[1999] UGHCCRD 1

# **THE REPUBLIC OF UGANDA**

### **DEN AT MUBENDE THE HIGH COURT OF UGANDA HOL**

# **CRIMINAL SESSION CASE NO. 401 OF 1999**

### **UGANDA:::::::::: ::::: "PROSECUTOR**

# **VERSUS**

# *1.* **MUHAMED SERWADDA** )

# 2. ED1SA KITEGESI **)::::: ::ACCUSED BEFORE: THE HONOURABLE LADY JUSTICE S. B,** BOSS**A (MRS)**

# **JUDGMENT**

**The** accused persons who were step-son and step-mother respectively **were indicted** with the offence of murder. They were alleged to have murdered **their father and husband** respectively on the 23rd day of August 1996 at Lugazi village in **Mubendc District.**

A2 gave an unsworn statement. The prosecution called 4 witnesses and closed its case. **It** also **tendered an extra**judicial statement made by Al in which he implicated A2 and another **person who was not** arraigned in court. Al declined to give evidence on his behalf, opting **not to say anything.**

wife was death of the deceased. The deceased also had a son not bom of his said wives. **He was Al.** Al, A2, PW2 and PW3 all stayed in the two bedroomed house of **the deceased at Lugazi** The brief facts which were not contested were as follows: **The** deceased **was** married to two wives. The first wife was A2 who lived in his home in Lugazi village. **The second** Zabeeti Nassali who lived in another home of the deceased **at Kitaama. The** deceased was known as Yowana Sekamaana. He had 3 children with **A2. The first one was** Maniraguha Joseph PW2. The second one was Mukamaana Christine **PW3. The third child** whose name was not given was in prison with A2, having been bom **2 weeks before the** *■illage. The* deceased apparently also had a piece of land at another place **called Kasanda.**

On the fateful day, the deceased visited both his wives' homes. **He left the home of** Zabeeti Nassali on that Friday 23rd August 1996 at around lunch time **with a crate of soda** and returned to his home in Lugazi with A2. At around 8.00 p.m at night, he **went to** sleep. Before he **went to** sleep he directed his children PW2 and PW3 to go and sell his crate of soda at a wedding party in the village which took place on that very Friday. **The party** (Kasiki) **took** place at the home of Nantumbwe Mary. PW2 and **PW3 left their father the** deceased sleeping. They left Al and A2 at home with their father. **At** around **midnight that** same day, they returned from the wedding party. They had not sold all the sodas in **the** A2 asked them whether they had not seen their father on the way going to the **home of** his other wife with a mattress. PW2 and PW3 answered that they had not seen **him. Al insisted** that they go back to the wedding party and finish selling all the sodas. Both **PW2 and PW3** refused explaining that they were tired. The left Al standing outside. A2 **entered the house.** They went to sleep. The following day was Saturday and nothing **happened. On Sunday** which was the day after Saturday A2 told PW2 and PW3 to go **to her co-wife's place at** Kitaama and check on their father. They went there and talked to Zabeeti Nassali. **She told** them that their father had left her place on Friday at around 1.00 p.m **with a crate of soda.** They returned to their home at Lugazi and gave this information to Al and *A2. On* Monday Al proceeded to LC ¹ and reported that his step-mother Zabeeti Nassali **had caused the** company of the defence Secretary LC ¹ Lugazi (PW4). Godfrey Mutesaasira proceeded **to** arrest Zabeeti Nassali in the company of Al and took her to Mityana Police. **She was** detained there. Al made a report to the Police accordingly which was received by **PW1** crate. Al and A2 were standing outside in the court yard when PW2 **and PW3 returned.** disappearance of his father the deceased. The LC ¹ Chairman Sennono James in **the**

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A2 but A2 never went to the Police with him. He was arrested and detained **by PW1,** On Saturday the 31st of August 1996 PW1 got a police patrol vehicle. **He got a driver and** crew. He went to Lugazi village with Al and Nassali. He summoned the **LCs and all the** neighbours of the deceased. The traditional drum gwanga mujje was sounded. A2 **was not** deceased's body was buried in an old pit latrine behind the house. The **place was covered** by old banana leaves. Police ordered the people to dig up **the place. The body was** recovered from there on a mattress. It was examined by Dr. Muchunguzi. **It was identified** by one Mutesasira Coprium. It had a deep wound on the frontal area of **the head. It had** been cut by an axe. Its private parts had been cut off. The head was **completely smashed.** Al and A2 were arrested and Zabeeti Nassali released. It was the prosecution case that it is the accused who murdered the deceased. **Zf***police* Leonard Bossa **on** the 27th of August 1996. After she had been **detained for 2 days Al** *went* back to the Police to check on the progress of investigations. **He left the home with** at home when the Police arrived. She had gone with PW2 to get food near **the** forest. People gathered form all the next villages. Al led every body to the place **where the**

Before I examine the evidence, I am mindful of the following **that, murder is a** criminal offence which requires proof beyond reasonable doubt (see Kamasere **v. Uganda Cr.** Appeal No. 8 of 1997 (S. C)). This burden of proof lies squarely on the prosecution **and** never shifts to the accused person.

The elements to be proved are the following

- (i) That the deceased is dead - That his death was unlawful (ii)

(iii) That it was caused with malice aforethought

(iv) By the accused person

$\mu$ _Luckily, the death of the deceased is not contested. It is agreed. Similarly it is learned that it is unlawful, the post-mortem report having been tendered by consent.

There is also no doubt that it was caused with malice aforethought judging from the $w$ _wounds inflicted which were on the head, and the weapon used which was believed to be an $axe$ . All the witnesses who saw the body stated that the head was completely smashed. The deceased assailants clearly never intended him to live. They intended to kill him (See Tubere S/o Ochen v. R (1945) 12 EACA 63).

I have not the slight doubt therefore that these 3 elements have been proved beyond reasonable doubt. What remains for this court to decide is whether it is the accused who killed the deceased. I have looked at all the evidence in its entirety. After a thorough examination of all the evidence on record, for the prosecution and the defence, I can only come to one conclusion that there is abundant evidence that A1 committed the murder of his father and that A2 was on accessory after the fact. A1's extra-judicial statement willingly made is sufficient without more to convict him of the murder. But there is also his admission to the villagers, the evidence of PW2 and PW3 who heard A1 insist that they go back to sell sodas on the fateful night. There was the deliberate intention of A1 to cast suspicion on Zabeeti Nassali his other step-mother. Then A1 and A2 tried unsuccessfully to paint a picture that the deceased had left his house and gone to his second wife. Al led the Police and the villagers to the exact spot where the body was discovered. All these were not acts on an innocent man.

A2 pleaded compulsion as a defence. Admittedly there was no direct evidence linking A2 with the actual killing of the deceased. She stated that she saw A1 kill the deceased with another person. She tried to cover up for him by casting suspicion on her co-wife. She left with him when he was going to Police the second time although she never reached there.

both direct and circumstantial evidence pointing to Al as the killer of the *was* nevertheless there is abundant evidence that Al killed the deceased because of a grudge and that A2 assisted him to cover up the killing. I am aware of the law of accomplice evidence as stated in Kamau v R [1965] E. A at P.502, namely, that a passive attitude while a crime is being committed or following the commission of a crime with not ordinarily make a person a principal offender in the former case, or an accessory after the fact in the later case. *'deceased. M* in her own words admitted flashing the torch for the killers. Although common intention to kill the deceased has not been proved on the part of Al and A2,

compulsion and should be acquitted of murder. I agree with them in that respect. However I do not believe that she is entirely innocent. A person who aids or abets the commission of a crime or assists the guilty person to escape punishment is always an accomplice (See Kamau v. R supra). It was also held there that a mere non-reporting of a crime cannot make a person an accessory after the fact to that crime. The assessors have advised that A2 acted under

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Its my judgment that she acted under compulsion on the charge of murder. However the tried to shield Al from punishment. She went beyond a mere passive attitude and tried to cast suspicion on her co-wife. Her children reported that she left with Al the day after the murder to report to police although A2 never reached Police. I find her guilty as an accessory after the fact and convict her accordingly.

Also in light of the overwhelming evidence against Al, I convict him of the murder of his father as charged.

S. B. Bossa

Judge

# *f*

### RSA.

The convict A2 is a first offender. She has no court record vs. her. However she has been convicted of a felony. She was being an accessory after the fact and that is liable on conviction for 3 years. The convict was an accessory after the fact of the murder of her husband with who she has 3 children. One of them was a baby of only 2 weeks. She did not only have a duty to protect her husband. She also had a duty to protect her husband and children to provide them with all the necessaries in life of which the deceased husband was the sole provider. She deprived her children of a normal life. The young child has had to stay in prison with her. The others were too young to fend for themselves. She should have a tough sentence. I pray for the maximum sentence.

### Tusuubira.

It is true the maximum sentence is 3 years' under s. 377 of the PCA. The accused was arrested in August 1996. She has been on remand for 2 years and 1¹ months she has almost served the maximum sentence. She is carrying a young child on her back. She is a first offender. She looks repentant. I pray that court leniently decide her sentence and release her today.

# AL

I have nothing to say.

spent 3 years in prison. I have a child. I left other children at home. I had stayed with my husband for 16 years. I pray for.leniency. I pray for court to be merciful. I am repentant. I will never do it again. I have

# Reasons for sentence

A2 tried to cover up the murder of her husband with who she had children and with who she had been married for 16 years. However, she was a first offender. The fact that she feared for her life cannot also be ruled out. In the result I sentenced her to 2 years' imprisonment. The period she has spent on remand is to be taken into account. As for Al I sentence him to death as by law authorized. R/A explained.

S. B. Bossa

Judge 28/June/1999.