[2023] UGHC 484

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE**

# **CRIMINAL SESSION NO. 026 OF 2021 (Arising from Kisoro Criminal Case No. 0035 of 2020)** 10 **(Arising from Kisoro CRB 446 of 2020)**

**UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **PROSECUTION**

# **VERSUS**

# **A1: NZAYIKORERA ALLAN**

**A3: KANA ALEX** ::::::::::::::::::::::::::::::::::::::::::::::::::::::: **ACCUSED**

# **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

# 20 **JUDGMENT**

The two accused persons Nzayikorera Allan (A1) and Kana Alex (A3) stand indicted for murder contrary to **Section 188** and **189** of the **Penal Code Act**. The particulars giving rise to the indictment are that Nzayikorera Allan, Nsengiyunva Japier and Kana Alex on the 20th July, 2020 at Murinzi village in Kisoro District

# 25 with malice afore thought unlawfully caused the death of Byamugisha Paul.

Nzayikorera Allan (A1) and Kana Alex (A3) both pleaded not guilty. Nsengiyunva Japier under a plea bargain agreement pleaded guilty was convicted and sentenced accordingly.

# **Representation**

30 Mr. Ainomugisha Christopher (Senior State Attorney) appeared for the prosecution while Mr. Bakanyebonera Felix represented A1 on state brief and Ms.

5 Namara Alice represented A3 on private brief. The Assessors in this case were Mr. Rwangeyo Joseph and Mr. Tumushime Emmanuel.

# **The burden and standard of proof**.

This being a criminal trial, it is one whose proof lies squarely on the prosecution and the accused persons have no duty to prove their innocence. It is also proof 10 beyond reasonable doubt. Any doubts must be resolved in favour of the accused persons and the Accused persons must only be convicted on the strength of the prosecution case and not on the weakness of the defence case.

# **See Ssekitoleko versus Uganda (1961) EA531**

# **Ingredients**

- 15 For the accused persons to be convicted of murder the prosecution must prove the following ingredients beyond reasonable doubt; - a) Death of a human being - b) That the death was caused by some unlawful act - c) That the unlawful act was actuated by malice afore thought - 20 d) That it was the accused who caused the unlawful death

# **a). Death.**

Death may 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 deceased's body.

25 It is the evidence of Nyirabakire Felesta (PW1), Nsibomana John (PW2) and Banguwiha Ronald (PW5) that they knew the deceased Byamugisha Paul and in

the morning of the 21st 5 July, 2020, they saw him in the morning in distress and pain before taking him to Kisoro hospital where he later died that night. All 3 testified to viewing his dead body and attending his burial on the 23rd July, 2020. Their evidence is corroborated by the post-mortem report in Exhibit P2 that details the cause of death of Byamugisha Paul as being as a result of Haemorrhagic 10 shock due to a ruptured spleen following blunt abdominal trauma.

The same was dated 23rd July, 2020. The accused persons did not contest the fact that Byamugisha Paul is deceased. I therefore find that the prosecution has proved the death of Byamugisha Paul beyond reasonable doubt.

# **b). That the death was caused by some unlawful act**

15 The law presumes that any homicide (killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental, excusable or authorised by law.

# **(R versus Gusambizi s/o Wesonga (1948) EACA65)**.

It is the evidence of Nyirabakire Felesta (PW1), Nsibomana John (PW2) and Banguwiha Ronald (PW5) that in the morning of the 21st 20 July, 2020 when they saw Byamugisha Paul, he was in pain and complained of feeling pain in his chest, ribs and kidney area and that he later died at Kisoro hospital. The post mortem report in Exhibit P2 revealed that the deceased's cause of death was haemorrhagic shock due to a ruptured spleen following blunt abdominal trauma.

25 There is no evidence on record to suggest that the death of Byamugisha was either accidental, excusable or authorised by law. It is my finding that the prosecution 5 has successfully proved beyond reasonable doubt that the death of Byamugisha Paul was unlawful.

# **c). That the unlawful act was actuated by malice afore thought.**

**Section 191** of the **Penal Code Act** provides that malice afore thought may be proved by direct evidence or may be inferred from the evidence indicating 10 knowledge that the conduct of an accused would probably cause the death.

The Courts however are cognisant of the difficulty of proving an accused persons mental disposition but are agreeable to an inference of such disposition from the circumstances surrounding the homicide under investigation.

# **See R versus Tubere (1945) 12 EACA 63**.

15 Malice afore thought in murder trials can be ascertained from the weapon used (whether it is a lethal weapon or not) the manner in which it is used (whether it is used repeatedly or the number of injuries inflicted) the part of the body that is targeted or injured (whether or not it is a vulnerable part) and the conduct of the accused before, during and after the incident (whether there was impunity).

# 20 **See R versus Tubere (Supra)**

It is the evidence of Nyirabakire Felesta (PW1) that in the morning of the 21st July, 2020, she was looking for her husband Byamugisha Paul who had not returned the previous night when at around 6:00 Am they found him lying at the roadside before the trading centre about 100 metres away from their home and that he 25 was breathing but he could not sit. According to PW1 her husband Byamugisha told her that he was feeling pain in his ribs and chest and whenever he was

- 5 touched, he would scream. It is the evidence of PW1 that the area around his kidneys was also painful and that with the assistance of Nsibomana John (PW2) and Banguwiha Ronald (PW5) they were able to take him to Kisoro hospital where he was treated by doctors and regained some strength upon which he told them that he had been assaulted by Kana, Allan and Ndaisenga. - 10 According to PW1, the deceased told them they assaulted him by use of two sticks and that he was squeezed between these sticks and he was having difficulty breathing and did not say much thereafter. PW1 states that Byamugisha then lost consciousness and later died at 9:00 pm on the same date of the 21st July, 2020.

Dr. Rukundakarikizi Benon (PW7) presented the post mortem report carried out 15 by Dr. Twine John Bosco who he supervised at the time in Kisoro hospital and whose presence could not be secured within the time frame for the session. The post mortem report was dated 23rd July, 2020 and received as Exhibit P2. According to PW7 the findings in Exhibit P2 were that Byamugisha Paul was

admitted at the hospital on the 21st July, 2020 with abdominal pains following an 20 assault and his examination revealed that his Pallar conjunctiva blood pressure was 80/60 with severe abdominal tenderness and his heart rate was 134 per minute which is way above the normal of 60-100 per minute.

There was tenderness below his left ribs and laboratory tests revealed that his haemoglobin was low at 1.97, his Red blood cells were 1.5, his preblets were 103 25 instead of 250 and the white blood cells were at 2.44 and the normal level is usually above 6. The sum total of all the above according to PW7 was that the deceased died as a result of haemorrhagic shock due to a rupture spleen following blunt abdominal trauma (use of a blunt object).

- 5 The evidence of PW1 that the deceased told her that he had been assaulted with the use of two sticks and that his body was painful to the touch on the abdominal, rib and kidney areas is well corroborated by the post mortem report in Exhibit P2. The spleen is located in a vulnerable and sensitive part of the body. Its rapture by use of a blunt object leading to haemorrhagic shock resulting into death clearly - 10 demonstrates that the intention of his assailants was to take his life which they were able to do.

It is my finding that the prosecution has proved beyond reasonable doubt that the death of Byamugisha Paul was actuated by malice afore thought.

# **d). Participation of the accused persons**

15 The accused persons in this case raised the defence of alibi. Nzayikorera Allan (A1) in his unsworn defence states that on the 4th August, 2020 at around 12:00 am he was at home sleeping when police officers asked him to open and that when he did so, they arrested him and took him to a police car in which he found another man not known to him and that he was taken to Kisoro police station 20 where he was questioned about Byamugisha Paul to which he replied that he did not know him. It is the defence of A1 that he knows nothing about the death of Byamigisha Paul.

Kana Alex (A3) in his unsworn defence denied the charge of murder stating that on the 20th July, 2020, he went in the morning to check on his cows that were 25 being grazed and returned home at 3:00 pm. Prior to this day according to A3 as his men were grazing his cows ate the crops belonging to one Gakyirabache and

5 that they caught his cows and Nsibomana (PW2) and Banguwiha (PW5) testified against him but that the issue was later resolved and his cows released.

It is the evidence of A3 that later on the 30th July, 2020 he travelled to Kampala then to Oyam District in search of better business opportunities and that he had been there for one week when he was arrested by the Police on the basis that he

10 had killed someone in Kisoro and that he was later transported back to Kisoro and arrived on the 25th August, 2020. According to A3 in prison, he found A1 and A2 and it was said that he together with them had killed Byamugisha an allegation that he denies.

Where an accused person raises the defence of alibi the onus is on the prosecution 15 to discredit this defence and to place the accused person at the scene of crime.

# **(See Kyalimpa Edward versus Uganda SCCA No. 10/1995).**

To discharge this obligation, the prosecution relied on the evidence of Nyirabakire Felesta (PW1) who testified that she knows A1 and A3 as her parish mates and that the two of them used to graze in their area and that on the 20th July, 2020 20 she waited in vain for her husband Byamugisha Paul to return but that he did not. According to Felesta, the next morning at around 6:00 am she and her children moved out in search of her husband and that they found him lying at the roadside before the trading centre about 100 metres from their home and that he was breathing but could not sit. It is the evidence of Felesta (PW1) that her husband 25 when she talked to him told her that he was feeling pain in his ribs, chest and around the kidneys. According to Felesta when they touched the late Byamugisha 5 he would scream and that she sent for Nsibomana (PW2) and Banguwiha (PW5) who helped her to take her husband Byamugisha Paul to Kisoro hospital.

It is the evidence of Felesta (PW1) that at Kisoro hospital, the doctors attended to Byamugisha Paul and he regained more strength and that the doctors who were treating him asked him what had happened to him and that he responded that he

- 10 had been assaulted by Kana, Allan and Ndaisenga. Further that he told them that they had used two sticks to squeeze him from both sides. Felesta states that she was present together with Nsibomana (PW2) and Banguwiha (PW5) when her husband Byamugisha made these revelations. That after this, he shortly after lost consciousness and did not recover. He died at 9:00 pm that very day of the 21st - 15 July, 2020. Felesta under cross examination maintained that A1 is the only Allan that was known to her and her husband.

The prosecution also presented Nsibomana John (PW2) who testified that he knows both accused persons as herdsmen in their area and that on the 8th July, 2020, he was at Gakware at around 11:00 am when he heard an alarm being 20 raised and he responded to the same. PW1 states that when he got there he found that cows being grazed by Allan (A1) and Kana (A3) had strayed into the Irish potatoe garden of one Gashirabashe John and people who had responded to the alarm were trying to catch the cows and get them out of the garden but that Allan (A1), Japier (A2) and Kana (A3) were fighting back with sticks preventing them 25 from doing so and in the process, one Lovene Habarurema was struck on the head and injured. That Allan (A1), Japier (A2) and Kana (A3) then ran away leaving their cattle behind and that the owner of the cattle Ssemuvumbi came and was fined to pay some money which he did. According to PW2 Lovence who was

- 5 injured was a brother to Byamugisha Paul who had demanded that Ssemuvumbi pay some money for the injured Lovence to cover his treatment and that Ssemuvumbi was the father of Allan (A1). It is the evidence on PW2 that on the 20th July, 2020 between 6:30 pm – 7:30 pm while at Kidandali trading centre Allan (A1), Japier (A2) and Kana (A3) began to threaten Byamugisha Paul that he 10 should not have demanded for so much money and that he will not eat it in peace. PW2 states that the threats were made while they were outside Nicolas bar and that they entered the bar to drink and later Byamugisha Paul departed leaving them inside the bar and that at the time of his departure, Allan (A1), Japier (A2) and Kana (A3) were not with them inside the bar. PW1 testified that the next morning of the 21st 15 July, 2020 Felesta (PW1) sent a child to inform him that they needed help because Byamugisha had been assaulted and was at the roadside. That together with his brother Banguwiha (PW5), they moved to Muramba Sub County and along the road, they found Byamugisha lying down and Felesta (PW1) was also there. PW1 states that Byamugisha could not sit up or speak clearly and 20 that they arranged for him to be transported to Kisoro hospital where upon arrival the doctors immediately began to attend to him and that after 2 hours at around 9:00 am, the doctor asked Byamugisha what had happened to him and that he said that he had been assaulted on the chest and kidney by Kana Alex, Nzayikorera Allan and Japier. PW2 testifies that he later left the hospital with 25 Banguwiha (PW5) and went back home but that at 8:30 pm his sister received a phone call that Byamugisha was dead. PW2 under cross examination and reexamination revealed that the deceased Byamugisha told them that he had been assaulted by Kana and Allan and did not mention the 2nd names of Nzayikorera and Alex. - 9

- 5 Banguwiha Ronald (Pw5) in his testimony that was identical to that of Nsibomana (PW2) testified that on the 8th July, 2020 he heard an alarm being raised at around 11:00 am while he was at Kidandali trading centre and that he responded to the same and when he did so he found when Lovence was injured and cows had also seen captured. It is the evidence of PW5 that later Allan (A1) and Kana (A3) returned and Allan's father, Ssemuvumbi stood surety for the cows and on 10th 10 July, 2020, the matter was handled by the LCI Chairperson and that he was present at the meeting but that Lovence did not receive his compensation and Byamugisha Paul was saying that they were yet to pay the compensation. - It is the evidence of PW5 that on the 20th July, 2020 he was at Kidandali trading 15 centre at around 6:00 pam with Nsibomana (PW2) at one Nicolas bar when they were joined by Byamugisha who bought a drink and after taking the same left at around 8:00 pam. Prior to this PW5 states that he had seen Allan (A1) and Kana (A3) at one Kazuba's bar at around 4:00 pm. Pw5 testifies that the next morning at around 6:00 am the daughter of one Alozious came to their home calling them 20 to go and help Felesta (PW1) whose husband was lying at the side of the road and that he moved with Nsibomana (PW2) to the home of Byamugisha where they found Felesta and others trying to nurse him and he was lying down in a bad condition and vomiting blood. PW5 states that they then organized for Byamugisha to be taken to Kisoro hospital and that he together with Nsibomana 25 (PW2) and Felesta moved with him and that when they got to the hospital Byamugisha was put on drip and after he began to gain some strength and when he was questioned by one of the doctors who asked him what happened to him he responded that he had been assaulted by Kana and Allan and did not know the

- name of the 3 5 rd man. According to PW5 Byamugisha told them that they stole his hammer, tape measure and plane. That they had beaten him and when he fell down, they jumped on him. It is the evidence of PW5 that he later left the hospital with Nsibomana (PW2) and at 9:00 Pm Felesta (PW1) called Nsibomana (PW2) and informed him that Byamugisha had died. - 10 **Section 30** of the **Evidence Act** defines a dying declaration as a statement made by a person who believes he is about to die in reference to the manner in which he or she sustained the injuries of which he or she is dying or the immediate cause of his or her death and in reference to the person who inflicted such injuries of a person who is charged or suspected of having caused them. - 15 This Court takes note of the fact that dying declarations must be received with caution because the test of cross examination may be wanting and particulars of violence may have occurred in circumstances of confusion and surprise. Although corroboration of such statements is not necessary as a matter of law, judicial practice requires that corroborative evidence must always be sought for**.**

## 20 **(See R versu Eligu S/O Odel and Epangu s/o Ewunya (1943) 10 EACA 90).**

The 3 prosecution witnesses in this case Nyirabakire Felesta (PW1) Nsibomana John (PW2) and Banguwiha Ronald (PW5) all testified to have been together at the bed side of Byamugisha Paul at Kisoro hospital in what literally became his death bed because he passed on that very day in the night. The trio testified to 25 hearing the deceased name his assailants as Allan, Ndaisenga and Kana. The witnesses were emphatic that Allan and Kana made reference to, were the two accused now before Court. The other (A2) as already indicated plea bargained.

- 5 The witnesses suffered rigorous cross examination by the two defence counsel in this trial but they did not waiver. Their evidence was not discredited by cross examination. They gave their evidence in a candid and forth right manner. I am persuaded that their evidence was not propelled by malice or any ill will. - It would appear that the intention to kill Byamugisha Paul was anchored on the events that unfolded on the 8th 10 July, 2020 in which the cattle being grazed by the two accused destroyed crops belonging to one Gashirabashe and in the course of their cows being captured, the accused persons assaulted one Lovence, a brother to the deceased Byamugisha Paul who upon demanding for some sort of compensation from the father of A1 Ssemuvumbi set off a chain reaction in which 15 the accused persons not only threatened to take his life but also carried out the deed. The East African Court of Appeal in **R versus Tubere s/o Ochen (1945) 12 EACA** held that the conduct of an accused person before or after the offence in question might sometimes give an insight into whether he or she participated in the crime. - 20 The conduct of the accused persons in this case in the aftermath of the death of Byamugisha Paul points irresistibly at their guilt.

According to D/Sgt Nkuruziza Kenneth (PW6), Nzayikorera Allan (A1) went into hiding and attempts to arrest him on the 2nd August 2020 were futile until the 4th August, 2020 when he received information that Allan (A1) was at home and that

25 at 2:00 am they proceeded to the home of Ssemuvumbi the father of A1 where they surrounded the kitchen which was an incomplete structure where they were able to arrest A1 and another man of Congolese decent who when charged with A1 and A3 plea bargained.

5 It is the evidence of PW6 that at the time, A3 Kana had fled Kisoro District and was on the run until his eventual arrest in Oyam District from where he was returned to Kisoro to stand trial. This evidence was well corroborated by that of Misabike George (PW3) who gave a detailed account of how he worked with the police to track Kana Alex (A3) right from Kisoro District to Oyam District where 10 he was eventually arrested and returned to Kisoro to stand trial. The conduct of A1 and A3 in fleeing and going into hiding shortly after the death of Byamugisha Paul who had made mention of them as his assailants, points irresistibly at their guilt and corroborates the prosecution evidence.

I entirely reject the defence of alibi put up by both accused persons. The alibi's 15 were merely coined by the accused persons to try and evade justice. The evidence led by the prosecution has sufficiently discredited this defence and placed the accused persons at the scene of crime.

The evidence presented by the prosecution has been cogent and consistent. I have not found co-existing circumstances that would weaken or destroy the inference

20 that the accused persons are guilty.

After considering the evidence adduced by the prosecution and defence together and in full agreement with the gentlemen, assessors, it is my finding that the prosecution has successfully proved its case beyond reasonable doubt and I accordingly find the accused persons A1 and A3 guilty of the offence of murder 25 and convict them of the same.

Before me

5 ………………………… **Samuel Emokor Judge 12/09/2023**