[2025] UGHC 65

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA CRIMINAL SESSION CASE NO.0168 OF 2024

<table>

UGANDA PROSECUTOR

**VERSUS**

**1. NAMUBIRU HOPE** 2. KALEMA EMMANUEL 3. NAKALEMA CHRISTINE <table> <tbody>

4. SSENYONDO WILLIAM ALIAS NYONDO .................................... 5. SSEKIDDE RONALD ALIAS KYALUWENDA 6. MONDAY EDWARD MUZAMIRU

## **Introduction**

Namubiru Hope, Kalema Emmanuel, Nakalema Christine Ssenyondo William Alias Nyondo, Ronald Alias Kyaluwenda and Monday Edward Muzamiru (hereinafter referred as accused persons No.1, No.2, No.3 No.4, No.5 and No.6) in this case are jointly indicted with the offence of Murder contrary to sections 188 and 189 of the Penal Code Act.

It is alleged that the accused persons and others still at large, on the $8^th$ day of May 2023 at Kyere East Villager in the Kyankwanzi District with malice aforethought caused the death of one Byakatonda Tito. (hereinafter referred to as the deceased).

#### Representation.

Mr. Ariong Steven of the Office of Director of Public Prosecutions Kiboga represented the prosecution while Ms Kihumuro Sheila represented the accused persons.

/ Mann

$\mathbf{1}$

When the matter came up for plea taking, A.1 pleaded guilty, was convicted and remained pending sentence. Hearing proceeded in respect of A.2, A.3, A4, A5 and $A.6$ .

## **Burden and standard of proof**

In all criminal cases the prosecution has the burden of proving the case against each accused person beyond reasonable doubt. The burden does not shift to the accused persons and the accused may only be convicted on the strength of the prosecution case and not because of weaknesses in their respective defences. See: Ssekitoleko V Uganda [1967] EA 531. The accused do not have any obligation to prove their innocence.

By their respective pleas of not guilty, A2, A3, A4, A5 and A6 put in issue each and every essential ingredient of the offence of murder with which they are charged and the prosecution had the onus to prove each of the ingredients beyond reasonable doubt before it could secure their conviction. Proof beyond reasonable doubt though does not mean proof beyond any shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent. See: Miller V Minister of Pensions [1947] 2 ALL ER 372.

The prosecution led evidence of seven witnesses namely; No. 48073 Detective Corporal Okello Sam Akunu (PW1), Mwikirize Melek (PW2), Mukwaya Elisa PW3, Tibanjagaliza Jackline PW4, Barnad Kakinda PW5, Detective Sergeant No.42881 Bwambale Godfrey PW6 and Sebalunzi Leosan PW7.

$-$ *Man*^'

All the five accused persons gave sworn evidence and called no witnesses in their defence.

#### **Ingredients of the offence of murder**

For the accused persons to be convicted of murder in this case, the prosecution must prove each of the following essential ingredients beyond reasonable doubt:

- 1. That death of a human being occurred. - 2. That the death was caused by some unlawful act. - 3. That the unlawful act was actuated by malice aforethought; and - 4. That it was the accused who caused the death.

# 1. Whether there was death of a human being.

Death is the end of someone's life. It can be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body.

In the instant case PW1 Mwikirize Melek some medical personnel examined the body of the deceased and made o postmortem report dated $11/05/2023$ which was admitted in evidence as exhibit P.3.

PW1 a Scenes of Crime officer also confirmed visiting the scene of crime in and having seen the deceased's body. He stated that photographs of the deceased body were taken and these were admitted in evidence as exhibit $P.2$

PW3 a chairman Local council one of the area participated in the search for the deceased body and confirmed that the deceased died.

PW4 and PW5 the neighbors of the deceased stated that the deceased died. PW6 stated that he participated in the recovery of the deceased's body.

Warm'

$\mathbf{3}$

In their respective defences, the accused persons did not deny the death Byakatonda Tito.

It is my finding that the prosecution has proved beyond reasonable doubt that Byakatonda Tito died.

#### **2. Whether the death was caused by some unlawful act.**

The prosecution has the onus to prove that the death of the deceased was unlawfully caused.

It is the law that any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law. See R V Gusambizi s/o Wesonga (1948) 15 EACA 65.

PW2 who examined the body of the deceased and made a postmortem report stated that the cause of death was asphyxia following strangulation and broken neck.

The accused persons in their defence never adduced any evidence to prove otherwise.

There is no lawful justification for the acts that caused the death of the deceased. The prosecution evidence as a whole has established that the deceased's death was a homicide.

The prosecution has therefore proved beyond reasonable doubt that the deceased's death was unlawfully caused.

1 Mar

## **3. Whether the act was actuated by malice aforethought.**

Malice aforethought is defined by section 174 of the Penal Code Act as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person.

The question is whether whoever strangled the deceased intended to cause death or knew that the manner and degree of strangulation would probably cause death. See: R V Tubere s/o Ochen (1945) 12 EACA 63.

In order to determine whether there was an intention to cause death or that the person knew that his or her act will probably cause death, the court considers the weapon used, the part of the body targeted, the degree of injury and the conduct of the accused before and after the act. See: Uganda

V Oromcam Stephen and Ors HCC Session case no. 0093 of 2015.

In this case, the post mortem report shows that the deceased was strangled leading to breaking of the neck and thus resulting into death.

The neck is a very sensitive part of the body and strangulation is usually intended to cause death.

In the case Uganda versus Kamuhanda Emmanuel Criminal Session Case **No.0024 of 2012 at Fort portal unreported** this court made a finding which I associate myself that very sensitive parts of the body like the neck and head were aimed at and that the accused intended to kill.

In their respective defences the accused persons did not challenge the prosecution evidence on the assailant having intended to cause the death of the deceased with malice aforethought.

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I therefore, find that the prosecution has proved beyond reasonable doubt that the deceased's death was a result of malice aforethought.

## 4. Whether it is the accused persons who caused the death.

Before court to concludes on who caused the death of the deceased there must be credible direct or circumstantial evidence placing the accused persons before court at the scene of the crime as active participants in the commission of the offence.

A2 to A6 denied any participation in causing the death of the deceased. They all raised defenses of alibi.

By setting up the defense of alibi, the accused does not assume the burden of proving the same. The duty lies on the prosecution to disprove a defense of alibi and place the accused persons at the scene of crime as the perpetrators of the offence. See: Festo Androa Asenua and another V Uganda, S. C. Criminal Appeal No.1 of 1998.

In this case, none of the prosecution witnesses saw the accused persons committing the offence. The prosecution relied on circumstantial evidence. The Supreme Court in **Mabira Siragi V Uganda SCCA No 07/2004** held that:

"... in a case depending exclusively on circumstantial evidence the judge must find before deciding upon a conviction that the exculpatory facts where incompatible with the innocence of the accused and incapable upon any other reasonable hypothesis than that of guilt

According to P.3 Mukwaya Elisana he was the chairperson of Kyere Village in Kyankwanzi District where the deceased and the accused persons were residents save A6.

Wan That on $10/05/2023$ while at home he received a call from Sebulunzi the Chairperson of Local Council 111 who informed him that one Tito Byakatonda had gone missing.

That he went to Byakatonda's place to find out what had happened. That he found there the deceased's wife Hope Namubiru and his children Christine Nakalaema, Emma Kalema and other young ones. That he asked Hope Namubiru about the disappearance of the deceased and she asked him if he didn't know that the deceased normally travels and never returns. That she told him that the previous day he travelled and never returned. He stated that the deceased had previously informed him how his life was in danger and how one time he survived being murdered.

That he went with the deceased's wife and one Emma the deceased's son to Gayaza Police Station to report. That the two were detained. That he went back and they searched for the body until $11/05/2023$ when they located the body.

That later on A4 and A5 in his presence explained and demonstrated to police how they were hired to move the body from the home of the deceased to where it was found.

PW4 Tibanjagaliza Jackeline testified that on 9/05/2023 she was coming from home going to the garden when she picked a phone on the way. That she called the last dialed number on the phone and it was picked by a lady who said that she had been calling the owner who was not picking. That she took the phone to the Chairman of the area. That she was later told that the phone belonged to one Tito the deceased.

Main

$\overline{7}$

PW1 No.48073 Detective Corporal Okello Sam Akun testified that he was present when A4 and A5 demonstrated to them how they were hired and how they carried the body of the deceased from the deceased's home to the place where it was found. That he drew a sketch plan of their demonstration. The same was exhibited as P.1.

PW6 No.42881 Detective Sergeant Bwambale Godfrey stated that Namubiru Hope admitted participation in the murder of the deceased. That she hired Senyondo and another to execute the murder. That A4 Senyondo and A5 Sekidde were arrested, that they admitted and took them through a reconstruction of the scene of crime. That they claimed that they didn't participate in the murder of the deceased but only disposal of the body.

In his defence DW1 Kalema Emmanuel (A2) stated that on his way back home he met his mother A1 with the Chairman Local Council one. That his mother asked him to take them on his boda to the Sub-county headquarters. That he took them and he was arrested from there on allegation that he participated in the murder of his father.

He denied participating in the murder of the deceased.

DW2 Nakalema Christine (A3) stated that on $8/05/2023$ she was at home when her husband called to find him in Kakumiro and she went there and returned on $9/05/2023$ . That later on her mother and the chairman of the area went to report. That later on her mother called her and told her that she had been arrested. That she later on equally was arrested on allegation that she participated in the murder of her father. She denied participation.

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DW3 Ssenyondo William A4 testified that on 8/05/2023 he went to buy maize in Kyamulelama. That on $18/05/2023$ he was arrested over the death of the deceased. He denied knowledge of the deceased or carrying his body. DW4 Ssekidde Ronald A^{$\frac{3}{5}$} that on 17/05/2023 he was looking for what to eat and he was given food. That he went for a rally in Kyanga Town from where he was arrested on $18/05/20203$ on allegation that he was idle and disorderly. He denied participating in killing or carrying the deceased.

DW5 Monday Edward A6 stated that he was arrested on $11/05/2023$ from the boda boda stage. That he was told that he had killed someone. He denied killing the deceased.

DW6 Harriet Nabukenya testified that A5 is her son. That on $17/05/2023$ left for a show. That he was suspected to have participated in a murder.

I have looked at the circumstantial evidence adduced by the prosecution about the deceased being found dead and A1 admitting participation in the murder. A2 and A3 are children of A1 and the deceased.

Despite A1 not disclosing how she executed the murder she admitted to have carried out, it is my considered position that the circumstances reveal that A2 and A3 helped her in executing the murder and hence they both participated in causing the death of the deceased. A2 and A3 who lived with A1 and the deceased. They never reported the disappearance of the deceased until they were arrested. Despite their claim that they didn't know of his disappearance I do not believe them. Having lived in the same house with A1 who admitted the crime there is no way they could not know the incident. I find that the act of not reporting the disappearance of their father was not an act of innocent people.

Main^\*

The evidence of the prosecution witnesses point to the fact that the A4 and A5 did not participate in the murder but participated in the carrying and disposal of the deceased's body. The prosecution evidence of reconstruction of the scene of crime contained in exhibit P.1 guided by A4 and A5 proved the participation of A4 and A5 in act after after the murder.

Based on the above findings, it is my conclusion that the accused persons No.1, No.2, and No.3 are liable individually and collectively under the doctrine of common intention of causing the death of the deceased.

Section 20 of The Penal Code Act provides that;

"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 offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence."

In order to render the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence. see: Uganda V Wanyama Ivan and 3 Ors HC Crim. Session no. 0351 of 2020.

In the instant case all accused persons had a common intention of causing the death of the deceased which was successfully executed on $08/05/2023$ . Based on the above evidence, I find that the prosecution has proved that A2 and A3 participated in causing death of the deceased.

man / Main^e

The assessors advised me to find A2, A4 and A5 guilty of the offence charged and to convict each one of them accordingly. And that I find A3 and A6 not guilty of the offence and acquit each one of them

I do agree with the opinion of the assessors that A2 participated in the murder and I convict him accordingly of the offence murder contrary to sections 188 and 189 of the Penal Code Act.

On the contrary the assessors advised me to find that A3 did not participate in the commission of the offence but am convinced that she participated together with her mother A1 and her brother A2 since she admits she had come from Iganga District and was at their home during time the crime committed. I convict her accordingly.

As for A6 the assessors advised me to find him not guilty of the offence and I do concur with their opinion and acquit him. There was no evidence adduced at all to prove A6's participation in the commission of the offence. The lady and gentleman assessors 'opinion was that A4 and A5 participated in committing the offence. I do find that the evidence adduced does not prove their participation in the commission of the crime. The evidence adduced rather proved that A4 and A5 participated in carrying the body of the deceased from the scene of crime to where it was recovered from. I therefore do not concur with the assessor's opinion that A4 and A5 participated in the murder of the deceased but rather in the act of being accessory after the murder. They carried the deceased's body from the scene to where it was recovered from.

wan

I therefore find A4 and A5 guilty of a minor and cognate offence of being $206$ accessory after the fact of murder contrary to Section 1999 of the Penal Code Act and convict each one of them accordingly.

A6 is acquitted and set free unless held on other lawful charges.

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KÄREMANI JAMSON. K **JUDGE** 22/01/2025