[2009] UGHC 248

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT TUWERO HrGH COURT CRTMtNAL SESSTON CASE NO O429|2OO7

UGANDA PROSECUTOR

VERSUS

BEFORE: HON. JUSTICE BENJAMIN KABIITO. 9)7\i"

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## JUDGEMENT

The accused, Nkonge Robert, is indicted for murder c/s 188 & 189 of the penal Code Act. lt is alleged that the accused, Nkonge Robert, and another still at large, on the 8th day of November 2006, at Namasujju village, Kasangombe sub-county, in the Nakaseke District, murdered one, Nalubale Topista.

Upon arraignment, the accused pleaded not guilty to the charge and by so doing all the ingredients of the offence of murder are in issue and the prosecution assumes the burden of proof, of all ingredients of the said offence.

It is our law generally, that the burden of proof of a criminal offence rests on the prosecution and remains so throughout the trial. lt is only in a few instances that the burden shifts to the accused in specific instances that are expressly provided by statute. The charge of murder is not however, one of such exceptions, hence the duty is on the prosecution to discharge the burden of proof, beyond reasonable doubt.

The prosecution is expected to prove all the ingredients of the offence of murder beyond reasonable doubt. This standard requires that at the conclusion of the

The prosecution is expected to prove all the ingredients of the offence of murder beyond reasonable doubt. This standard requires that at the conclusion of the trial of an accused person, any doubt that remains is resolved in favour of the accused.

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The accused person pleaded an alibi in his defence to the charges.

The general principal of law to a defense of an alibi is that an accused who puts forward an alibi as an answer to a criminal charge, does not thereby assume the burden of proving the defence;the burden of proving his guilt by disproving the alibi, or negativing it, lies and remains on the prosecution throughout the trial.(See:Sekitoleko vs. Uganda[1957]EA 531,Uganda vs. Sebyala[19671EA2041.

It is our trite law that where an accused puts forward an alibi in answer to ^a charge, he does not assume the burden of proving it.

The ingredients of the offence of murder are;

- a) The fact of death.-ln this case, that Nalubale Teopista is dead. - b) The death was unlawful. ln this case, that the death of Nalubale Teopista was unlawfully caused. - c) That the death of the deceased person was caused by malice aforethought. ln this case, that it was intended that death of Nalubale Teopista should occur. - d) That it was the accused person who was responsible for the death.-ln this case, that the accused, Nkonge Robert, was responsible for the death of Nalubale Teopista, with another still at large.

The first issue to address is whether Nalubale Teopista is dead? The prosecution evidence on this issue, largely rests on PW1, namely, Dr Kisitu Kyengera. According to the post mortem report, Pex No 1, which was admitted in evidence, on the SlLt/2O06, he examined the body of an adult female of the apparent age of 43 years. The body ofthe deceased was identified to him by one ssenyonjo Donozio, as that of Jaggwe Teopista. Externally, the body had the following injuries; deep cut wound on the neck anterior, measuring 5x 2 inches, part of the trachea and neck vessels out and with maggots. The body also had deep cut wounds on the

palms of the hands, bilaterally measuring 3x1/2 inches. ln his opinion, the cause of death and reason for the same was due to severe hemorrhage due to cut wounds inflicted on the deceased.

It is the evidence of PW 3(5PC Sewaka), PW4 (D/Cpl Amonyi), pW5 (Bbosa Mbusera), PW6 (Florence Nalwanga) and PW7 (Senyonjo Donozio) that the deceased, Teopista Nalubale Jaggwa, is dead.

The defense did not contest the fact of death of the deceased.

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ln agreement with the opinion of the Gentlemen Assessors find that the fact of O death of the deceased, Teopista Nalubale Jaggwa, has been proved by the prosecution beyond reasonable doubt.

The second issue to address is whether the death of the deceased was unlav'rfully caused?

ln this regard, death is always presumed to be unlawful unless caused by accident, or is excusable in defense of property or person or by accident. ln this case, it is the evidence of PW5, Bbosa Mbusera that point to the circumstances of the violent death of the deceased. The deceased, while struggling on the ground with her legs restrained, was cut on the neck with a panga. The deceased also had deep cut wounds on both ofthe palms of her hands.

It was suggested by PW7 that the injuries on the deceased's palms was consistent with her disparate attempts to prevent the cutting of her neck by her assailants with a panga. A cloth was found in the deceased's mouth. This is consistent with an attempt to gag the deceased from crying out for help.

The killing occurred in an open field and signs of a struggle and blood were evident on the ground where it occurred. After the killing, the deceased,s body was lifted and dumped in a bush about 15 meters away. lt was here, in a hidden bush that PW7, PW6, PWs, PW4 and PW3, found the body of the deceased, after an extensive search.

The post mortem report indicated that the deceased died of the cut wounds that were inflicted on her body. The defense did not contest the fact that the deceased's death was unlawfully caused.

In agreement with the Gentlemen Assessors find that the prosecution has, proved beyond reasonable doubt, that death of the deceased was with violence, and that the killing was unlawful.

The third issue is whether the death of the deceased was caused with malice afore thought?

Malice afore thought, is defined in Section 191 of the Penal Code Act. It provides as follows:

"Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances; (a) an intention to cause the death of any person, whether such person is the person actually killed on not; or,(b) knowledge that the act or omission causing death will probably cause death of someone, 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".

Generally, malice afore thought can be inferred from any of the following;

- 1) The nature of the weapon used; - 2) The manner of use of the said weapon; - 3) The part of the body affected. - The nature and extent of the injuries suffered. - 5) The conduct of the assailants before and after the attack.

In this case, from the evidence of PW5, the deceased was cut on the neck with a panga. A panga can be a very lethal weapon when and if used for offensive purposes. From the deep cut wounds that the deceased suffered, with the neck almost severed off, it is evident that the panga was used with purpose and venom. It is the evidence of the prosecution, that the deceased, suffered deep cut

wounds on the neck. The neck is a very vulnerable and sensitive part of the human body. It has the trachea or air passage to the lungs and the neck vessels leading to the head. These vital organs, according to the post mortem report, were all cut. The nature and extent of the injuries was deep.

There can be no doubt that the person who inflicted these injuries intended that the deceased should die or knew or ought to have known that death was an inevitable consequence, in the circumstances. After the gruesome killing, the assailants set out to hide the body of the deceased in an isolated bush away from the actual scene of crime.

The defense did not contest the fact that malice afore thought could be inferred from the circumstances of this case.

In agreement with the Gentlemen Assessors am certain that the assailants of the deceased intended to cause her death. I find that the prosecution has proved beyond reasonable doubt that the death of the deceased occurred with malice afore thought.

The fourth issue is whether the accused participated in the killing of the deceased? This is the main issue for this court to determine as the defense contested the accused's participation in the killing of the deceased.

It was the Prosecution case that there were several factors favoring correct identification of the deceased's assailants.

PW5 was familiar with what his father was wearing on the day in question, as he had just brought porridge to the witness for lunch that day. Further, Pw5 had after a few moments thereafter, seen both the accused and the herdsman of the deceased, one Byakatonda, talk together at the edge of the accused's rice garden. Pw5 knew the herdsman of the deceased as he would go to the deceased's home from time to time to collect milk.

The incident itself, occurred in broad daylight, on a day that was a clear day. Pw5, was at all material times deployed, by his father to guard the rice garden, form the menace of birds that day. In these circumstances, it would be expected that Pw5 was required to be vigilant and alert in the discharge of his duties. In the court's assessment, the accused would not have deployed Pw5 on such a delicate assignment, if he did not trust in his diligence, alertness of mind and sense of responsibility.

The evidence of PW5 puts him at a distance of about 100 meters when he first heard the wailing cries of a woman break out that afternoon. On the spur of the moment, he moved nearer to a distance of about 50 meters to ascertain what was happening. It is from the vantage position that he sees what turn out to be the slaughter of the deceased at the hands of the herdsman while being assisted by the accused.

The Scene of crime, itself was an open grassy field at the edge of the accused's rice garden. Pw5 could see as the deceased struggled to save her life while restrained on the ground. The grass in the area was smoothened down owing to the struggle of the deceased.

For the defense, it was contended that there were factors that could have impeded correct identification of the deceased's assailant. It was pointed out that Pw5, admitted to experiencing fear when he realized what was happening.

PW5 gave his age as 13 years, upon inquire by the court. The court conducted a Voire dire, on the religious beliefs, intelligence, ability and competence of PW5. After conducting the inquiry, the court determined that, PW5, although a child of tender age, knew the difference between truth and lies, and appreciated the duty of telling the truth to the court. I was certain that PW5 clearly understood the nature of an oath, the seriousness of taking such an oath and it consequences and as a result, the court allowed, the witness to give evidence on oath.

It is the law that a child of tender age is one under the age of 14 years. (See; case of, Tomasi Omukono vs. Uganda [1978] HCB 171.)In that case, the Court of Appeal of Uganda noted thus;

"Whereas, the age of 14 years may be taken as a guideline and a child of tender age must be under that age, not every child under that age is of tender age as the whole matter is left to the good sense of the court".

I must state, without any hesitation, that PW5's physicality and stature, betrayed the age of 13 years that he gave to the court upon enquiry. The issue of his age could not be conclusively resolved since the witness did not know when he was born.

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However, lwas convinced, from careful observation of the witness, while he testified before me, that his demeanor, presence of mind, composure and courage were those, of a child, beyond 14 years of age. This was particularly so as the witness testified in respect to what his own father had done. The witness testified without consternation and his ability to observe, remember and to verbally describe events, deeply impressed me.

This court, is however aware of the provisions of section 0(3) of the Trial on lndictment Act, which provide as follows;

"Where in any proceedings, any child of tender age called as a witness does not ,in the opinion ,of the court,undersand the nature of an oath, his or her evidence may be received, though not given upon oath,if,in the opinion of the court, he or she is possessed of sufficient intelligence to iustify the reception of the evidence and understands the duty of speaking the truth; but where evidence admitted by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating him or her".

Considering that PW5 was a single identifying witness and in the event that the court's assessment of PW5's age and his understanding of the nature of an oath was in error, I warned and directed the Gentlemen Assessors, just as I now warn and remind myself, of the need to exercise care and caution in the examination of PWS's evidence and to look for corroboration of his evidence, as is required by law and by prudence.

ln terms of section a0(3) of the T.l. A, therefore, Pw5 identification evidence would require corroboration from an independent or natural source, in respect to some material aspects of this case, if it is to relied upon. Corroboration means

support. Corroboration is thus, independent evidence which implicates a person accused of a crime by connecting him with it; evidence which confirms in some material particular not only that the crime has been committed but that the O accused committed it. (See. Sarkar on the law of Evidence, vol 2, page 2?TLl. Corroboration need not be in respect to all the particulars of the offence committed. lt would suffice if some major aspect of the circumstances related by the witness was to be supported by another witness.

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The Supreme Court of Uganda,in Criminal Apeal No 7 of 2004, Susan Kigula Sserembe and anothervs Uganda noted thus on this point;

" Corroboration in part, corroborates the whole. Therfore,if a material O part of the child's (witness's) evidence, is corroborated, not only may that part of his evidence, be relied upon, but that part which is not corroborated, the corroboration of a material part being a guarantee of truth of this evidence as a whole. (Also see R vs. Tarbhai Mohamedbhai [19431 10 EACA 50]

It was submitted by the prosecution that the following instances of evidence, could, provide corroboration of the evidence of PW5.ln response thereto, the defense contended that there was no evidence to corroborate the alleged participation of the accused.

- 1) -lt was Pw5 evidence that he saw the herdsman cutting the deceased's neck while the accused was holding her by the legs. The post mortem report, Pex no 1, indicates that the deceased suffered deep cut wounds on the neck, which evidence is consistent with what pw5 saw. - 2) PwS, testified that the deceased was executed while she was lying down in an open grassy field. PwT, testified that there were signs of struggle at the scene of crime with blood covering the grass that was smoothened down. Pw6 testified that there was an area that appeared to have been cleared where grass was smoothened down. - 3) Pw5 stated that he saw the accused and the herdsman lift the body of the deceased and move it away from where the killing took place. PWT and PW6 corroborate this evidence by stating that the body of the deceased

was found in a bush about 15 meters from the scene of crime. The fact that the body of the deceased was not easily seen by the search parties, confirm the fact that the body was removed from the scene of killing by lifting it to a hidden bush. lt is evident that a single person would not have lifted the deceased body alone.

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- 4) According to PW7, the accused on the evening of the 7th day of November 2006, when the deceased was reported to be missing from her home, tended to direct the search party away from where the body of the deceased was eventually found the next, morning. - 5) The accused himself admits that Pw5 had been deployed on duty in the rice garden and that he had as a consequence missed school for a few days. Pw6, a teacher of Pw5, f, confirms that Pw5, had missed school, for ^a number of days. - 6) On that particular day, the accused admits to have been at the rice garden near the scene of crime when he took porridge to Pw5, for his lunch. - 7) Pw5 reaction after witnessing these events was quite emotional considering that he had just seen his father participate in the killing of ^a neighbor and a relative. This reaction was spontaneous and natural phenomena of distress upon seeing a relative engage in a killing . This reaction, would account for PW5's initial reluctance to report the events he had seen, to any authority and strengthens the reality and certainty of his identification evidence as being free from error. PW5 actions of disappearance from home for over a year were therefore, inevitable.

It is my consideration that medical evidence, the natural condition of a scene of crime, the accused's own conduct and movements near the scene of crime and the emotional and distressed reaction of PW5, provide supportive evidence, to the direct evidence of PWS.

^Iwill now consider the Defense case. The accused avers that after taking porridge to Pw5,, he returned home to look after his children. ln other words, the accused claims that he was not at the scene of crime at the material time. This in law is what is called an alibi.

Where the prosecution adduces evidence showing that an accused person was at the scene of crime and an accused person denies it but also adduces evidence showing that he was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted.(See;Sekitoleko vs. Uganda (1967)EA 531;Ntale vs. Uganda (1968)EA 365).

I have already pointed out the general principals of the law on a defence of alibi. will return to consider this defence, in some detail shortly.

The accused challenged the credibility of PW5 considering that he had disappeared from his home and that he has been staying with the husband of the deceased. PW5 admitted that he was staying with the husband of the accused one Jaggwe, and maintained that he was an uncle. The accused on his part denied this relationship.

The defence further argued that there was no motive for the murder of the deceased that could be attributable to the accused personally. It was pointed out that the accused took part in the search and attended the vigil at the deceased's home.

I will first address the issue of alibi, when it is raised as a defence to a charge by an accused person. In such a case, it is expected that such an accused person, would raise the defense of alibi at the earliest opportunity. The Supreme Court of Uganda, in the case of Festo Androa Asenua and another vs. Uganda Criminal **Appeal No1 of 1998, stated thus on this point ;**

"The belated disclosure of an alibi must go to the credibility of the defence". In this case, the Supreme Court, cited with approval the case of Rvs. Sukha Singh S/o Wazir Singh and others (1939)6 EACA 145 where the Court of Appeal noted thus; "If a person is accused of anything and his defense is an alibi, he should bring it forward that alibi, as soon as he can; because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in interval, and secondly, if he brings it forward at the earliest

possible moment it will give prosecution an opportunaty of inquiring into that alibi and if they are satisfied as to its genuineness ,proceedings will be stopped".

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Such an opportunity would have been to put it to Pw5, during cross-examination that the accused returned home after bringing him lunch that day. Was this defense put to Pw5? This alibi was not put to PW5 during cross-examination to test his veracity. This court must now carefully weigh the defense of alibi with the rest of the evidence on record and consider the effect of failure to raise the alibi to test to challenge the evidence of PW5.

ln my opinion, the alibi is put forward alright, but, in the circumstances of this case, the alibi is of least value, if any, as it was belatedly disclosed. I have considered the evidence of PW5 and accept his evidence that the accused was at the scene of crime at the time of the murder of the deceased. The alibi is false and is rejected.

I will now address the accused's assertion that, he joined in the search and even stayed at the Virgil at the deceased's home. lt was contended that these actions are not compatible with those of a guilty man. On this point, I have considered the evidence of PW4, D/Cpl Amonyi, a police officer, who, testified that, according to his experience, it was possible, in some instances, for a suspect to act with normalcy if he was convinced that no one had seen him or her do the crime. ^I accept the considered opinion of D/Cpl Amonyi, an investigative police officer of 18 years experience.

ln this case, the evidence suggests that, there was no information regarding what had actually happened to the deceased, before PW5 revealed what he had seen to PW6 and who eventually reported to the police. lt is my finding therefore, that until the incriminating information came in, the accused was never suspected for the first few days and he could and did act with remarkable normalcy and could have got away altogether if PW5 had not revealed any information to PW6.

I will now address the issue of whether PW5 could have been influenced, Would PW5 have wrongly implicated his own father in a crime he did not commit or participate in its commission? a

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From the onset it must be acknowledged that the evidence of a witness cannot just be impeached or disregarded simply on account of his or her relationship with the victim or the accused or that he or she has been staying with relatives or in laws married to the deceased without foundation. Further, it is generally unlikely that a son would maliciously testify against his father and get away with it.

It has to be considered that despite the emotional trauma that this witness went O through upon seeing his father participate in the killing of a wife of a family member and a close neighbor, the witness had the courage to sincerely relate to PW6, the police and eventually to this court what he saw that day. I am convinced that the fear that PW5, sincerely acknowledged to have experienced, set in, immediately after he witnessing the killing of the deceased.

As a child, with innocence at heart, the events of the day deeply affected him. This is evident from the admission that he was afraid to tell anyone what he had seen that afternoon and the anguish that he so plainly exhibited in court, at not having anywhere else to go for the night, following the traumatic events of the day, but to stay at home, in fear of his own father.

PW5 withstood a searching cross-examination and emerged cool, consistent, cogent and convincing, There was no contradiction between the statement PW5 made to the police, before he went to stay with his uncle and his testimony made to this court. ln these circumstances, I reject the insinuation that PWS was influenced to falsely incriminate the accused.

ln agreement with the unanimous opinion of the Gentlemen Assessors find that PW5 was a sincere and willing witness and I believe him.

lwill now address the issue of whether the accused and the herdsman were acting under Common intention. Section 20 of the Penal Code Act, provides;

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

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For the doctrine of common intention to operate, it is not necessary that an accused person must have agreed or entered into a pact to commit the offence, with another. Common intention may be inferred from their conduct, presence at the scene of crime, and their actions or failure to disassociate themselves from the commission of an offence. lf violence is used to execute the common intention, and death results, then all the participants are guilty of murder.(See: Andrea Obonyo vs. [1962]EA 542,James Semwogerere vs. Uganda [1979]HCB 7L.l

ln this case, it can be inferred that, by meeting in the field, near the scene of crime, immediately before the act of killing, with the accused armed with a panga, and thereby proceeding to capture, restrain and kill the deceased, the accused and the herdsman, were acting in common, with the intention to kill the deceased.

ln agreement with the unanimous opinion of the Gentlemen Assessors,l find that, the death of the deceased was a consequence of the common purpose of the actions of both the accused and the herdsman, in the killing of the deceased.

I must now turn to consider whether the accused can be regarded as a principal offender given the circumstances, of this case. lt is the case, from the evidence of PWs, that it was the herdsman, who did the actual cutting of the deceased with ^a panga, while the accused held the deceased's legs during the struggle. By his actions or omission was the accused an aider or abettor to the herdsman's actions?

To constitute an aider and abettor, some active steps must be taken by such a person by word or action. An aider and abettor encourages intentionally by expressions, gestures or actions, intended to signify approval and is voluntarily

and purposely present, witnessing the commission of a crime and offering no opposition to it or his dissent. An aider is one who actively helps supports and gives encouragement to the main participant in the commission of a crime. By his presence at the scene of crime, in an active capacity, an aider becomes a principal offender as well.

Section 19 (1) (c) of the Penal Code Act, provides that;

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it; every person who aids or abets another person in committing the offence".

Would the herdsman have easily slaughtered the deceased, without the help of the accused, in restraining her fight back? The law is that the actions of one become the actions of all.

In agreement with the unanimous opinion of the Gentlemen Assessors, I find that the accused was a principal offender as he actively prevented the fight back of the deceased and by so doing facilitated her violent death.

There was no motive for the killing of the deceased that could be gathered from the prosecution evidence. Motive is the emotion which impels a man or men, to do a particular act. It is quite possible that the impelling factor that would account for this killing will reasonably be undiscoverable. Though, it is a sound presumption that every criminal act is done with a motive; it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. The mere fact that the prosecution has failed to translate the mental disposition of the accused into evidence, does not mean that no such mental condition, existed in the mind of the assailants. In any case, section 8 of the Penal Code Act, states that motive is irrelevant so far as regards criminal responsibility.

The non-examination of the exhibits recovered from the accused's house to ascertain whether the blood stains found on the panga and the tie-shirt are those of the deceased, is a major gap in the prosecution case. I however find that this

omission is not fatal to the prosecution case as there is available other evidence that has been alluded to herein pointing to the accused's participation in the killing of the deceased.

ln respect to the law on inconsistencies and contradictions, it is the case that only grave inconsistencies that are not explained satisfactorily that will usually result in the evidence of a witness being rejected but minor inconsistencies will not have that effect unless they point to deliberate untruthfulness. lt is my finding that this case had few inconsistencies that would arise on account of lapse of time.

ln agreement with the unanimous opinion of the Gentlemen Assessors, I find that the prosecution has proved beyond reasonable doubt that the accused, participated as a principal offender in the killing of Nalubale Teopista Jaggwa' ln the result, having found that the prosecution has discharged its burden of proof on all the ingredients of the offence of murder, beyond reasonable doubt, ^I according convict him as charged.

BENJAMIN KABIITO

JUDGE

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Nanima Robertfor the state.

Katamba Sewallah for the accused.

Accused present.

Catherine Nakabugo-Clerk.

Court: Judgment delivered in open court.

BENJAMIN KABIIT JUDGE

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Court: Section 189 ofthe Penal Code Act, provides tha| "Any person convicted of murder shall be sentenced to death". However,on the basis of the authority of susan Kigula sserembe and others vs uganda constitutional Appeal no 3 of 2006, ^Iwill allow submissions for consideration and mitigation of sentence.

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Nanima:l have no criminal record of the convict and I pray that the court considers him to be a first time offender. The convict is aged 38 years' He has been on remand for two years and six months. The convict stands guilty for murder and upon conviction this offence could, subject to the Kigula authority, attract, the death PenaltY.

I invite the court to take into consideration the fact that the deceased was ^a middle aged woman of 43 years. The circumstances under which she met her death were quite barbaric and painful. The court should reflect on the painful and slow death the deceased, suffered in full view of her executioners'

The actions of the accused led to the death of the deceased and robbed the Jaggwe family of a wife and a mother. A wife and a mother are very useful members of any family especially in the middle age bracket and beyond'

Throughout the trial, the convict did not shown any remorse or sorry for his role in the circumstances leading to the death of a wife of a close relative and neighbor.

ln the circumstances, we respectfully pray that the court, that in order to meet the ends of justice in this case, the court passes the death sentence on the convict.

Katamba: The convict has spent two years and six months on remand to date. He is a first time offender. The convict has a family to look after and he was the bread-winner.

The convict appears sorry and remorseful. At the age of 38 years, the convict can still be useful and productive to society. We accordingly pray for leniency and for the court to consider a custodial sentence as sufficient to meet the ends of justice, in this case.

Accused: I pray that the court releases me so that I can go and look after my family. That is all.

Husband to the deceased: Ssentongo Jaggwe Robinson. The accused is my grandson. His elder brother married from my home. I ask the court to consider the fact that the family lost a mother and for me, a wife, in painful and horrific circumstances. I pray that the court considers life imprisonment.

Court: Sentence and reasons thereof:

The convict stands convicted for murder c/s 188 & 189 of the Penal Code Act. The convict in this case participated in the slaughter of an innocent wife of a close relative and neighbor. It is this court determination that the deceased met her death in a gruesome, horrific and painful manner. The fact that the deceased was able to see the convict, an- in -law, actively engage in restraining her by the legs, as she attempted to fight off the executioners panga, makes this murder to have been perpetrated in a callous manner. The convict manifested an attitude of naked impunity and scorn in the way the deceased was killed and her body dumped in a thick bush, thereafter.

It is with the same attitude that the convict now arrogantly, prays for this court to release him in order for him to go and look after his children. The convict's prayer confirms the lack of remorse or sorry that characterized his demeanor throughout this trial.

It is this same attitude that was manifested again when the convict, during trial, expressed surprise that his own son, Bbosa Mbusera, could come to court and testify against him.

The lack of any emotion could account for the convict's critical role and participation, in the elod-bloodied slaughter of the deceased.

In these circumstances, I find no grounds for the exercise of leniency by the court by way of consideration of a custodial sentence to meet the ends of justice in this case.

I according sentence the convict to death. He shall suffer death, in a manner prescribed by law.

**BENJAMIN KABIITO**

**JUDGE**

12/06/2009

Court: Right of Appeal explained.

**BENJAMIN KABIITO**

**JUDGE**

12/06/2009