[2023] UGHC 493

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT NEBBI CRIMINAL SESSION CASE NO. HCT-08-CR-SC-0089 OF 2023 $10$ UGANDA................................... **VERSUS** $15$ OWORMUNGU GODWIN....................................

20 **BEFORE:** HON. MR. JUSTICE GEORGE OKELLO

### **JUDGMENT**

### **Introduction**

$\mathsf{S}$

The accused person stands indicted with murder, contrary to section 188 and 189 of the Penal Code Act Cap 120. It is alleged in the particulars of the offence that, on 23^rd July, 2022, at Parombo Town Council in Nebbi District, with malice aforethought, the accused killed Arinaitwe Francis.

Legal representation

At the session hearing the accused was represented by learned Defence counsel Mr. Pirwoth Michael on State Brief. The State was represented by

35 Mr. Acwica Samuel and Mr. Naguyo Emmanuel, State Attorneys from the Office of the Director of Public Prosecution. Both sides submitted orally. I

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carefully listened to the submissions and I appreciate the industry $\mathsf{S}$ employed.

## Plea of not guilty and the hearing.

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The accused person pleaded not guilty. During the preliminary hearing the parties agreed on a request for post mortem report (PF 48) marked as PEX1 (a), and the post-mortem report (PF 48B), marked as PEX 1 (b). Two assessors were proposed, accepted, appointed, sworn in, and the State opened its case.

15 The Prosecution called three witnesses namely, Osama Patrick, an 18 year old, Ajolorwoth Moureen, a 22 year old, and No. 34248 Det. Cpl. Sunday Drucile, a 43 year old. After the close of the prosecution case, Court ruled pursuant to section 73 (2) of the Trial on Indictments Act Cap 23 that a prima facie case was disclosed by the prosecution and put the accused to 20 his defence and proceeded to explain his rights. The accused choose to keep quiet and did not call witnesses. After the oral address, Court summed up the evidence and the law to the assessors. They returned their joint opinion.

#### 25 Ingredients of the offence of murder

The ingredients of murder are;

Death of a human being occurred $i)$

$\overline{2}$

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- $\overline{5}$ - ii) Death was caused by an unlawful act - iii) The unlawful act was actuated by malice aforethought - $iv)$ It is the accused who caused the unlawful death.

## The burden and standard of proof

$10$ Given that the accused pleaded not guilty and since he enjoys a constitutional presumption of innocence under article 28 (3) (a) of Constitution of Uganda, 1995, the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. Thus apart from insanity and a few statutory exceptions which are not applicable in the $15$ instant case, the burden of proof never shifts to the Defence. See: Woolmington Vs. Director of Public Prosecutions [1935] A. C 462; Chan Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54.

The Prosecution must, therefore, prove each and every ingredient of the 20 offence against the accused person beyond reasonable doubt. Proof beyond reasonable doubt, however, does not mean, proof beyond the shadow of doubt. Thus the degree of proof need not reach certainty because court could end up considering fanciful possibilities which would deflect the course of justice. What, therefore, is required, is strong evidence against 25 the accused person that leaves only a remote possibility in his favour. If court finds on the evidence that what a person is accused of, is possible, and not in the least probable, then the standard of proof would have been

HLADDIN

- met. Nothing short of that would suffice. See: Miller Vs. Minister of $\mathsf{S}$ Pensions [1947] All ER 272, at 373-374, Lord Denning. Therefore, the accused person does not assume any burden of proof, a position supported by section 101 (2) and section 103 of the Evidence Act Cap 6. The burden is always on the prosecution. See: Mahyara S/O Malakoni Vs. Reg. - $10$ (1955) 22 EACA 502. Where there is any doubt in the prosecution case, the accused takes the benefit of the doubt. Any defence, even if not raised by the accused, if there is evidence of it, the court must avail it to the accused person. See: Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991; Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of - 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi Vs. Uganda (1978) 15 HCB 216. An accused can, therefore, only be convicted on the strength of the prosecution case, and not because of the weakness of the defence. See: Ssekitoleko Vs. Uganda, [1967] EA 531. Therefore, even if an accused person leads no evidence, as it happened in the instant case, the court 20 must still, at the end of the case, ask itself: Is the legal burden discharged? Has the Prosecution proved the guilt of the accused beyond reasonable doubt? In a criminal case, all matters must be strictly proved. The State cannot, for instance, solely rely on concessions made by the accused person. See: FW Crowie Vs. R [1961] 1 EA 38 (CAN). The silence of the 25 accused cannot be used against him. In other words the accused's silence cannot be made the subject of comment by the Prosecution.

HUADON.

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- $\mathsf{S}$ At the end of the day the court has to evaluate all items of evidence on record. That is, both the prosecution evidence and the defence, if any. In Abdu Ngobi Vs. Uganda, S. C Crim. Appeal No. 10 of 1991 the Supreme Court stated: - $10$ "Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always 15 resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as

20 the person who was at the scene of the incidents as charged."

Having stated the law and the relevant principles of law, I now proceed to evaluate the evidence in light of the ingredients of the offence.

Hussolm.

#### Death of a human being. $\overline{5}$

Death of a human can be proved by oral evidence and as well as medical evidence. That is, evidence of those who knew the deceased and that the deceased died and was buried. Medical evidence can also do, that is, a post-mortem report. In this case, Osama Patrick (PW1) testified that he knew the deceased Arinaitwe Francis and that he died on 21^st July, 2022 at a garage where PW1 was working within Parombo Town Council. He died upon being assaulted by the accused person. PW2 (Ajolorwoth Moureen) an Auntie of the deceased testified to the same effect. The deceased died in the presence of both witnesses. According to PW2, the deceased was six years old. The post-mortem report, PEX 1 (b) shows the body of Arinaitwe Francis was identified to the examining Doctor, Langol Jonathan, by Okwonga Aldo Ngonzo, grandfather of the deceased. The defence conceded Arinaitwe Francis died. In my view the fact that it is alleged in the indictment that the deceased died on 23^rd July 2022 contrary what the prosecution witnesses said, that is, that he died on 21^st July, 2022, is inconsequential. The fact of death is clear. Thus in agreement with the assessors, I find that death of a human being has been proved by the prosecution beyond reasonable doubt. In any case, the Defence did not resist this ingredient.

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$15$

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#### $\mathsf{S}$ The death was unlawfully caused.

The law is that all deaths otherwise termed homicide is legally presumed to be unlawfully caused unless it was accidental or it is authorized by law. This was stated in **Gusambizi s/o Wesonga Vs. Republic [1948] 15 EACA**

- $65$ . Authorized death, for example, is that permitted under article 22 of $10$ the Constitution of Uganda, 1995, that is, where a convict sentenced to death by a competent court is killed in execution of death sentence. The other example, arguably, is where life of an unborn child is terminated in circumstances where the life of the mother is in great danger if her pregnancy is allowed to progress. - $15$

In the instant case, both PW1 and PW2 testified that the deceased was kicked in the neck by the accused person. The deceased had alleged that the accused owed shs. 1000 to a shop (a kiosk) within the garage at Parombo Town Council which was being superintended by the deceased 20 on behalf of his Auntie (PW2), the shop owner. The accused responded to the deceased, saying he had cleared the debt by paying PW2 (the auntie) direct. The deceased apparently did not believe the accused and uttered words which did not go down well with the accused. He insulted the accused, claiming, the accused had "licked his grandmother's vagina". This 25 prompted the accused to hit the deceased in the forehead and knee. This assault did not cause death. It is the subsequent events, which I shall discuss later, that caused death. According to both PW1 and PW2, when

Hatolin.

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- $\overline{5}$ PW2 (the auntie) intervened, she told the accused that he should not have hit the deceased but should have instead chastised to discipline him. When hit, the deceased cried and was being comforted by a one Openji at the time PW2 arrived at the scene. This fact was supported by PW1. PW2 then asked the deceased to move back to the shop. According to PW1, - $10$ before the deceased could go back to the kiosk which was within the vicinity, he stoned the accused. The accused responded by kicking the deceased in the neck once. The deceased was of course much younger and shorter than the accused. The deceased was six years old while the accused was said to be 28 years old. The deceased fell down and died. In 15 the circumstances I hold that the kick directed at the deceased's neck which caused his death was not accidental but intended. The kick did not happen unexpectedly. I thus conclude that the death of Arinaitwe Francis was neither accidental nor authorized by law. The Defence conceded that this ingredient has been proved beyond reasonable doubt, just as the assessors advised me. I agree with the assessors and hold that the 20

prosecution has proved this ingredient of the offence beyond reasonable doubt.

### Malice aforethought

25 This is the intention to cause death of a person or knowledge by the person that his act will probably cause death. See section 191 (a) and (b) of the Penal Code Act Cap, 120. So being a state of mind, intention is difficult to

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prove through direct evidence. Courts have, however, developed principles $\mathsf{S}$ that guide when considering whether or not there was malice aforethought. They are; whether a deadly weapon was used; the manner in which it was used to inflict the injuries; whether a vulnerable part of the body was targeted; whether the weapon was used in a ferocious $10$ manner that is, the nature of the blow; conduct of the accused person before and after the act. These guidelines were expounded in the case of $\mathbf{R}$ Vs. Tubere s/o Ochieng [1945] EACA 63.

Malice aforethought can thus be proved by circumstantial evidence or $15$ medical evidence such as postmortem report. However, courts have held regarding postmortem findings that a postmortem contains findings as to the state of the body, injuries found on it, and an opinion as to the cause of death. It is thus not capable by itself of proving malice aforethought, the existence of which is not a question of opinion but of fact to be determined 20 from all available evidence. Thus the test that malice aforethought can be inferred from part of the body inflicted by an unlawful act is more restricted to cases where a weapon has been used to commit a homicide. Thus it is important that a weapon used to cause death be described to the Doctor carrying the postmortem or be observed by the Doctor for the Doctor to be 25 able to state the effect of the weapon on the deceased in causing the injuries. This, therefore, guides court in estimating the *mens rea* of the accused. See: Francis Coke Vs. Uganda (1992-1993) HCB 43; Jospeh

Hatolu.

# $\mathsf{S}$ Rujumba Vs. Uganda (1992-1993) HCB 36; Nandudu Grace & another Vs. Uganda, Criminal Appeal No.04 of 2009 (SCU).

In the present matter, a nonlethal weapon was used. That is, a leg. The accused kicked the deceased in the neck once. The State counsel argued $10$ that the accused 'weaponized' his leg, a term, with respect, I find quite often misapplied by most prosecutors especially where nonlethal weapon is found to have been used to cause death. The Learned State counsel argued thus, even though used once, the leg constituted "a deadly weapon". With respect, the State counsel is stretching the use of the term $15$ too far. The meaning of 'deadly weapon' first of all is not used in the Penal Code Act in the context of murder. Rather the term is used in the Act in regard to the offence of aggravated robbery under section 286 $(2)$ and $(3)$ of the PCA. At any rate it has been held by the apex court in the land that where death is caused by the use of nonlethal weapon the inference of 20 malice is much less readily drawn than where a lethal weapon is used. See: Nandudu Grace & another Vs. Uganda, Criminal Appeal No.04 of 2009. See also: Yoweri Damulira Vs. R (1956) 23 EACA 501.

In the instant case given the manner in which the leg was used on the 25 deceased, I am not prepared to draw the inference of malice aforethought from his conduct. In my respectful view, the accused did not intend to cause the death of the deceased by his single kick. Of course a vulnerable

HlutoQue.

$\mathsf{S}$ part of the body was kicked but that alone is not sufficient for court to conclude in the way being suggested by the Prosecution. I thus find there was no malice aforethought. I agree with the assessors and the Defence counsel in that regard. Even if I had found otherwise, I have considered the circumstances of the death and I think there was provocation. The $10$ deceased first insulted the accused. The insult of course is not what triggered the kick as the accused's passion had cooled. What triggered the kick was the stoning of the accused by the deceased. The kick, from the evidence of PW1, was instantaneous upon the accused being stoned by the deceased. Under section 193 of the Penal Code Act, a person who 15 unlawfully kills another under circumstances that would constitute murder but does the unlawful act causing death in the heat of passion caused by sudden provocation and before there is time for the passion to cool, commits manslaughter. In this case, I find that the act of the deceased stoning the accused, moreover when the deceased had earlier 20 insulted the accused, deprived the accused of self-control and induced the accused to kick the deceased thus causing his death. The deceased's act of first insulting the accused in very foul terms and later stoning him, was of course wrong, and I think an ordinary man in the shoes of the accused in their local setting, could have reacted as the accused did. An ordinary 25 man would have been deprived of self-control and would have been induced to act as the accused. The circumstances of the assault on the deceased followed immediately the stoning of the accused. I think the fact

HLAOD.

$\mathsf{S}$ of provocation readily came out from the prosecution witness (PW1) and readily becomes available to the accused. I should add that provocation need not be strictly proved. There should only be such evidence of it as to raise a reasonable probability that provocation may exist. See: Festo Shirabu s/o Musungu Vs. R (1955) 22 EACA 454.

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In Maina Thuku alias Maina Nyaga Vs. R [1965] EA 496, the then Court of Appeal for East Africa opined, thus:

" the degree of provocation is a relevant factor in considering whether the heat of passion in an accused person, regarding him from the standard of the ordinary man, had had time to cool or whether the provocation would still be bearing on his mind so as to

deprive him of the power of self-control."

In the instant case, the defence of provocation is sustained. I find that the 20 accused was acting in the heat of passion having not regained self-control when he kicked the deceased once in the neck unfortunately causing his death.

# **Participation**

From my evaluation, there is abundant evidence that it is the accused who caused the unfortunate death of the young boy. The accused was placed at the scene of the crime through both PW1 and PW2 who were eye witnesses. They saw the assault. The Defence too concede to the fact of the

Hutodu.

assault. Thus in agreement with the assessors' opinion, I find that the $\mathsf{S}$ accused killed the deceased.

# Conclusion

Given my analysis and findings, I hold that the accused person is not guilty of murder because of the absence of malice aforethought. I accordingly

$10$ acquit him of murder. However, on the evidence, I find the accused guilty of manslaughter, and in agreement with the assessors, I convict the accused Owormungu Godwin of manslaughter, contrary to section 187 (1) and section 190 of the Penal Code Act Cap 120.

### $15$

Dated, signed and delivered at Nebbi this 18^th December, 2023.

George Okello<br>Huteau. 18/12/2023 **JUDGE HIGH COURT**

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## Judgment read in Court

10:00 AM 18^th December, 2023

#### 25 **Attendance**

Accused person in Court

Mr. Pirwoth Michael, on State Brief, for the accused

Mr. Acwica Samuel, and Mr. Naguyo Emmanuel, State Attorneys, for the Prosecution

30 Ms. Cwinyaai Grace, and Mr. Kapondombe Moris, Assessors Ms. Lilian Okech, Court Clerk/ Alur Interpreter

> Harolm. 18/12/2023 George Okello

**JUDGE HIGH COURT**

# SENTENCE AND REASONS FOR SENTENCE

On convicting the accused for manslaughter contrary to section 187 (1) and section 190 of the Penal Code Act Cap 120, the learned State Attorneys submitted that the convict is a first offender. However they asserted that the convict acted disproportionately considering the age of the victim. The State suggested that if the convict had for instance kicked the deceased in the leg, death might have been avoided. They also submitted that, according to the sentencing guidelines, the starting point for manslaughter is 15 years imprisonment. The State further submitted that the convict had earlier wished to plead guilty to manslaughter but the State rejected, a submission I find quite unfortunate because the State had all the competencies to assess its case file and prefer an appropriate charge then. The "wait and see approach" was a misuse of prosecutorial powers. This is most especially so when PW1 had made a statement at Police clearly indicating that the accused had been provoked and also there was a lack of malice aforethought. Be that as it may, the State proposed 05 years imprisonment.

In mitigation, the Defence counsel associated himself with the State, submitting that, since his client had wanted to plead guilty to manslaughter he can be taken not to have wasted court's time since it is the State that insisted on having him prosecuted for murder. Learned Defence Counsel was in agreement that 05 years imprisonment would be fair and would meet the ends of justice. In his allocatus the convict proposed 02 years imprisonment. He proffered that he is the one who took the victim to the clinic upon the assault, from where the victim died. He claims to have taken the victim together with a one Openji. Of course this information was not given during the hearing, the convict having exercised the right to silence. This revelation at sentencing, however, is in no way prejudicial to the convict.

In sentencing the convict, I am guided by paragraphs 25 and 26 of the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Direction, L. N No. 8 of 2013. Under paragraph 25, it is stated that, in non-capital offences, the court shall consider

Hurodin.

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imposing a sentence of imprisonment for life where any other custodial forms of imprisonment is inadequate. Paragraph 26 provides that the sentencing court may sentence an offender convicted of manslaughter (inter alia), to imprisonment for life; a custodial sentence other than imprisonment for life; or any other sentence authorized by law.

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The sentencing range for manslaughter specified in part II of the Third Schedule to the sentencing guideline is from 3 years up to imprisonment for life. The starting point is 15 years. Factors aggravating a sentence for manslaughter are provided for in paragraph 28 and the factors mitigating are in paragraph 29 of the Sentencing Guidelines.

In this case the neck of the victim was targeted by the convict, however, the injury was not repeated. The degree of intention to cause death is not apparent from the evidence and no weapon was used by the convict. There was no intention to cause bodily harm either. Courts should, however, while guided by the sentencing guidelines, in considering the appropriate sentence, defer to sentencing practices in past cases bearing similar resemblance, though not precedent. Past cases do afford material for consideration. See: Ogalo s/o Owoura Vs. R (1954) 21 EACA 270; Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993; Ninsiima Gilbert Vs. Uganda, C. A Crim. Appeal No. 180 of 2010.

Thus in Livingstone Kakooza Vs. Uganda, SC Crim. Appeal No. 17 of 1993 (supra), the Supreme Court reduced 18 year' imprisonment to 10 years where the appellant had spent two years on remand and had been convicted of manslaughter. In Ainobushobozi Venancio Vs. Uganda, CA Crim. Appeal No. 242 of 2014 where a 21 year old appellant had spent three years on remand, the court of appeal held that the 18 years imprisonment imposed by the High Court for manslaughter was excessive. The Court substituted it with 12 years' imprisonment. In Uganda Vs. Ijjo John, Crim. Session Case No. 0076 of 2017, where the convict, a 35 year old pushed the deceased during an altercation causing his death and was convicted of manslaughter, the High Court found 8 years' imprisonment to be an appropriate sentence.

Harol

In the instant case, life imprisonment is the maximum punishment at law. I, however, find there are no aggravating circumstances to warrant this court in imposing the maximum punishment under the law. In any case, it is a rule of practice that first offenders are ordinarily not punished with the maximum sentence. See: Livingstone Kakooza Vs. Uganda (supra). I also note the State lenient proposal of 05 years. In this matter, there is no past criminal record and the convict is a relatively young man at only 28 years thus capable of reforming and may still be useful to his country, something which a long custodial sentence would deprive him of. Therefore, considering the sentencing conventions and juxtaposing it with the sentencing range of 3 years to life imprisonment, and aware that the starting point is 15 years, but also considering the State leniency and further being aware that a young life was cut short yet it could have been avoided, I would find a sentence of 07 years and 06 days appropriate in the circumstances. Given that under article 23 (8) of the Constitution, 1995, and paragraph 15 (2) of the Sentencing Guidelines, the period spent on remand must be credited to a convict, I therefore deduct the 11 months and 06 days spent on remand from the 07 years and 06 days imprisonment, and therefore, hereby sentence the convict, Owormungu Godwin, to 06 (six) years and 1 (one) month imprisonment, starting today, $18^{\text{th}}$ December, 2023.

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The convict is hereby advised of the right to appeal to the Court of Appeal of Uganda, at Kampala, against both conviction and sentence, within 14 days from today, if dissatisfied.

Dated at Nebbi this 18^th December, 2023

HUADON 18/12/2023 George Okello **JUDGE HIGH COURT**

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