[2025] UGHC 117

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA H. C. CRIMINAL SESSION CASE NO. 0229 OF 2023 (Arising from Kakumiro Criminal Case No. 39/2022; CRB No. 249/2022)

$UGANDA \texttt{=} \texttt{=} \texttt{=} \texttt{=} \texttt{=} \texttt{=} \texttt{=} \texttt{=}$

#### **VERSUS**

MURUNGI HOPE KAKYEYERE================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### **JUDGMENT**

- The accused Murungi Hope Kakyeyere was indicted with 2 counts of $\lceil 1 \rceil$ Murder C/ss 188 & 189 PCA in Count I and Aggravated Robbery C/ss **285 & 286 (2) PCA** in Count II. In Count I, it is alleged that on $1/5/2021$ at Lusagazi village in Kakumiro District, the accused and other still at large with malice aforethought killed Barigye Stephen and in Count II, it is alleged that on the same date and at the same place, the accused $S/no.$ phone large robbed mobile $\overline{a}$ still $at$ others with 359926025003470 and unspecified amount of money and at or immediately before or immediately after the said robbery, murdered the victim, Barigye Stephen. The accused person pleaded not guilty to the 2 counts. - It is the prosecution case that the deceased who was the husband of $[2]$ the accused had a concubine by the names of Nuwasasira Juliet who he planned to introduce in the month of **May**, 2021. - On $1^{st}$ / $2^{nd}$ May, 2021 when the deceased was on his way home from the $\overline{131}$ cattle market where he had taken his cattle for sale to secure proceeds for introduction of the said Nuwasasira Juliet, he was waylaid by unknown assailants who fatally assaulted him by inflicting multiple extensive cut wounds on the head and bruises on the upper limbs and the chest. - It is the further prosecution case that because the deceased intended $[4]$ to introduce and get the said Nuwasasira Juliet as a $2^{nd}$ wife, it jilted the accused who on various occasions approached various people who include Tandeka Geoffrey (PW6), Ninsiima David (PW7) who she Page $|1$

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sought to recruit to waylay her husband, the deceased and assault him That this information was relayed to the or beat him to death. deceased but the deceased ignored the information down playing it as the usual attitude of jilted women.

- James Kuzaara (PW1), a brother of the deceased (brother in law of the $[5]$ accused) claimed that the accused had told him to warn the deceased of his plans of maintaining the concubine or else he was not going to blame anybody if anything happened to him. Mawanda Karim (PW2) revealed that the deceased used to tell him how he was always afraid of the accused whom he suspected of intending to poison him because of his intention to marry another wife. - In exercise of her rights under S.73 (2) TIA, when put on her defence $[6]$ upon the closure of the prosecution case, she opted to keep quiet. - In criminal cases, it is trite that it is the duty of the prosecution to $[7]$ prove the guilt of the accused person beyond reasonable doubt and that the burden of proof does not shift to the accused person. It remains with the prosecution except in some exceptional cases where the statute provides otherwise which are not applicable to the instant case, Woolmington vs DPP [1935] AC 462 and Oketh Okale vs R [1965] EA 555. It is also the law that a conviction should not be based on the weakness of the case as put up by defence but it must be based on the strength of the prosecution, Uganda vs Oloya s/O Yovan Oweka [1977] HCB 6. - MURDER (COUNT. I) - In the case of murder, the prosecution can only secure a conviction $[8]$ after proving inter alia, each of the following ingredients: - Death of the person named in the indictment. $(i)$ - Death was unlawfully caused. $(ii)$ - (iii) Death was caused with malice aforethought. - (iv) The accused participated in the commission of the offence or was respondent for the death of the deceased.

See also, Uganda vs Nkojo Solomon H. C. Crim. Session No. 036 of 2016.

### (1) Death of the deceased.

Prosecution adduced evidence of the port-mortem report which was $[9]$ admitted in evidence under S.66 TIA as P. Exh.1. As per the postmortem report, the body of the deceased was identified by a one Mushabe, young brother to the deceased, as that of the deceased Prosecution witnesses; James Kuzaara (PW1), **Barigye Stephen.** brother of the deceased, Mawanda Karim (PW2), D/cpl Ntende Denis (PW3) and Cpl Sharif Isaac, a police sniffer dog handler, viewed the body of the deceased at the scene of the crime. The accused herself appear to had not contested this ingredient of the offence. In the premises, I find that this ingredient of the offence has been proved beyond reasonable doubt.

# (ii) Death was unlawfully caused.

- [10] It has been held that all homicides are unlawful unless excused in the order/sentence. of lawful execution circumstances; following accidental death or when caused during the course of self-defence or defence of property; Gusambuzi s/o Wesonga [1948] 15 EACA 65 and Uganda vs Okello [1992-1993] HCB 68. - [11] In the instant case, there is nothing suggesting that the death of the deceased fell under any of the above exceptions. The deceased was in the middle of the night ambushed while on his way home and fatally assaulted with infliction of multiple injuries on the head, upper limbs and the chest (see the post-mortem report - P. Exh.1). Such kind of death is a clear homicide which is unjustified and unlawful. I find this ingredient of the offence duly proved by the prosecution beyond reasonable doubt.

# (iii) Death was caused with malice aforethought.

[12] S.191 PCA defines malice aforethought as intentional killing of a human being or knowledge that the act or omission will result into death of a human being, see also Mugao & Anor vs R [1972] 1 E. A 543. As per the post-mortem report P. Exh.1, the deceased sustained extensive deep cut wounds on the head, bruises on the upper limbs, and the chest. The assailants must have had knowledge that the act of inflicting such injuries, especially on the head which is a vulnerable part of the body would cause death to the deceased (S.191 PCA). It is therefore my finding that in the circumstances of this case, malice aforethought has been amply proved by the prosecution beyond reasonable doubt.

- Participation of the accused person in the murder of the $(v)$ deceased. - [13] This is the most important ingredient of the offence considering the fact that the accused pleaded not guilty to the offence. Though under her rights under S.73 (2) TIA, she opted to keep quiet as her defence, the prosecution is still under a legal obligation to prove this ingredient of the offence beyond reasonable doubt. The accused's silence does not relieve the prosecution of the obligation to prove its case against her. - [14] In the instant case, the prosecution relied entirely on circumstantial evidence to prove that the accused person participated in the murder of the deceased since none of the witnesses, witnessed the murder. The circumstantial evidence is as follows: - Both Tandeka Geoffrey (PW6) and Ninsiima David (PW7) who are $(a)$ herdsmen of Rushagazi village, Nkooko sub-county, Kakumiro District, testified that the accused approached each of them respectively to recruit them to waylay the deceased and assault him or beat him to death because she was jilted about the deceased's intention to make his concubine a one Nuwasasira **Juliet,** his $2^{nd}$ wife. - James Kuzaara (PW1), a brother in law of the accused testified that $(b)$ on around $25/3/2021$ , the accused told him that he should tell the deceased to drop his other concubine Juliet Nuwasasira and if not, if anything happens in the future, nobody should blame her. According to him, he understood the accused's threats to mean that if the deceased refused to abandon getting Juliet as his wife, she would kill him. - Mawanda Karim (PW2), testified that the deceased himself used to $(c)$ tell him how he was always afraid of the accused whom she

suspected of intending to poison him because of the deceased's intention to marry another wife.

- Cpl Sharif Isaac (PW4), a police sniffer dog handler testified that $(e)$ when he introduced the sniffer dog, T/P/D 102 May to the body of the deceased, it picked the human scent and led him to the motor-cycle of the deceased which was parked opposite where the body of the deceased was lying, then followed the path and diverted to where a group of women who included the accused were seated and then proceeded to the home of the accused and or deceased and ended up in the sitting room. - [15] The law on circumstantial evidence is well settled, it was held in Amisi Dhatemwa alias Waibi vs Uganda, Crim. Appeal No. 023 of 1977 (CA) that;

"...circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence is capable of providing facts in issue quite accurately...it is trite law that circumstantial evidence must always be narrowly examined, only because evidence of this kind may be fabricated to cast suspicion on another. It is, therefore necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other coexisting circumstances which would weaken or destroy the inference. See: Teper v P. [1952] A. C 480 at p.489... The burden of proof in criminal cases is always upon the prosecution and a case based on a chain of circumstantial evidence is only as strong as its weakest link".

Taylor on evidence $11$ ^th edition, page 74 states that:

"The circumstances must be such as to produce moral certainty to the exclusion of every reasonable doubt".

- [16] As regards the jiltness of the accused arising from the planned introduction of the deceased's concubine Nuwasasira Juliet, appear to be what would be expected of every woman in the position of the accused. - [17] However, Tandeka Geoffrey (PW6) and Ninsiima David (PW7) testified that the accused approached them in around 2020 with the view to

recruit them into a striking force to hurt or do away with the deceased for his intended plans to marry a 2^nd wife, Juliet Nuwasasira. PW6 in particular stated further that he even relayed this information to the deceased's brother, Kuzaara James (PW1) and the deceased himself.

- [18] Then, PW1, a brother to the deceased stated in evidence that in 2021, the accused called him aside and told him to warn the deceased to abandon his plans to marry the said Juliet, his other concubine in the trading centre or else, if anything happens in the future, nobody should blame her. PW1 understood the accused's threats to mean that the accused intended to kill the deceased. PW1 also claimed that he reported the accused's threats to his mother, Scovia Mbaya and the deceased himself. - [19] To crown it all, it appears apparently clear that the above information regarding the threat to the deceased's life by his wife, the accused, was brought to the attention of the entire family and therefore, the threats were well known. - [20] Surprisingly, during the deceased's life time, neither the deceased's members of the family nor the deceased himself made any report regarding these threats to either police or the local authorities. It may be argued and or it may be understandable that it may not have been necessary to report these threats since this was a completely family matter resting on the deceased and or, probably, they felt that the accused was making empty threats, a trait of a jilted wife, but, even upon the horrendous murder of the deceased on the night of $1^{\mbox{\tiny st}}$ /2^nd of May 2021, none of them recalled and remembered to report the above daring threats to police at the commencement of investigations in the murder of the deceased. - [21] Police on the other hand, as per the evidence of Mawanda Karim (PW2), arrested a one Iga Bashir (PW2's brother), Birimumaso Richard and a one Kimenyi in connection with the murder of the deceased. Upon their arrest, they were taken to Kampala where they were accordingly detained. It was upon arrest of these people who included PW2's brother that **PW2** on 23/4/2022 went alone to Kibuli C. I. D. headquarters and made his $1^{st}$ statement i.e. after about 12 months

from the date of the murder of the deceased. It would appear that it was after his intervention that his brother Iga Bashir and the 2 others were released and the accused was instead arrested in connection with the death of her husband.

- [22] In my view, I find it extremely unsafe to rely on the evidence of PW1, PW2, PW6 and PW7 which though seemingly vital evidence was concealed from police or other local authorities but to be disclosed after about 1 year in a bid to rescue Iga Bashir, Birimumaso Richard and Kimenyi who had been arrested in connection with the murder of the deceased. Considering the evidence of PW2 who stated that the prosecution witnesses recorded their statements about 12 months from the death of the deceased and or 8-9 months after the release of his brother, Iga Bashir & 2 others, I find that PW1 lied to court when he claimed that he made his statement 3 days after the death of the deceased and disclosed the threats of the accused to the deceased. Indeed, all the witnesses admitted to had recorded their statements in 2022. - [23] The accused on the other hand calmly stayed in her home from the time her husband was murdered, she did not run away, until her arrest from her home in 2022. Her conduct in my view is consistent with innocence. The circumstantial evidence relied on by the prosecution has a likelihood of having been fabricated to cast suspicion on the accused because of her disapproval of her husband's intention to introduce and marry his known concubine, Nuwasasira Juliet. At best, the available circumstantial evidence rendered the accused merely a suspect but is not sufficient proof that she was the perpetrator of the alleged offences. - [24] As regards the evidence of the police sniffer dog, it has been held in Omondi & Anor vs R [1967] E. A 802 thus:

"But we think it proper to sound a note of warning about what, without undue levity, we may call the evidence of dogs. It is evidence which we think should be admitted with caution, and if admitted should be treated with great care...

But having received the evidence that the dog was, if we might so describe it, a reasonable reliable tracking machine, the court

must never forget that even a pack of hounds can change foxes and that this kind of evidence is quite obviously fallible".

In Wilson Kyakurugaha vs Uganda C. A. C. A. No. 51 of 2014, in regard to tracker (sniffer) dog evidence, it was held inter alia;

"Circumstances relating to the actual trailing must be demonstrated, preservation of the scene is crucial and the trace must not have become stale".

The court of appeal went ahead citing The state of Washington v Allen B. Loucks 98 Wn.2d 563 [Wash.1983] and quoted;

"Tracking dog evidence is not sufficient by itself to convict a criminal defendant. Corroborating evidence identifying the defendant as the perpetrator of the crime is required".

[25] Corroborative evidence was defined in the East African Court of Appeal in R. vs Manilal purohit [1949] 9 EACA 58 thus;

"...corroboration is some additional evidence rendering it probable that the evidence of the witness is true and it is reasonably safe to act upon it, that it must be independent evidence which affixed the accused by connecting him or tending to connect him with the crime confirming in some material particular, not only the evidence that the crime has been committed, but also that the accused committed it".

- [26] In the instant case, James Kuzaara (PW1), brother of the deceased testified that on $1/5/2021$ at around 2:00am the accused came and called him out of the house and told him that assailants killed his brother, the deceased. He rushed to the scene and the body of the deceased was lying along the path towards the deceased's place and many people were already at the scene. In cross-examination, he however changed and stated that he found only 2 people i.e. Polinari and **Mushabe** at the scene. - [27] According to **Cpl Sharif Isaac** (PW4), the police sniffer dog handler, he introduced the dog to the scene at around 9-10am when the scene of crime had already been cordoned off and it traced the scent of the deceased to the house of the accused implying that whoever was last with the deceased entered the deceased's house. D/cpl Ntende Denis

(PW3) testified that he reached the scene at around 3:00am but a big crowd of people had already gathered around the scene but nevertheless he cordoned it off.

- [28] Clearly, from the above evidence, before the introduction of the police sniffer dog, by 2:00am, the scene had already been tempered with. The likely implication is that whoever brought the information of the discovery of the body of the deceased along the path to his place to the accused who in turn went to alert PW1 may have been responsible for the dog's behaviour tracing the scent to the accused's house. In any case, the big crowd PW3 found at the scene, could have been moving up and down from the accused's home, the house of the deceased. As per the evidence of PW2, who moved along with the dog handler (PW4) and the dog, though the accused was seated with the women behind the anthill at the scene of the crime, the dog did not settle on her as one of the assailants. As a result, nobody was arrested for the murder of the deceased that day. - [29] Besides, I find that though the police dog having tipped the investigators of the possibility of the assailants having found their way to the deceased's house, no search was conducted therein or the surrounding areas for any other clue thus police did not make full use of the police dog. - [30] In the premises above, I do find that the evidence above regarding the role the police sniffer dog played cannot be a basis of any conviction and or be said to corroborate or be corroborated by any other evidence. At its best, it is worthless. - [31] In conclusion, I find that the prosecution has not proved beyond reasonable doubt that the accused participated in the commission of the alleged offence or that she was responsible for the death of the deceased. She is in the premises found not guilty to the offence and acquitted accordingly.

# \* AGGRAVATED ROBBERY (COUNT.2)

- [32] As regards Count 2, the prosecution can only secure a conviction upon proving beyond reasonable doubt the following ingredients of the offence of Aggravated Robbery: - Theft of property belonging to the victim/complainant. $(i)$ - Use of violence or thereat of use of violence during the theft. $(ii)$ - (iii) Possession of a deadly weapon during the theft. - (iv) Participation of the accused in the commission of the offence.

See Uganda vs Aryampa Jackson & ors, Masindi H. C. Crim. Session No. 166 of 2012.

[33] In the instant case, Mawanda Karim (PW2) testified on this count thus: "In the cattle market of Kisita, the deceased had been with Mushabe, his young brother, "Luhoozi" who has just testified as PW1 and they are the ones who told me that the deceased had 2.5m/= on his way home which was robbed by the assailants. He also used to carry a small "Katorch" phone which according to Telecom Experts revealed that upon the phone being declared lost, it was found to had been under use of the accused".

No evidence was adduced by the prosecution to prove the existence of the above items allegedly stolen from the deceased. Mushabe did not testify in court and PW1 did not allude to the existence of these items with the deceased during his testimony. No evidence was led by the prosecution to prove that upon the demise of the deceased, his wife, the accused, was in use of the deceased's phone.

[34] As a result of the above, in agreement with the gentlemen assessors, I do find that the prosecution has not proved Count II against the accused. She is found not guilty of the offence of Aggravated Robbery and is acquitted of the same and is eventually discharged of the entire case accordingly.

Dated at Hoima this $31^st$ day of **January**, 2025.

Byaruhanga Jesse Rugyema **Judge**