to hospital. **PW1** further testified that while the deceased had never complained to her she would come to **PW1**’s house whenever she had quarreled with the Accused and he would come to collect her and leave with her after things had been settled. The evidence of **PW1** concerning conflicts between the deceased and the Accused was consistent with the statement that **PW4** the investigating officer testified about taking from her. According to **PW4**, **PW1** stated to police that on 19th October 2021 the deceased had gone to her place seeking refuge from her husband who she feared was going to kill her as it was the second time he was assaulting her. **PW1** had gone on to state to police that she had called the Accused to collect his wife and take her for treatment which detail was also consistent with her testimony in court.

For his part the Accused testified on oath that his wife was had gone to relatives as they had issues related to land at the sub-county. He went on to testify that he had gone and picked her up to take her for treatment when **PW1** informed him about her not being well. He stated that she had been admitted for malaria and that he had not been aware about her death until he was arrested. He stated that he was looking for money to pay her bills when he was arrested. Furthermore, the Accused denied having been charged with domestic violence but admitted that he was out on bail concerning the land case. Upon cross-examination the Accused denied being violent to his wife.

**PW2 Kabahweza Brenda**, a registered nurse, testified that she used to work at the Good Hope Medical Centre and that on 22nd October 2021 the Accused brought the deceased to the clinic. The deceased had complained of headache, general weakness, fever and not eating well. She further testified that the Accused had claimed that the deceased had mental illness. Upon examination of the deceased, **PW2** determined that she had malaria for which they started treatment. **PW2** then testified that as the deceased was recovering she indicated that she wanted to go to her relatives’ place as her husband kept beating her with a mingling stick. **PW2** testified though that the deceased did not indicate when she was last beaten but had shown them a swelling on her head and had informed them that her case was ongoing with the police and LC1 authorities. According to **PW2** the deceased had seemed like she was recovering but had developed chest pain and her blood pressure had fallen inexplicably. They tried to save her life but the deceased succumbed to what **PW2** believed to be a heart attack due to a clot. **PW2** testified that she had not seen any sign of mental illness on the part of the deceased contrary to the Accused’s statement at her admission.

Upon cross-examination, **PW2** denied that the deceased died due to negligence and given the post mortem report it was clear that the clinic where the deceased died was not at fault. The cause of death was due to internal bleeding from injuries occasioned by blunt force trauma which evidence was consistent with the deceased’s reference to **PW2** about the Accused hitting her with a mingling stick.

**PW4**’s testimony also further corroborated the deceased’s dying declaration in as much as he testified on cross-examination about having accessed an investigation file on domestic violence charges against the Accused vide Bunyangabu CRB 351/2021. Counsel for the Defence argued that the testimony of **PW4** in that regard was inadmissible on grounds that it was hearsay in as much as the investigation file was not within the direct knowledge of the witness.

I disagree with the above for two reasons. First, it was Counsel for the Defence who raised the question of the domestic violence case in cross-examination. It never came up during examination in chief of **PW4**. Once the question was raised the witness answered truthfully that he had learnt of the file from a colleague of his and he had relied upon it to back up his own murder investigation. The Prosecution never intended to rely upon this issue until Counsel for the Defence brought it into the open and required a response from **PW4** over the same. The second reason is that it is not correct that **PW4** never looked at the file. By his own testimony on cross-examination, he testified that he had drawn copies from the domestic violence file for purposes of his own investigation. He was therefore addressing the file contents directly from what he himself had seen on the file in the course of his own investigation.

**PW4** went on to testify that the domestic violence case had not been concluded by the time the deceased was murdered. It was therefore still an open case. The domestic violence case is also relevant in as much as it is a fact that tends to show what caused or led to the murder of the deceased in line with Section 6 of the Evidence Act. Furthermore, in the case of **Makin v Attorney General of New South Wales (1894) AC 57** it was held that,

*“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”*

Per the reasoning of the Privy Council in Australia above, the fact of the open and unconcluded domestic violence investigation is relevant in as much as it has a corroborative bearing on the dying declaration of the deceased about the circumstances prior to her death involving violence, which violence is what the Prosecution contends led to the deceased’s death. It was in essence evidence from the grave left behind by the deceased as to the state of things leading to her death. It also serves to rebut the Accused’s own testimony that he was not violent toward the deceased.

Before I leave the point of Domestic Violence I note that Counsel for the Accused also argued that the domestic violence was not specifically brought out by PW4 and yet the Domestic Violence Act provides for several manifestations of the said violence. To that extent, her argument was that the domestic violence case was of no proven relation to the present case. As I have explained above, the purpose applied by the Court to the evidence of the unconcluded domestic violence investigation was not to prove the physical violence per se. Rather it served to confirm that the Accused and the deceased were living together in circumstances or in a state of things that was conducive for the kind of violence that the deceased suffered leading to her death. It also served to confirm that no person other than the Accused was responsible for the violence.

PW4 also testified that the Accused was arrested in Kasunganyanya while fleeing to Kasese. The Supreme Court has held in the case of **Remigious Kiwanuka v Uganda – Criminal Appeal No 41 of 1995** that,

*“The disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearance from the area is incompatible with innocent conduct of such a person.”*

I am inclined to believe that the Accused was arrested in the process of fleeing. This is because right from the time his wife was admitted he had started laying the ground for covering his tracks. **PW2** testified that the Accused had stated during the admission of the deceased that she had mental issues which mental issues **PW2** had not observed. The question at that point was why the Accused volunteered that information. When one looks at all the other circumstantial evidence it is clear that he was deliberately discrediting the deceased in case she happened to talk about him assaulting her. The Accused’s initial unsolicited statement about the deceased’s mental state and his subsequent arrest on the way to Kasese together constitute evidence of a guilty state of mind.

In light of the above I find that the evidence of **PW1**, **PW2** and **PW4** relating to the deceased’s dying declaration established beyond reasonable doubt that the Accused was responsible for the violence which led to the death of Akakimpa Evas. The inculpatory facts inherent in the circumstantial evidence surrounding her death are incompatible with the Accused’s denials and claims of innocence.

This issue is also therefore resolved in the affirmative.

**CONVICTION:**

I therefore agree with the opinion of the Assessors and hereby find the Accused guilty and I accordingly convict him for the murder Akakimpa Evas contrary to Sections 188 and 189 of the Penal Code Act.

**SENTENCE:**

The Convict in this matter stands convicted of the murder of Akakimpa Evas his wife. I have taken into account his advanced age and the fact that he is a first time offender with no previous criminal record.

I have also taken into account the fact that the circumstances of the murder are essentially circumstances of domestic violence which vice is unfortunately quite prevalent in our society today. There is need for a deterrent message especially given that the domestic setting ought to be a place of utmost safety for family members. Where there is disagreement between spouses the law offers the avenue of separation or divorce. Under no circumstances should marital strife ever have to reach the point of violence to the point of causing death. In this matter the nature of injuries to the deceased as established in the post mortem report showed that the convict subjected the deceased to a beating of such savagery administered to the trunk (abdominal) area of her body that she had internal bruising, internal bleeding and clotting which all eventually led to her untimely death. This reflected a callous state of mind with no apparent regard for the sanctity of human life and more so for someone as close as a wife.

In these sort of circumstances, I would be inclined to apply a sentence no less than 30 years as this was an offence that involved a breach of a sacred trust as shared between spouses. However, in consideration of the advanced age of the convict I hereby sentence him to a term of imprisonment of 20 years less time spent on remand being 2 years, 5 months and 26 days. The convict shall therefore serve a term of imprisonment of 17 years, 6 months and 5 days.

The Convict has the right to appeal the sentence and conviction to the Court of Appeal within 14 days from the date hereof.

**David S. L. Makumbi**

**JUDGE**

**08/05/24**