[2025] UGHC 119

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA H. C. CRIMINAL SESSION CASE NO. 0061 OF 2022

(Arising from Kakumiro Criminal Case No.0002/2019; CRB No. 0041/2019)

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

#### **VERSUS**

**A1 ODAGA JAMES** A2 ONENCHAN JOSEPH=====================ACCUSED

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **JUDGMENT**

- The 2 accused persons, Odaga James (A1) and Onenichan Joseph (A2), $[1]$ were indicted of the offence of Murder C/ss 188 & 189 PCA Cap.120. It is alleged that on the $17/1/2019$ at Kitutuma village in Kakumiro District, with malice aforethought, the 2 accused persons unlawfully caused the death of Nasasira Ivan alias Hava. The 2 accused persons pleaded not guilty of the offence. - The prosecution case is that the deceased was cohabiting with a certain $[2]$ mutoro woman, a former wife of A1. On $17/1/2019$ , the fateful day when the deceased was last seen alive, it was at around 8:00pm when the deceased and his lover, the mutoro woman were at a one **Tumusiime's** bar. The 2 accused persons came and called out the said mutoro woman for a minute. She obliged but later returned and joined the deceased in the bar. Later, the deceased and the said mutoro woman left the bar. The 2 accused persons who had a motorcycle were seen following the deceased and his lover, the mutoro woman. That was the last time the deceased was seen alive. On the following day, the deceased was found dead in the trading centre at the mosque. The body had evidence of having been badly assaulted and nailed on the head. - The deceased having been last seen alive with the 2 accused persons, $[3]$ they became the first suspects. A search for the 2 accused persons ensued. It was found they had fled their village, Kalabata, Kakumiro District. They were however later located in Mubende where with the help of the Kasanda Police Mubende, they were arrested and later arraigned for Murder in court.

$\mathscr{G}$

- In their defence, in exercise of their rights under S.73(2) TIA, both the $[4]$ accused persons opted to keep quiet as a form of their defence. - As in all criminal cases, the burden of proof is upon the prosecution to $[5]$ prove the guilt of the accused persons beyond reasonable doubt. The burden never shifts to the defence except in a few exceptions provided A conviction is secured on the strength of the for by the law. prosecution case and not on the weakness of the defence. The prosecution is enjoined to prove all the ingredients of the offence to the required standard; Woolmington vs DPP [1935] A. C 562 and Lubega vs Uganda [1967] E. A 440. - In the case of Murder, the prosecution can only secure a conviction $[6]$ upon proving the following ingredients of the offence: - Death of the person named in the indictment. $1.$ - That the death was unlawfully caused. $2.$ - That the death was caused with malice aforethought. $\overline{3}$ . - That the accused persons participated in and caused the death of $4.$ the deceased.

# See Mukobe vs Uganda S. C. Crim. Appeal No. 121/1995.

### Death of the deceased.

- Under S.66 TIA, the prosecution adduced evidence of a Post-mortem $[7]$ Report which was admitted as P. Exh.1. As per P. Exh.1, the body of the deceased Nasasira Ivan was identified by the father, Tiberindwa Nathan (PW1) and it was established that the cause of death of the deceased was interalia, severe head injuries and multiple fractures arising from assault. The Post-mortem Report is dated $19/1/2019$ . The deceased's father viewed his son's body near the Mosque and stated that it was evident that the deceased had been badly assaulted. - $[8]$ The defence did not contest this ingredient of the offence. As a result. I find that the prosecution has proved beyond reasonable doubt that the deceased, Nasasira Ivan died during the night of 17/18 January 2019.

### Death was unlawfully caused.

$[9]$ It is trite that the law presumes every homicide to be unlawful unless it is accidental or authorised by law or excusable, for example if caused

in defence of a person or property, Gusambuzi s/o Wesonga v R [1948] 15 E. A. C. A 65.

[10] In the instant case, there is nothing to show or suggest that the death of the deceased fell under the exceptions above. Death arising from severe head injuries caused by nails and multiple fractures as disclosed by the Post-mortem Report (P. Exh.1) and PW1 is not justifiable and therefore is unlawful. I am satisfied that the prosecution has proved this ingredients of the offence to the required standard.

## Death was caused with malice aforethought.

- [11] S.191 PCA defines malice aforethought as the intentional killing of a human being or knowledge that the act or omission will result into death of a human being, Mugao & Anor vs R [1972] E. A 543. To determine whether or not the prosecution has proved malice aforethought, court considers the following circumstances; nature and number of injuries inflicted, the part of the body injured (whether vulnerable or not) and the type of weapon used, see Tubere v R [1945] $12$ E. A. C. A 63 - [12] In the instant case, the Post-mortem Report (P. Exh.1) and PW1 established the cause of death of the deceased as severe head injury and multiple fractures, arising from a bad assault upon the deceased. The head is one of the vulnerable parts of the body of a human being. Whoever inflicted the above injuries must have known that his acts would lead to the death of the deceased. He must have intended the death of the deceased. - [13] In the premises, I find that the $3^rd$ ingredients of the offence duly proved beyond reasonable doubt by the prosecution.

Participation of the accused persons in causing the death of the deceased.

[14] This is a very important ingredient of the offence considering the fact that the accused persons pleaded not guilty to the offence. There is no evidence as regards an eye witness who saw the 2 accused persons assault the deceased to death. It is however the evidence of **Mbafundizeki Joseph** (PW2), that on the evening of $17/1/2019$ at


around 8:00pm, the deceased and his lover, described as a mutoro woman who was an ex-wife of A1 were at a one Tumusiime's bar. Then, the 2 accused persons came around and called out for this woman. Later, this mutoro woman returned and joined the deceased. Later, the 2 lover birds left the bar but they were followed or pursued by the 2 accused persons who were on a motorcycle. That was the last time the deceased was seen alive. On the following day, his body was found lying near a Mosque with several head injuries, multiple fractures and bruises. Since the 2 accused persons were the ones last seen pursuing the deceased the previous evening coupled with the background of the deceased's love relationship with the mutoro woman, a former wife of A1, the 2 accused persons were the first suspects. A search for them revealed that they had fled their village of Kalabata for Mubende where with the help of Kasanda police they were arrested from.

[15] In brief, the prosecution relied on the above circumstantial evidence. In Byaruhanga Fodori vs Uganda S. C. Crim. Appeal No. 18 of 2002 [2005] 1 ULSR 12, it was held that:

"It is trite law that where the prosecution case depends solely on circumstantial evidence, the court must, before deciding on a 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. The court must be sure that there are no other co-existing circumstances which weaken or destroy the inference of guilt. (see also Musoke vs R [1958] E. A. 715".

- [16] In the instant case, as I warned the assessors, I warn myself of the need to treat circumstantial evidence with caution and therefore a need to narrowly examine it before it is depended upon for a conviction. - [17] The evidence of PW2 is to the effect that on the evening of $17/1/2019$ , at around 8:00pm, the 2 accused persons came and found the deceased with a mutoro woman known to had been a former wife of A1 at a one The 2 accused persons called out this mutoro **Tumusiime's** bar. woman who left the deceased but later returned to join the deceased. However, that later when both lover birds left the bar, they were followed by the 2 accused persons and that is when the deceased was last seen alive.

**All**

- [18] The above evidence was neither challenged during cross-examination nor during the defence itself since both the accused persons offered no evidence in defence. The 2 accused persons being persons who were last seen pursuing the deceased when he was alive, bear full responsibility for his death unless they account for what happened to him before they parted with him or before he met his death. - [19] The prosecution evidence adduced by both PW1 and PW2 that the 2 accused persons fled the village upon the death of the deceased also stand unchallenged by the defence. Disappearance of an accused person from the area of a crime soon after the incident is a high incriminating piece of circumstantial evidence. Many times courts have taken this factor into account in support of a conviction because such sudden disappearance from the area is incompatible with innocent conduct of such a person, it potentially suggests guilt or flight to avoid prosecution; Remegious Kiwanuka vs Uganda S. C. Crim. Appeal No.41 of 1995, and Uganda vs Mareni & Anor H. C. Crim. Session No. 33 of 2012 [2014] UGHCC RD 58. - [20] In the instant case, I find that the *Last seen doctrine* applies to this case. The 2 accused persons were the persons last seen pursuing or following the deceased to his death and when this is coupled by the fact that A1 and the deceased were wrangling over a woman, a fact that was not rebutted by A1 and then the accused persons fleeing the village upon the death of the deceased, in the absence of an account for what happened to the deceased before he met his death, the available evidence irresistibly points at the accused persons as responsible for the death of the deceased. I, in the premises find the 2 accused persons guilty of the Murder of the deceased Nasasira Ivan and I convict each of them accordingly.

Dated at Hoima this 18^th day of February, 2025.

**Byaruhanga Jesse Rugyema** Judge