[2025] UGHC 120

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA CRIMINAL SESSION CASE NO. HCT-16-CR-SC-0042 OF 2022

[Arising from Kibaale Criminal Case No.043/2018; CRB No. 926/2018])

#### UGANDA===========================PROSECUTION VERSUS

MUHEREZA MANIGAMUKAMA==================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **JUDGMENT**

- The accused Muhereza Manigamukama was indicted with the offence $[1]$ of Murder C/ss 188 & 189 PCA Cap.120. It is alleged that on the 28/8/2018 at Kyamakabugo village in Kibaale District, the accused murdered one Nimusiima Rebecca. The accused pleaded not guilty to the offence. - It is the prosecution case that on $28/8/2018$ , **Kyampaire Elizabeth** was $[2]$ together with her children, including her deceased daughter, a one Nimusiima Rebecca, in the garden planting beans and when it clocked 2-3pm, she sent the deceased and other children to her mother's place and for her, she went to her husband's place. - On the following day at around 8:00am, Kyampaire Elizabeth, mother $[3]$ of the deceased was once again in the garden working. The deceased's brother came to ask her about the whereabouts of the deceased. This shocked her because the previous day, she had sent the children including the deceased to their grandmother a one Tibabikwata Maria Thereza. The deceased's brother could not explain how the deceased disappeared from them. Upon this shock, she reported the missing of her daughter to her mother, her husband a one Kisembo John and other people and a search for the deceased ensued. - During the search, **Kyampaire Elizabeth** and the search party, since it $[4]$ had rained the previous night, saw footmarks from the accused person's place passing through a garden of cassava that led to a stream of water. She became curious to follow the footmarks. The footmarks led her to the stream where she found the accused who was well Page $| 1$

dressed as if he was going for a journey. The accused inquired from them as to who they were looking for. **Kyampaire** told him that they were looking for her missing daughter. The accused told her that the stream water were too little to sweep and carry away a 12-year-old girl and therefore, they, the search party should instead go and put up announcements on the radio of the missing child. **Kyampaire** felt that the accused was trying to divert the search team from further search of the deceased.

- In the meantime, other people were joining the search. They divided $[5]$ themselves into many groups. It is then that below the house of the accused, they found a pair of slippers and a white dotted cloth with pink colours which was identified to belong to the deceased and then a heap of cassava tubers the deceased's mother had given her to carry to her grandmother's place. This guided the search party to focus the search around the accused's place/area. It is then that on about 100 metres, they found a bushy place with signs of struggle. On this spot there were footmarks which they followed that led them back to the bank of the stream where they had found the accused squatting. The search team searched the stream flowing water and found the body of the deceased with its female sexual organs and anal muscles raptured and or extended. It was a horrifying scene. The deceased's mother collapsed to only recover when she was already at home and her dead child lying aside. - Upon recovery of the deceased from the stream, the accused who was $[6]$ with the searching team, because of his conduct that made the search team suspicious, was immediately arrested by the members of the public but police arrived in time and rescued him from likely mob action. As a result, the accused was subsequently charged with the instant offence. - In exercise of his rights under $S.73(2)$ TIA, the accused opted to keep $[7]$ quiet in his defence leaving court to evaluate the evidence on record and determine his fate. - [8] It is trite that the burden of proof in criminal cases is upon the prosecution to prove the guilt of the accused beyond reasonable doubt.

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The burden never shifts to the defence except in a few exceptions provided for by the law. A conviction is secured on the strength of the prosecution case and not on the weakness of the defence. The prosecution is enjoined to prove all the ingredients of the offence to the required standard; Woolmington vs DPP [1935] A. C 562 and Lubega vs Uganda [1967] E. A 440.

- In the case of murder, the prosecution can only secure a conviction $[9]$ upon proving the following ingredients of the offence: - Death of the person named in the indictment. $1.$ - That the death was unlawfully caused. $2.$ - That the death was caused with malice aforethought. $\overline{3}$ . - That the accused person participated in and caused the death of $4.$ the deceased. - See Mukobe vs Uganda, S. C. Crim. Appeal No. 12 of 1995.

# Death of the deceased.

- [10] Under **S.66 TIA**, the prosecution adduced evidence of a Post-Mortem Report which was admitted as P. Exh.1. As per the Post-mortem Report, the body was identified by the mother of the deceased, Kyampaire Elizabeth (PW1) as that of the deceased. The deceased was found to had died of strangulation as evidenced by bruises and abrasions on the neck of the victim and severe bleeding secondary to rupture of the hymen and internal anal muscles. - [11] The Post-mortem report (P. Exh.1) corroborated the evidence of Kyampaire Elizabeth (PW1) and Tibejukya Francis (PW2), the L. C. Chairman of the area who participated in the search of the deceased and found the body in a stream of flowing water. D/Sgt Mbabazi Robert (PW3) is a police officer who retrieved the body of the deceased from the stream water. - [12] I find the totality of the above as sufficient evidence proving beyond reasonable doubt proving the death of the deceased, Nimusiima Rebecca.

# Death was unlawfully caused.

[13] It is trite law that the law presumes every homicide to be unlawful unless it is accidental or excusable and authorised by law. The circumstances that make death excusable include defence of person or property; Gusambuzi s/o Wesonga vs R [1948] 15 EACA 65 and Uganda vs Okello [1992-93] HCB 68.

In this case, there is nothing to show that the death of the deceased fell into the exceptions above. Death arising out of strangulation and severe bleedings secondary to rupture of the hymen and internal anal muscles is not justified at all and therefore, is unlawful.

# Death was caused with malice aforethought.

- [14] S.191 PCA defines malice aforethought as the intentional killing of a human being or knowledge that the act or omission will result into death of a human being, Mugao & Anor vs R [1972] E. A 543. To determine whether or not the prosecution has proved malice aforethought, court considered the following circumstances; nature and number of injuries inflicted, the part of the body injured (whether vulnerable or not) and the type of weapon used, see R.vs Tubere s/o Ochan (1945) 12 E. A. C. A 63. - [15] In the instant case, the post-mortem report (P. Exh.1) established the cause of death of the deceased as strangulation deduced from the neck bruises and abrasions and severe bleeding as deduced from the rapture of the internal anal muscles. Strangulation of the neck and injury to the internal anal muscles of a child aged 12-14 years, the estimated age of the deceased at the time, refer to the vulnerable parts of the deceased's body and whoever inflicted such injuries must have intended the deceased to die. - [16] I find the $3^rd$ ingredient of the offence duly proved beyond reasonable doubt by the prosecution. Participation of the accused in the death of the deceased. - [17] This is the last and most important ingredient of the offence considering the fact that the accused pleaded not guilty to the offence.

The prosecution case is however based entirely on the following circumstantial evidence:

- (a) The location of the scene of the crime was around the accused person's house. - (b) The conduct of the accused person after the alleged commission of the offence. - [18] According to Kyampaire Elizabeth (PW1), the mother of the victim, when the search team for the missing daughter found the accused squatting on the bank of a stream of flowing water, before any of the search team inquired from the accused any information, the accused who was well dressed as if he was going for a journey or for a function immediately started questioning the search team as to who they were looking for. Then, when the accused was told that they were looking for **PW1's** missing daughter, the accused down played the search and authoritatively told **PW1** that the stream water was too little to sweep and carry away a 12 years old girl. Indeed, as PW1 observed, the stream was too small to defeat the deceased and drown her. Then, the accused emphasised that the search team should instead go and put up announcements on radio. PW1 felt and rightly so, that the accused was trying to divert the search team from further search of the deceased around this area. The search team however maintained their search spirit. At the closure of the search, the deceased was recovered at the spot where PW1 found the accused squatting when he unsuccessfully tried to divert the search team by advising them to abandon the search and instead go to put up announcements of a missing child on radios.

[19] Further, according to PW1 and the Area L. C. I Chairman (PW2), footmarks were found to and from the accused's house and then to various spots including where the deceased was strangled and killed, and the stream where the body of the deceased was recovered. The scene of the crime was all around the accused's house. The accused was found well dressed as if ready for a long journey and or function, probably he had prepared himself and was ready to flee the scene. In Byaruhanga Fudori vs Uganda S. C. Crim. Appeal No. 18 of 2002 [2005] 1 ULSR 12, the Supreme Court of Uganda held that:

"It is trite law that where the prosecution case depends solely on circumstantial evidence, the court must, before deciding on 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 quilt. The court must be sure that there are no other co-existing circumstances which weaken or destroy the inference of guilt. (see also Musoke $v R [1958] E. A 715$ ".

- [20] In the instant case, I am alive of the need for trial courts to treat circumstantial evidence with caution and therefore a need to narrowly examine it before it is depended upon for a conviction. I nevertheless find the above uncontested evidence of PW1 and PW2 pointing to none other than the accused as responsible for the death of the deceased. The accused's behaviour and conduct clearly showed that he knew everything that had occurred to the deceased before anybody knew of her death. The available circumstantial evidence point irresistibly to the guilt of the accused. The accused was new in the area where he had come to work as a porter. There is no indication or suggestion whatsoever that both PW1 and PW2 had any motive to frame him up for such an offence or would think of such. - [21] The honourable gentlemen assessors found that the body of the deceased was found around the home of the accused. That the accused tried to confuse the search party that was looking for the victim. That the footmarks were to and from the house of the accused to a spot where she was strangled and the bank of the stream where the body was found. That all the above point to the accused as the offender. In agreement with the assessors, I find that the prosecution had proved beyond reasonable doubt that it is the accused who is responsible for the murder of the deceased. I find him guilty and convict him accordingly.

Dated at Hoima this $24$ ^th day of **January**, 2025.

.......................... **Byaruhanga Jesse Rugyema** Judge

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## $24/1/2025$ :

Accused present.

2 Assessors present.

Mr. Benjamin Asasira for defence.

Mr. Ochopa

Ms. Namusobya | for state.

Ms. Kenyange: clerk.

### Court:

Judgment delivered in the presence of the above.

### State:

The circumstances under which the victim lost her life was very barbaric. The deceased was of a very young age - about 12 years and before she met her death, she was first brutally defiled. It will only be fair that the convict is sentenced to 50 years' imprisonment.

### Mr. Asasira:

The convict is aged 38 years, he has a family of 3 children and has spent a period of 6 years and 4 months on remand. In the premises, I pray for leniency in sentencing so that the convict can serve the sentence and then return to look after his family.

### **SENTENCE:**

The accused/convict aged 38 years is convicted of a very serious offence of murder that carries a maximum sentence of death. The deceased died under very painful and sad circumstances. Before she met her death, the deceased then aged about 12-14 years, was defiled and her internal anal canal muscles interfered with. She died a painful and brutal death which traumatized the mother on seeing the body of her daughter with raptured/extended genitals and the anus. The foregoing amount to aggravating factors. In Mutebi Ronald & Anor vs Uganda Crim. Appeal Nos. 259 of 2019 & 18 of 2020 (C. A), a sentence of 30 years' imprisonment in a case that was of a brutal murder was confirmed.

In the premises, considering the totality of the above, I do sentence the accused to a term of 30 years' imprisonment and upon deduction of 6 years and 4 months, spent on remand the convict is to serve 23 years and 8 months' imprisonment.

$R/A$ explained.

Sgd: Byaruhanga Jesse Rugyema Judge $24/1/2025$