[2025] UGHC 43


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA CRIMINAL SESSION CASE NO 344 OF 2024**

5 **[DPP NO: KIRUHURA-CO-801/2022, POLICE NO: SANGA CRB 089/2022]**

## **UGANDA VS NATUKUNDA JOVULET & TIBEBUZA IBRA**

**BEFORE**: Hon. Justice Nshimye Allan Paul. M.

## **JUDGMENT**

#### **REPRESENTATION**

State Attorney Jacob Nahurira for The Office of the Director of Public Prosecutions and Adv Allen Kabahenda for the accused persons on state brief.

# **INTRODUCTION.**

The accused **NATUKUNDA JOVULET & TIBEBUZA IBRA** were indicted on the charge of **Murder** Contrary to section **171 & 172** of The Penal Code Act. The particulars of the offence are that;

# **NATUKUNDA JOVULET and TIBEBUZA IBRA on the 13th** 20 **day of May 2022 at Kibega Cell along Kibega – Mbarara road in the Kiruhura district assaulted and burnt RUKUNDO JUDITH that caused her death on 29th day of May 2022.**

The accused persons took plea on 14 October 2024, and they pleaded not guilty.

## 25 **BURDEN AND STANDARD OF PROOF.**

It is a principle of law that in criminal cases, the Prosecution has a burden of proving all the ingredients of the offence (**Nandudu Grace & anor Vs Uganda Supreme Court Criminal Appeal No 4 Of 2009, section 101, 102 & 103 OF THE EVIDENCE ACT CAP 8**). In Criminal cases the standard of proof that is required is to prove all the ingredients beyond reasonable doubt (**See Miller Vs Minster of Pensions [1947] 1 ALLER 372, Uganda vs Monday Wilson high court Criminal case 22 of 2017**)

## **PRE-HEARING**

- 5 The prosecution and defence during the pre-hearing agreed on some facts under section 67 of the Trial on Indictments Act. The documents that were agreed upon by both parties were exhibited and made part of the evidence, they are: - **1.** Police Form 24, a medical examination of a person accused of serious crime. The form was exhibited as **PEX1**, In the form a medical officer **(Dr Zirabamuzaale**) confirmed on **8 th** 10 **July 2022** that accused number 1 (**Natukunda Jovulet**) was of normal mental condition to stand trial. - **2.** Police Form 24, a medical examination of a person accused of serious crime. The form was exhibited as **PEX2**, In the form a medical officer confirmed on **4 th July 2022** that accused number 2 (**Tibebuza Ibra**) was of normal mental condition to 15 stand trial. - **3.** Police Form 48B, a postmortem report. The form was exhibited as **PEX3**, In the form a medical officer (**Dr Senyonjo)** confirmed on **02nd June 2022** that the body of **Rukundo Judith** was identified by **Muhumuza Abel**. The cause of death was stated as **severe extensive burns and severe sepsis.**

#### 20 **WITNESSES**

The prosecution called four witnesses, **Pw1 Dr Zirabamuzaale, PW2 Dr Senyonjo, PW3 Jennifer Kyomugisha, PW4 No 60956 Det Constable Adokorach Esther.** The defence produced two witnesses, the accused 2, **DW1 Tibebuza Ibra** and Accused 1, **Dw2 Natukunda Jovulet**.

#### 25 **ASSESSORS' OPINION**

The assessors gave a written joint opinion that was put on court record. They recommended to court that Accused no 1 be convicted, while Accused number 2 be acquitted.

#### 30 **SUBMISSIONS**

The lawyers did not make submissions when given an opportunity to do so, the court will consider the evidence on the court record.

#### **DETERMINATION**

35 It is a principle of law that the prosecution has a duty to prove all the ingredients of the offences as is stipulated in the law in section **101, 102 & 103 OF THE EVIDENCE** **ACT CAP 8** and confirmed in case law in **NANDUDU GRACE & ANOR VS UGANDA (SUPREME COURT CRIMINAL APPEAL NO 4 OF 2009) [2010] UGSC 43.**

The question for determination is whether the prosecution has proved all the 5 ingredients of the offence of murder beyond reasonable doubt against the accused person. In **MATOVU FRANK & ANOR VS UGANDA (COA CRIMINAL APPEAL NO. 111 OF 2OI8) 2022 UGCA 268** the ingredients of the offence of murder were stated as;

- 1**.** Death of a human being; - 2. The death of the deceased was caused unlawfully. - 10 3. The death of the deceased was caused with a malice aforethought. - 4. The accused participated in causing the death of the deceased**.**

#### **Ingredient 1**

Death may be proved by production of a postmortem report or evidence of witnesses 15 who state that they knew the deceased and attended the burial or saw the dead body. (*Uganda v Endrio & 3 Ors High Court Criminal Session 172 of 2016).* Police Form 48B, a postmortem report, that was exhibited as **PEX3**, confirms the death, since the body of **Rukundo Judith** was examined by a doctor. The postmortem report confirmsthe death of a Human being, which is a requirement to prove ingredient 1 of death of a human 20 being.

#### **Ingredient 2**

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, Uganda Vs Bosco Okello [1992-* 25 *93] HCB 68*). The Police Form 48B, a postmortem report, that was exhibited as **PEX3**, confirms the **cause of death to be due to severe extensive burns and severe sepsis.**

I therefore conclude that the homicide was neither authorized by law nor accidental, yet the law presumes any homicide (the killing of a human being by another) to be unlawful (see R v. Gusambizi s/o Wesonga (1948)15 EACA 65, Uganda Vs Bosco Okello 30 [1992-93] HCB 68). Therefore based on the postmortem report, that was exhibited as

**PEX3** , the prosecution proved ingredient number 2 that the death was unlawful**.**

#### **Ingredient 3**

Page **3** of **8** Ingredient 3 requires the prosecution to prove that the death of the deceased was 35 caused with a malice aforethought. Malice aforethought is a mental element which can be established from the surrounding circumstances, the parts of the body injured

and the nature of the injuries (see *Uganda Vs Bosco Okello [1992-93] HCB 68*). The Police Form 48B, a postmortem report, that was exhibited as **PEX3**, confirms that the **cause of death to be due to severe extensive burns and severe sepsis.** This resulted into death, thus it is a homicide.

5 I find that the mental element of malice afore thought is proved, from the postmortem report. It is reported in the postmortem report that the deceased suffered extensive burns covering the face, trunk, anterior legs and vagina. These became septic resulting to death. The burning of extensive body parts of person is a serious matter that shows intention to cause death. I therefore find that ingredient number 3 was proved.

#### **Ingredient 4**

The fourth ingredient that the prosecution is duty bound to prove relates to participation of the accused. I will summarize the evidence of on the court record on this matter.

15 A. Pw3 Jennifer Kyomugisha testified that the deceased called Rukundo Judith was her daughter and was burnt. She testified that the deceased left her home with a 5-month baby having been taken by Ibra (A2) to get a job. She stated that she got information the daughter had been burnt, she then went and looked after her while in Masaka Hospital where she finally died. She pointed out Ibra in the 20 court, stating that he is from their village.

PW3 testified that she asked her deceased what happened, and the deceased told her that it was Ibra (A2) who did it and they did it when they were removing the child from her that they first hit her on the head. During cross-examination, 25 she emphasized that it was her daughter (deceased) that told her, she added that the deceased told her when she seeing and understanding.

B. PW4 No 60956 DET constable Adokorach Esther testified that on 14th May 2022 she picked the deceased from Sanga police station and took her to Lyantonde 30 hospital. On the way she talked to her, that she stated that she is called Rukundo Judith and had a baby called Matovu Rayan. That the deceased told her that on 13th May 2022 Ibra (A2) who is from her village got her to work as a maid. That on the way, Jovulet (A1) told her to escort her to the bush to ease herself. That, when she escorted her to the bush, they hit her on the head with a stone, poured 35 on her fuel and lit her on fire and they took her baby. During cross-examination, she confirmed that it was the deceased that told her. She stated that the deceased identified Ibra (A2) as the one who got her from her village and Jovulet (A1) as the lady that was urinating.

The prosecution did not have any witness that witnessed the burning of the deceased

5 as such the prosecution is basing on circumstantial evidence and a dying declaration of the deceased.

The defence evidence comprised of evidence that was not oath by Jouvlet (A1) and a evidence on oath by Ibra (A2).

Dw1 Tibebuza Ibra (A2) testified on oath, he denied the charges stating that Jovulet (A1) asked her to get a maid. He brought the deceased (Rukundo Judith) to work as a maid for Jovulet(A1). That the deceased had a baby with her , that after connecting Jovulet with the deceased he left them negotiating on salary 15 then he left.

DW2 Natukunda Jovulet made a statement without taking oath. She stated that Ibra (A2) brought the deceased to work as a maid and they met at the market. That the deceased had a baby with her. That the deceased stated that she 20 wanted Uganda shillings 200,000/= but she wanted to pay her Uganda shillings 70,000/=, so they disagreed and she left. She denied that Ibra left her with the maid.

It is trite that where a case is depending exclusively upon circumstantial evidence, the 25 Court must, before deciding upon 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 guilt*" (*See the decision of the Court of Appeal for East Africa in Simmon Musoke Vs. R (1958) EA 715).*

In this case the evidence of the prosecution that is admitted by the accused includes;

- 30 1. The fact that Ibra (A2) got the deceased from her Village and took her to Jouvlet (A1) to work as a maid - 2. That at one time the three of them, that is Jovulet (A1), Ibra(A2) and Judith (deceased) all met in one place at the market, as Jovulet (A1) and Judith (A2) were negotiating the salary to work as a maid.

3. That Judith the deceased, had a baby with her when she met with both accused.

The above evidence that is also admitted by the accused place the accused in proximity with the deceased on the fateful day. What is contested is what happened after the meeting in the market. A1 says she left with the deceased with A2, while A2 also states

- 5 he left the deceased with A1. The alternative evidence in regard to what happened after the market meeting is in the evidence of **PW3 Jennifer Kyomugisha,** and **PW4 No 60956 Det Constable Adokorach Esther** who put forward what the deceased told them before she died. - It is trite that a dying declaration made by the deceased as to the cause of his or her 10 death can be relevant as provided in **SECTION 30 OF THE EVIDENCE ACT CAP 8**, and it can lead to conviction as was stated by the Supreme Court in **MIBULO EDWARD vs UGANDA 1995 UGSC 17.**

#### **SECTION 30 (a) OF THE EVIDENCE ACT CAP 8** provides that;

*"30. Cases in which statement of relevant fact by person who is dead or cannot be* 15 *found, etc. is relevant.*

*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* 20 *relevant facts in the following cases-*

*(a) 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* 25 *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"*

# The supreme court in **TINDIGWIHURA MBAHE V. UGANDA 1987 UGSC 9** quoted in **MIBULO EDWARD vs UGANDA 1995 UGSC 17 stated**

30 *"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* 5 *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 sorely on* 10 *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"*

The supreme court advised that a dying declaration must be received with caution because the deceased cannot be cross examined, it is also key to consider the time of 15 the attack and possibility of mistaken identification of the accused.

The evidence of the accused on court record shows that at one time Jovulet (A1), Ibra(A2) and Judith (deceased) all met in one place at the market, as Jovulet (A1) and Judith (deceased) were negotiating the salary to work as a maid. It is also not in question from the evidence on record that Jovulet (A1), Ibra(A2) and Judith (deceased) 20 were all coming from the same village, they knew each other and even Pw3 Jennifer Kyomugisha the mother of the deceased testified that the accused were from the same village as the deceased. This shows that the possibility of mistaken identity is very negligible.

In the dying declarations of the deceased given independently to both Pw3 Jennifer 25 Kyomugisha and PW4 No 60956 DET constable Adokorach Esther, the deceased states that she was with A1 and A2, they stopped on the road, and A1 (Jovulet) requested to go to the bush to urinate and asked the deceased to escort her. When she reached the bush, she was hit on the head and doused with petrol and burnt. In her dying declaration contained in the evidence of both Pw3 Jennifer Kyomugisha and PW4 No 30 60956 DET constable Adokorach Esther, the deceased identified the accused persons as the people that assaulted her and set her on fire.

Page **7** of **8** In my analysis, the evidence on the court record puts the accused and deceased with in proximity, the three knew each other very well as village mates, accused no 2 transported her from the village to bring her to Accused no 1 to work as a maid and 35 the attack was in a bush where it was only the accused persons that were with the

deceased. I therefore, based on the above analysis to believe in the dying declarations of the deceased because they were independently made to two different people. It is also corroborated by the fact that the accused admits in their evidence that accused no 2 transported the deceased from the village to bring her to Accused no1 to work as a maid.

$\mathsf{S}$

I find that the evidence on the court record points to one hypothesis of the guilt of the accused persons. It is the accused persons that attacked the deceased after luring her with a job to work as a maid. I find that the 4th ingredient regarding the participation of the accused persons is proved.

- The accessors gave a written joint opinion wherein they recommended to court that 10 Accused number 1 be convicted, while Accused number 2 be acquitted. I take their recommendation in regard that Accused number 1 be convicted, but I don not take their recommendation in regards to Accused number 2 because they did not consider the dying declarations of the deceased, especially where she identified accused no 2 as one of the assailants, who committed the attack and took her baby whose 15 - whereabouts is not known to this day.

The prosecution has proved all the four ingredients of the offence of murder that they are duty bound to prove, to lead to the conviction of the accused persons. In the circumstances I convict NATUKUNDA JOVULET and TIBEBUZA IBRA of the charge of murder of **RUKUNDO JUDITH contrary to section 171 & 172 of The Penal Code Act.**

LUSTERI

NSHIMYE ALLAN PAUL M. **JUDGE** 30-01-2025

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# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA CRIMINAL SESSION CASE NO 344 OF 2024** 5 **[DPP NO: KIRUHURA-CO-801/2022, POLICE NO: SANGA CRB 089/2022]**

## **UGANDA VS NATUKUNDA JOVULET & TIBEBUZA IBRA**

**BEFORE**: Hon. Justice Nshimye Allan Paul. M.

#### **SENTENCING OF NATUKUNDA JOVULET & TIBEBUZA IBRA**

#### **BACKGROUND**

**NATUKUNDA JOVULET & TIBEBUZA IBRA** were on 30th January 2025 convicted of the 15 offence of murder of **RUKUNDO JUDITH** contrary to section 171 & 172 of The Penal Code Act.

I have considered the aggravating and mitigating factors before sentencing.

#### 20 **SENTENCE**

In sentencing it is important to consider the following;

Nature of the offence, whether the case went to a full trial or not, the aggravating factors put forward by the state, mitigating factors put forward in 25 favor of the convict and the need for consistency in sentencing as can be inferred from appeal decisions of the higher hierarchal courts.

I will now consider sentences as prescribed by the law or given by courts of law in similar matters. These include;

- 30 1. In **WASAJA FRED VS UGANDA COA CRIMINAL APPEAL NO.49 OF 2O11**. The Court of appeal found a sentence of 35 years' imprisonment would meet the ends of justice in a murder conviction. - 2. In **BEFEHO IDDI VS UGANDA SC CRIMINAL APPEAL 15 OF 2017**. The supreme court upheld a sentence of 30 years on a conviction of murder. - 35 3. In **NDYOMUGENYI VS. UGANDA, SUPREME COURT CRIMINAL APPEAL NO.57 OF 2016,** the Supreme Court confirmed a sentence of 32 years' imprisonment for murder. - 4. In **MPAGI GODFREY VS. UGANDA SUPREME COURT CRIMINAL APPEAL NO 63 OF 2015,** the Supreme Court confirmed a sentence of 34 years for Murder.

In this case NATUKUNDA JOVULET & TIBEBUZA IBRA were convicted of the offence of murder of **RUKUNDO JUDITH**.

I have also taken note of the constitution (sentencing Guidelines for courts of Judicature) (practice directions) of 2013 that provide for a sentencing range for Murder $\mathsf{S}$ to be from 30 years to death.

I also note that the convicts are first-time offenders, as such it would not be reasonable to give him the maximum sentence of death. I have considered the sentences given by the Court of Appeal and the Supreme Court in the cases highlighted above where $10$ the convicts were also convicted of murder. I have also considered that the late RUKUNDO JUDITH, a mother with a baby was lured with the promise of a job as a maid, she was lured into a bush, attacked and doused with petrol and burnt. Her baby of a few months was taken and has never been seen to this day.

I sentence the convicts (NATUKUNDA JOVULET & TIBEBUZA IBRA) to 40 years from the date of conviction, I will deduct the period spent on remand of 2 years, 6 months and 10 days for both NATUKUNDA JOVULET & TIBEBUZA IBRA as of the date of conviction, therefore NATUKUNDA JOVULET & TIBEBUZA IBRA will each serve a sentence of 37 years, 5 months and 20 days Starting from the date of conviction on 30- $01 - 2025$ .

The convicts are informed of their right of appeal against the conviction and sentence within 14 days from today.

**NSHIMYE ALLAN PAUL M.** JUDGE 11.02.2025

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