[2005] UGHC 70

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\li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8127856 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\b\fs24\insrsid12328147\charrsid8127856 THE REPUBLIC OF UGANDA \par IN THE HIGH COURT OF UGANDA AT KAMPALA \par CRIMINAL SESSION CASE NO. 029/2005. \par UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR \par VERSUS \par TURYAGABIRWA ABEERI :::::::::::::::::::::::::::::::::::::::::ACCUSED \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8127856 {\b\fs24\ul\insrsid12328147\charrsid8127856 BEFORE THE HON. MR. JUSTICE MOSES MUKIIBI \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8127856 {\b\fs24\ul\insrsid12328147\charrsid8127856 JUDGMENT }{\fs24\insrsid12328147\charrsid8127856 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8127856 {\fs24\insrsid12328147\charrsid8127856 \par }{\fs24\insrsid15605091\charrsid8127856 The accused, TURYAGABIRWA ABEERI alias }{\fs24\insrsid24916\charrsid8127856 M}{\fs24\insrsid15605091\charrsid8127856 OHAMED MULOKOLE, was indicted for the}{\fs24\insrsid24916\charrsid8127856 offence of murder contrary to S}{\fs24\insrsid15605091\charrsid8127856 ections 188 and 189 of the Penal Code Act. The particulars of offence alleged that on the 29}{\fs24\super\insrsid15605091\charrsid8127856 th}{\fs24\insrsid15605091\charrsid8127856 d ay of March,}{\fs24\insrsid24916\charrsid8127856 }{\fs24\insrsid15605091\charrsid8127856 200}{\fs24\insrsid24916\charrsid8127856 4 at Nabbanga village, Nyimbwa S}{\fs24\insrsid15605091\charrsid8127856 ub }{\fs24\insrsid24916\charrsid8127856 C}{ \fs24\insrsid15605091\charrsid8127856 ounty, in Luwero District, Turyagabirwa Abeeri alias Mohamed Mulokole unlawfully caused the death of one Kiiza Goretti. On arraignment the accused denied the indictment, whereupon the Prosecution called ten witnesses to prove its case.}{\fs24\insrsid12996972\charrsid8127856 \par }{\fs24\insrsid15605091\charrsid8127856 \par In his defence the accused gave sworn evidence but called no witnesses. \par }{\fs24\insrsid11871922\charrsid8127856 \par }{\fs24\insrsid15605091\charrsid8127856 The Prosecution case is as follows:- \par The deceased, Kiiza Goreti, was a wife to the accused. The couple were blessed with three children. For}{\fs24\insrsid11871922\charrsid8127856 some time the accused suspected that the deceased had }{\fs24\insrsid9310583\charrsid8127856 an extra marital }{\fs24\insrsid11871922\charrsid8127856 relationship with one Misango}{\fs24\insrsid9310583\charrsid8127856 ,}{\fs24\insrsid11871922\charrsid8127856 her workmate at Ndejje Secondary School. The deceased used to operate a canteen at the school. On 29/3/2004 at about 5.30 \endash 6.00 pm the accused confronted the deceased regarding the suspected relationship. A quarrel broke out in the accused \rquote s house. The accused picked a Panga and cut the deceased several times on the head and both arms. The deceased died due to excessive bleeding in the sitting room of the accused\rquote s house. At the same time the accused inflicted deep cut wounds on his three children. The accused escaped from home while holding a Panga. Deep in the night of 29}{\fs24\super\insrsid11871922\charrsid8127856 th}{\fs24\insrsid11871922\charrsid8127856 \endash 30}{\fs24\super\insrsid11871922\charrsid8127856 th}{\fs24\insrsid11871922\charrsid8127856 March, 2004 the accused reported himself at Bombo Police Station. He wa s in possession of a panga. He was arrested and detained. The Panga was exhibited. The accused was medically examined on police form 24 (Exhibit P. I)}{\fs24\insrsid9310583\charrsid8127856 . T}{\fs24\insrsid11871922\charrsid8127856 he accused was charged, taken to court, and thereafter remanded in prison.}{\fs24\insrsid16540787\charrsid8127856 }{\fs24\insrsid9310583\charrsid8127856 \par \par }{\fs24\insrsid16540787\charrsid8127856 The accused, in }{\fs24\insrsid9310583\charrsid8127856 h}{\fs24\insrsid16540787\charrsid8127856 is sworn evidence, denied committing the offence of murder. He put up two defences: an alibi and a grudge. \par He testified as follows:- \par On 29/3/2004 he left his home at 5.30 am in the company of his daughter Jackline }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid16540787\charrsid8127856 . He took her to school at Nalinya L wantale. From there he took a Taxi and went to Kyambogo village, in Masaka. He went }{\fs24\insrsid8142396\charrsid8127856 to see the burial site of his late father. He came }{\fs24\insrsid14164231\charrsid8127856 back the same day but reached Kampala at 8.30 pm. All taxis going to Ndejje had left. He took a Taxi heading to Luwe ro. He dropped off at Bombo at about 9.00 pm. He received news that his wife and children had been killed. He went to Bombo police station to inquire about members of his family. The police }{\fs24\insrsid5329533\charrsid8127856 said that they had been looking for him. They detained him. He was charged, taken to Luwero court and remanded in prison.}{\fs24\insrsid15605091\charrsid8127856 \par }{\fs24\insrsid5329533\charrsid8127856 \par He had a grudge with Nanteza (known as \'93Maama Patu\'94). Nanteza was keeping pigs and goats which destroyed his crops, such as Cassava and sweet potatoes. He asked Nanteza to build a structure f or her animals but she failed to do so. So he developed a grudge with Nanteza. That was why Nanteza implicated him in this case. Nanteza also told Jackline }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid5329533\charrsid8127856 }{ \fs24\insrsid9845955\charrsid8127856 what to say against him. Nanteza told court lies. \par \par The accused admitted that Gorette Kiiza was his lawfully wedded wife. }{\fs24\insrsid10754744\charrsid8127856 Turyagabirwa}{\fs24\insrsid9845955\charrsid8127856 Jackie is}{\fs24\insrsid5329533\charrsid8127856 his daughter. Nanteza is his neighbour. His house faces the west while Nanteza\rquote s house faces the East. There is a road in between running down to the bore hole. \par \par For the offence of murder the Prosecution has to prove, beyond reasonable doubt, the following essential ingredients, namely:- \par {\listtext\pard\plain\lang1033\langfe1033\langnp1033\langfenp1033\insrsid5329533\charrsid8127856 \hich\af0\dbch\af0\loch\f0 1.\tab}}\pard \qj \fi-360\li720\ri0\sl360\slmult1\widctlpar \jclisttab\tx720\aspalpha\aspnum\faauto\ls1\adjustright\rin0\lin720\itap0\pararsid8127856 {\fs24\insrsid5329533\charrsid8127856 That a human being by the name Gorette Kiiza is dead; \par {\listtext\pard\plain\lang1033\langfe1033\langnp1033\langfenp1033\insrsid5329533\charrsid8127856 \hich\af0\dbch\af0\loch\f0 2.\tab}That she died as a result of an unlawful act. \par {\listtext\pard\plain\lang1033\langfe1033\langnp1033\langfenp1033\insrsid5329533\charrsid8127856 \hich\af0\dbch\af0\loch\f0 3.\tab}That the unlawful act was accompanied by malice a forethought. \par {\listtext\pard\plain\lang1033\langfe1033\langnp1033\langfenp1033\insrsid5329533\charrsid8127856 \hich\af0\dbch\af0\loch\f0 4.\tab}That the unlawful act was committed by the accused person. \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid8127856 {\fs24\insrsid5329533\charrsid8127856 \par The burden of proof rests upon the Prosecution to prove the guilt of the accused person beyond reasonable doubt. \par See: WOOLMINGTON V. D. P. P. [1935] A. C. 462 \par at }{\fs24\insrsid5143821\charrsid8127856 P.481 Per Viscount SANKEY, L. C. }{\fs24\insrsid5329533\charrsid8127856 \par }{\fs24\insrsid5143821\charrsid8127856 SEKITOLEKO v. Uganda (1967) E. A. 531. \par \par It was conceded by Mr. Tusuubira Paul, learned Counsel for the defence on state brief, that a human being called Gorette Kiiza is dead. \par \par Indeed there was evidence of Nanteza Harriet (PWI), Fatuma Mugerwa (PW2), }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid5143821\charrsid8127856 Jackie (PW3), Kateete Vicent (PW4), and No. 25787 CPL. Tw}{ \fs24\insrsid9310583\charrsid8127856 inobusinguzi Silver (PW7) who }{\fs24\insrsid5143821\charrsid8127856 s}{\fs24\insrsid9310583\charrsid8127856 aw}{\fs24\insrsid5143821\charrsid8127856 the body of Gorette Kiiza. Kateete Vicent (PW4) testified that on 30/3/2004 he proceeded to Kasana Health Centre Mortuary. He collected the body of Kiiza Goret te, put it on a pick up and went with it to Bombo police station. I am satisfied, as were the assessors, that }{\fs24\insrsid7087567\charrsid8127856 the P}{\fs24\insrsid4480110\charrsid8127856 rosecution has proved beyond reasonable doubt that Gorette Kiiza is dead.}{\fs24\insrsid5143821\charrsid8127856 \par }{\fs24\insrsid4480110\charrsid8127856 \par }{\fs24\insrsid9310583\charrsid8127856 \par \par }{\fs24\insrsid4480110\charrsid8127856 On the second ingredient: \par That she died as a result of an unlawful act, the Prosecution}{\fs24\insrsid9310583\charrsid8127856 relied on the evidence of Nant}{\fs24\insrsid4480110\charrsid8127856 eza Harriet (PWI), Fatuma Mugerwa (PW2), }{\fs24\insrsid10754744\charrsid8127856 Turyagabirwa}{\fs24\insrsid4480110\charrsid8127856 Jackie (PW3), No. 25787 CPL. Twinobusinguzi Silver (PW7) and D/AIP Matovu Nathan (PW8). \par \par Our law presumes that every homicide is unlawful unless it was committed accidentally or in circumstances which show that it was excusable. See: GUSAMBIZI s/o WESONGA v. R (1948) 15 EACA 65. \par \par The law applies the substantial factor test, and, for juridical purposes the death will be imputed only to the severe injury. The question to be considered is this: \par \par Do the facts of the case lead to only one conclusio}{\fs24\insrsid7087567\charrsid8127856 n, that the death of the deceased}{\fs24\insrsid4480110\charrsid8127856 resulted from the injuries inflicted? \par Nanteza Harriet (PWI) testified as follows:- \par She ran and stood in Abeeri\rquote s court yar d, outside the Kitchen. She observed what was happening in the sitting room. She saw Abeeri cutting. He was holding a Panga. She saw him raising his hand and cutting twice. She saw that he was cutting a person}{\fs24\insrsid12999448\charrsid8127856 . She asked him why he was killing the wife. He did not answer. He came out holding a Panga which was smeared with blood. \par \par Fatuma Mugerwa (PW2) testified as follows:- \par \par Many people went to Abeeri\rquote s home. She stood in the door way. She saw a body of a woman lying on its back. The face of the b ody was full of blood. She saw a cut wound on the forehead. She recognized the body as that of the mother of Jackie, also known as Goretti. She saw Goretti\rquote s body mutilated into pieces. \par \par }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid12999448\charrsid8127856 Jackie (PW3) was aged 10 years, a child of tender years. The court conducted a voire dire. It was found that she understood the nature of an oath and the duty of speaking the truth. She was allowed to give sworn evidence. She testified as follows:- \par \par On 29/3/2004 at about 5.00 pm she returned from school and found her father and mother in the court yard quarrelling. }{\fs24\insrsid4480110\charrsid8127856 }{\fs24\insrsid12257185\charrsid8127856 Then she saw her father holding a panga and cutting her mother. The mother was lying down in t}{\fs24\insrsid9310583\charrsid8127856 he sitting room. The mother\rquote s h}{\fs24\insrsid12257185\charrsid8127856 and was cut into pieces. Her legs were cut. The witness shouted: \'93Here is Dad cutting my mother\'94.}{\fs24\insrsid4480110\charrsid8127856 \par }{\fs24\insrsid12257185\charrsid8127856 \par No. 25787 CPL. Twinobusinguzi Silver (PW7) testified as follows:- \par He }{\fs24\insrsid10754744\charrsid8127856 entered}{\fs24\insrsid12257185\charrsid8127856 the accused person\rquote s house, in the sitting room. He saw a dead woman lying on her back, in a pool of blood. Both arms were cut. She had a dee p cut on her face. Her jaw was cut and the teeth were outside. \par D/AIP Matovu Nathan (PW8) testified as follows:- \par He is attached to Bombo}{\fs24\insrsid12803438\charrsid8127856 Police station as the officer I}{\fs24\insrsid12257185\charrsid8127856 n charge, CID. He knows the accused. On 29/3/2004 at about 6.30 pm he received informa tion concerning an alleged murder at Ndejje. He rushed to Nabbanga village. He went to the accused\rquote s home. Nanteza (PWI) identified to him the dead body of a woman as that of Gorette Kiiza. He saw in the sitting room a body lying on its back. He examined the body}{\fs24\insrsid12803438\charrsid8127856 . The left upper arm had several}{ \fs24\insrsid12257185\charrsid8127856 cuts. The right upper arm had a cut. There was a deep cut across the nose and the month. There was}{\fs24\insrsid6947281\charrsid8127856 a cut on the top of the head. Both palms of the hands were cut. The body was removed from the scene by his police team. \par \par Dr. Tezitta John Bosco (PW5), a medical officer from Luwero Health Centre (4) Kasana testified in this case. He told court that he carried out a post mortem examination of the body on 30/3/2004. He testified that he prepared }{ \fs24\insrsid16060728\charrsid8127856 and signed a post mortem Report on police Form 48 B relating to Kiiza Gorette. \par However, during cross examination the Doctor was asked why he had described the deceased as a male. Under pressure of cross-examination the Doctor confessed that he had not carried out the P ost Mortem examination. He told court that a mortuary assistant with long experience saw the deceased\rquote s body and noted major injuries. It was the assistant }{\fs24\insrsid16081584\charrsid8127856 who gave information }{ \fs24\insrsid16060728\charrsid8127856 to the Doctor, and the latter used that information to compile}{\fs24\insrsid4213035\charrsid8127856 a post mortem Report. The Doctor with held the name of the mortuary assistant who had seen the deceased\rquote s body. The Doctor referred to that person as heyna. The court decided to exclude medical evidence from consideration in this case. \par \par The fact of death and the ca use of it can be established otherwise than by medical evidence. The absence of medical evidence as to death and the cause of it is not fatal. It is open to the Prosecution to produce and rely on other evidence to establish the fact of death and the cau se of it. \par }{\fs24\insrsid12400721\charrsid8127856 See: R}{\fs24\insrsid4213035\charrsid8127856 .}{\fs24\insrsid12400721\charrsid8127856 vs. }{\fs24\insrsid4213035\charrsid8127856 CHEYA and Anor. \par (1973) E. A. 500 (High Court, Tanzania). \par }{\fs24\insrsid2687227\charrsid8127856 \par In WAIHI and Another v. Uganda (1968) E. A. 278 (C. A) at page 280, }{\fs24\insrsid12400721\charrsid8127856 S}{\fs24\insrsid2687227\charrsid8127856 PRY, J. A. said: \par }{\fs24\insrsid6163802\charrsid8127856 \par \'93There may be other cases where medical evidence is lac}{\fs24\insrsid12400721\charrsid8127856 king but where there is direct }{\fs24\insrsid6163802\charrsid8127856 evidence of an assault so violent that it could not but have caused immediate death. \'94 In that case the court found that there was other evidence, }{\fs24\insrsid12400721\charrsid8127856 other than medical evidence, which pointed irresistibly}{\fs24\insrsid6163802\charrsid8127856 to an unlawful killing. \par \par }{\fs24\insrsid16081584\charrsid8127856 In the instant case several P}{\fs24\insrsid6163802\charrsid8127856 rosecution witnesses saw the deceased\rquote s body lying in the sitting room. The witnesses described the multiple cut wounds on the deceased \rquote s body, with loss of blood. The witnesses observed deep cut wounds on the deceased\rquote s head. In my view, the facts of this case lead to only one conclusion that the death of Goretti Kiiza resulted from the injuries inflicted on}{ \fs24\insrsid3695411\charrsid8127856 }{\fs24\insrsid6163802\charrsid8127856 her. The assessors were satisfied that the several cut wounds caused the deceased\rquote s death. I am in agreement with the assessors that the prosecution has proved beyond reasonable doubt that Gorette Kiiza died as a result of an unlawful act. \par \par On the third ingredient: \par That the unlawful act was accompanied by malice a forethought}{\fs24\insrsid3695411\charrsid8127856 , the P}{\fs24\insrsid6163802\charrsid8127856 rosecution relied on the evidence of Nanteza Harriet (PWI), Fatuma Mugerwa (PW2), }{ \fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid6163802\charrsid8127856 Jackie (PW3), No. 25787 CPL. Twinobusinguzi Silver (PW7), and D/AIP Matovu Nathan (PW8). \par \par Fatuma Mugerwa (PW2) told court that she saw a cut wound on the forehead, and the face of the body was full of blood. She saw the deceased\rquote s body mutilated into pieces. \par \par }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid6163802\charrsid8127856 Jackie (PW3) testi}{\fs24\insrsid16385703\charrsid8127856 fied that she saw her mother\rquote s h}{\fs24\insrsid6163802\charrsid8127856 and cut into pieces. She also saw the deceased\rquote }{\fs24\insrsid2315870\charrsid8127856 s legs cut. CPL. Twinobusinguzi Silver (PW7) testified that he saw both arms of the deceased cut. The deceased had a deep cut on her face. Her jaw was cut and the teeth were outside.}{\fs24\insrsid6163802\charrsid8127856 \par }{\fs24\insrsid2315870\charrsid8127856 \par D/AIP Matovu Nathan (PW8) testified that he saw the left upper arm of the deceased with several cuts. The right upper arm had a cut. The deceased had cut wounds across the nose and the mouth, and on top of the head. He saw both palms of the hands cut.

\par \par Intent to kill is an essential mental element in the crime of murder. \par See: Section 191 (a) of the Penal Code Act. \par Alternatively, it must be shown that the assailant, at the time of committing the act charged knew that, in all probability, it would be likely to cause death of some person. \par \par See: Section 191 (b) of the Penal Code Act. Malice or }{\fs24\insrsid3695411\charrsid8127856 the }{\fs24\insrsid2315870\charrsid8127856 lack of it can be determined by examining the nature of the weapon used, the manner in which it is used, the parts of the body affected and the conduct of the assailant before and after the act. \par See: R v. Tubere s/o Ochan (1945) 12 EACA 64. \par Where the weapon used is a }{\fs24\insrsid8718780\charrsid8127856 deadly}{\fs24\insrsid2315870\charrsid8127856 or lethal weapon, or where a lethal weapon is }{\fs24\insrsid8718780\charrsid8127856 used}{\fs24\insrsid2315870\charrsid8127856 savagely, or where the vulnerable parts }{\fs24\insrsid14577540\charrsid8127856 of the body of the deceased were affected by the injuries, malice a forethought would be more readily inferred by the court.}{\fs24\insrsid2315870\charrsid8127856 \par }{\fs24\insrsid14577540\charrsid8127856 See: Moses Kayondo v. Uganda, \par S. C. Criminal Appeal No. 11/92 (unreported). \par Otim Gabriel Ogola v. Uganda S. C. Criminal Appeal No. 16/93 (unreported). \par \par From the nature of the injuries which were seen}{\fs24\insrsid8718780\charrsid8127856 on the deceased\rquote s body by the P}{\fs24\insrsid14577540\charrsid8127856 rosecution witnesses I find }{\fs24\insrsid16385703\charrsid8127856 it }{ \fs24\insrsid14577540\charrsid8127856 reasonable to make an inference that the injuries were inflicted by an instrument made for cutting. \par \par In my view such an instrument would qualify to be called a deadly weapon. I find that the head of the deceased which was affected by the cut wounds was a Vulnerable part of the body. I have also considered the multiple cut wounds which were found}{ \fs24\insrsid8718780\charrsid8127856 on the deceased\rquote s body by the P}{\fs24\insrsid14577540\charrsid8127856 rosecution witnesses. In the circumstances I find that the assailant used an instrument made for cutting, a lethal weapon, savagely on the deceased. \par \par The assessors expressed a joint opinion that the Prosecution has proved beyond reasonable d oubt that the intent of the assailant was to kill. I do agree with that opinion. I think that the assailant, considering the violence he used, did an act which was calculated, in the }{\fs24\insrsid11480223\charrsid8127856 judgment of ordinary people, to cause death, and in that way caused the }{\fs24\insrsid14577540\charrsid8127856 deceased\rquote s d}{\fs24\insrsid11480223\charrsid8127856 eath. I am satisfied that the P}{\fs24\insrsid14577540\charrsid8127856 rosecution has proved beyond all reasonable doubt that when the assailant did the unlawful act on Goretti Kiiza he }{\fs24\insrsid16385703\charrsid8127856 knew that it was highly probable that it }{\fs24\insrsid14577540\charrsid8127856 would cause her deat}{\fs24\insrsid16385703\charrsid8127856 h. It is my view that malice a}{\fs24\insrsid14577540\charrsid8127856 forethought }{\fs24\insrsid6099084\charrsid8127856 has been established by the }{\fs24\insrsid11480223\charrsid8127856 P}{ \fs24\insrsid10492215\charrsid8127856 rosecution beyond reasonable doubt. \par On the fourth ingredient: \par That the unlawful act was commit}{\fs24\insrsid11480223\charrsid8127856 ted by the accused person, the P}{\fs24\insrsid10492215\charrsid8127856 rosecution relied on the evidence of Nanteza Harriet }{\fs24\insrsid11480223\charrsid8127856 (PWI), Fatuma Mugerwa (PW2), }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid10492215\charrsid8127856 Jackie (PW3), PC Abok Robert Komex (PW6) and CPL. Twinobusinguzi Silver (PW7). \par \par Nanteza Harriet (PWI) testified as follows: \par She resides at Nab}{\fs24\insrsid11480223\charrsid8127856 banga village, Ndejje, Nyimbwa Sub C}{\fs24\insrsid10492215\charrsid8127856 ounty, Luwero District. Her home is opposite the accused\rquote s home. Both homes ha ve court yards stretching from a common path running in between. The accused was staying with Gorette Kiiza, his wife, and they had five children. \par \par On 29/3/2004 at 5.30 pm the witness was in her kitchen cooking. Abeeri and his family members were at their }{\fs24\insrsid3614494\charrsid8127856 home. Abeeri called her and asked: \'93Maama (mother of) Mukiibi, aren\rquote t }{ \fs24\insrsid11480223\charrsid8127856 Nkejje (small fish) eaten as sau}{\fs24\insrsid16385703\charrsid8127856 ce?\'94 S}{\fs24\insrsid3614494\charrsid8127856 he answe}{\fs24\insrsid11480223\charrsid8127856 red that it could be used as sau}{ \fs24\insrsid3614494\charrsid8127856 ce; that it was good for }{\fs24\insrsid11480223\charrsid8127856 treating}{\fs24\insrsid3614494\charrsid8127856 childre}{\fs24\insrsid11480223\charrsid8127856 n afflicted by measles. Gorette}{ \fs24\insrsid3614494\charrsid8127856 Kiiza also asked the witnesses: \'93Maama (mother }{\fs24\insrsid607398\charrsid8127856 of)}{\fs24\insrsid3614494\charrsid8127856 Mukiibi is Nkejje}{\fs24\insrsid11480223\charrsid8127856 (small fish) used as sau}{ \fs24\insrsid3614494\charrsid8127856 ce?\'94 She answered: \'93Yes}{\fs24\insrsid13378510\charrsid8127856 \'94. She advised Gorette Kiiza}{\fs24\insrsid607398\charrsid8127856 }{\fs24\insrsid10777822\charrsid8127856 to mix it with ground nuts. The witness heard Abeeri and his wife con}{\fs24\insrsid11480223\charrsid8127856 versing. Then she heard Gorette}{\fs24\insrsid10777822\charrsid8127856 saying it was about 6.00 pm, and sh e wanted to prepare to go for work. Goretti used to operate a canteen in Ndejje Senior Secondary school. Soon after she heard Goretti say: \par \'93If Taata (father}{\fs24\insrsid1470517\charrsid8127856 of}{\fs24\insrsid10777822\charrsid8127856 ) Jackie you do not stop saying those things I will leave your home\'94. \par \par After about 10 minutes the witness heard the children crying, raising alarm, and calling her. She ran and reached Abeeri\rquote s court yard. She stood outside Abeeri\rquote s Kitchen. She could see the door to Abeeri\rquote s main house. The door was open. She could see inside the house. It was }{\fs24\insrsid1470517\charrsid8127856 about 6.00 pm. The main door was }{\fs24\insrsid10777822\charrsid8127856 facing the direction of the setting sun. She observed what was happen}{\fs24\insrsid16385703\charrsid8127856 ing in the sitting room. She saw }{\fs24\insrsid10777822\charrsid8127856 Abeeri cutting. He was holding a Panga. He was facing outside. She saw him raising his hand and cutting twice. She saw that he was cutting a person. She asked him why he was killing the wife. He did not answer. He stood up, looked at the witness, and came out. He was holding a Panga which had blood on it. He walked towards the witness. She ran away while rai sing an alarm. She ran to her home}{\fs24\insrsid13570851\charrsid8127856 with two of Abeeri\rquote s children: a boy called Robert Turyamuhebwa, and a girl called Jackline. }{\fs24\insrsid1470517\charrsid8127856 When}{ \fs24\insrsid13570851\charrsid8127856 she looked in the direction of Abeeri\rquote s house she saw Abeeri cutting a child. Abeeri cut the child in the face. The child fell down. Then he cut the child\rquote s hand. Jackline left the witness and ran back to assist the child who had been cut. While Jackline was lifting the child Abeeri pierced/stabbed the back of Jackline. Jackline brought to the witness the child who had been cut. The child had been cut on the hand, in several }{\fs24\insrsid1656628\charrsid8127856 areas}{\fs24\insrsid13570851\charrsid8127856 , and across the face, above the nose. \par \par Fatuma, wife of Mugerwa, answered the alarm. Mrs. Kagulire and aunt Suzan answered the alarm. Abeeri had entered his house. He came out of his house w ith a panga. He moved away at the side of his house. Kagulire came with a bicycle. He went to report to police. \par \par In response to cross-examination the }{\fs24\insrsid8396383\charrsid8127856 witness admitted that she quarrel}{\fs24\insrsid16385703\charrsid8127856 l}{\fs24\insrsid8396383\charrsid8127856 ed with Abeeri. Abeeri had chased away his children. The children ran to the witness\rquote home. The witness went to Abeeri\rquote s home. She told Abeeri that it was}{\fs24\insrsid15875272\charrsid8127856 wrong to chase children while holding a Panga. Abeeri had dismissed her as a person interfering with his affairs. This incident had occurred two years earlier. Abeeri had threatened to harm the witness. However, the two had since resumed friendship.

\par Fatuma Mugerwa (PW2) testified as follows:- She resides at Nabbanga village, Kitwalanyi, Nyimbw}{\fs24\insrsid4719132\charrsid8127856 a }{\fs24\insrsid1656628\charrsid8127856 sub county}{\fs24\insrsid4719132\charrsid8127856 , in Luwero District. She knew Kiiza Goretti. Her husband was}{\fs24\insrsid1656628\charrsid8127856 called Abeeri, the accused. On}{\fs24\insrsid4719132\charrsid8127856 29/3/2004 at about 5.00 pm she was coming from Ndejje. She was passing in the road near Abeeri\rquote s home. She heard children crying. She looked towa}{\fs24\insrsid16385703\charrsid8127856 rds Abeeri\rquote s house and saw Nant}{ \fs24\insrsid4719132\charrsid8127856 eza (PWI). \par Nanteza called her and told her what had happened. Nanteza suggested that they raise an alarm. \par \par The witness saw Abeeri emerge from his house. He was holding a panga. She saw Abeeri c}{\fs24\insrsid1656628\charrsid8127856 utting a young child on the face}{\fs24\insrsid4719132\charrsid8127856 . }{\fs24\insrsid1656628\charrsid8127856 The child fell down. He cut the child on the hand. }{\fs24\insrsid4719132\charrsid8127856 The witness felt frightened. She raised an alarm. They ran towards the play ground. Jackline was with them. Jackline ran back to Abeeri\rquote s home. She brought the child who had been cut. The child was bleeding. Mrs. Mugerwa, Mrs. Kagulire and Mr. Kagulire answered the alarm. Many other people gathered. They went to Abeeri\rquote s home. The witness stood in }{ \fs24\insrsid9110699\charrsid8127856 the door way. She saw a body of a woman lying on its back in a small sitting room. She recognised the body as that of the mother of Jackie called Goretti. Kagulire went to report to police. \par \par }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid9110699\charrsid8127856 Jackie (PW3) testified as follows:- She stays at Kitwalanyi village. The accused, Turyagabirwa Abeeri, is her father. On 29/3/2004 at about 5.00 pm she returned home from Ndejje Primary School. She was staying with}{ \fs24\insrsid16385703\charrsid8127856 her mother called Kiiza Gorett}{\fs24\insrsid9110699\charrsid8127856 e and her father at }{\fs24\insrsid15623870\charrsid8127856 Nabbanga village. She found her mother and father at home. The two parents were in the court yard. They were }{\fs24\insrsid7949550\charrsid8127856 quarrelling}{\fs24\insrsid15623870\charrsid8127856 . Then she saw her mother and father in the house. She stood in the door way. She saw her father holding a panga. He was cutting her mother. Her mother was lying down in the sitting room. She saw this and raised an alarm. She said: \'93 Here is Dad cutting my mother\'94}{\fs24\insrsid16385703\charrsid8127856 .}{\fs24\insrsid15623870\charrsid8127856 A neighbour, a lady, answered her alarm. The neighbour also raised an alarm. \par \par There was another child, aged about 2 years, called Kahangi Stephen. After the witness\rquote father had cut the mother Kahangi }{\fs24\insrsid7949550\charrsid8127856 went and touched the mother. The accused pushed Kahangi away. Kahangi fell down. Then the}{\fs24\insrsid16385703\charrsid8127856 accused cut Kahangi. Kahangi\rquote }{\fs24\insrsid7949550\charrsid8127856 s hand was cut off; he was also cut in the face near the nose. The witness went to rescue }{\fs24\insrsid10173679\charrsid8127856 Kahangi. The accused cut her at the back. The accused said: }{\fs24\insrsid16385703\charrsid8127856 \'93}{ \fs24\insrsid10173679\charrsid8127856 I am cutting you because of rumour mongering\'94. The Panga cut the witness. [she showed to court a scar on her left hand shoulder blade, about 4cms long]. That was the place the accused cut. \par \par The witness has a sister called Kokundeka Faith. She too was at home. The accused cut her on the face, near the nose. Kokundeka Faith had two fingers of the left hand cut; another finger on the right hand was also cut. The witness lifted Kahangi and took him to the playing field.}{\fs24\insrsid15623870\charrsid8127856 She saw her Dad running away to the forest. \par \par In response to cross examination the witness testified that a lady called Nanteza, a resident of Nabbanga village, came to answer her alarm at a time }{\fs24\insrsid1705000\charrsid8127856 when the accused was cutting her mother. Nanteza started raising an alarm. The witness also saw Mrs. Fatuma Mugerwa on that same day. \par \par CPL. Twinobusinguzi Silver (PW7) testified that on 29/3/04 he was the In charge of Ndejje }{\fs24\insrsid12674555\charrsid8127856 police post. At around 17.00 hrs he met Kagulire Grace on the way. Kagulire reported to him a case of murder. The witness knew Turyagabirwa Abeeri and his hom}{\fs24\insrsid10173679\charrsid8127856 e. So he went to the scene at N}{ \fs24\insrsid12674555\charrsid8127856 abbanga village, at the home of the accused. He entered the accused\rquote s house, in the sitting room. He saw a dead woman lying on her back, in a pool of blood. There were three children who had been cut. \par \par }{\fs24\insrsid8139599\charrsid8127856 No. 31727 PC A}{\fs24\insrsid16385703\charrsid8127856 b}{\fs24\insrsid12674555\charrsid8127856 ok Robert Komex (PW6) testified as follows:- \par }{\fs24\insrsid6257216\charrsid8127856 On 30/3/2004 at 1.15 am he was on night duty with W/PC Kayegi at Bombo police station. A man, who later identified himself as }{\fs24\insrsid10754744\charrsid8127856 Turyagabirwa}{ \fs24\insrsid6257216\charrsid8127856 Muhammad, came to the charge office, holding a panga. It was the accused. The witness asked the man who he was, and why he was holdi ng the panga. The accused was dressed in a white stripped shirt and a black trouser. He appeared to be sober. His shirt was wet. The witness took the panga away from him. It was sharp on one side. It had a wooden handle. It had a curved tip. It ap p eared to be new. The witness exhibited the panga in the exhibit book. The next morning he handed the panga to the store man, D/CPL. Makasi. [Two carbon copies of Exhibit slips were admitted as Exhibit P.3]. The accused had a dirty pair of trousers. Th e witness arrested him and put him in custody. \par \par The accused put up an alibi as his defence. First, I carefully noticed the accused\rquote s demeanour as he gave his evidence. It did not impress}{\fs24\insrsid349465\charrsid8127856 }{\fs24\insrsid6257216\charrsid8127856 me as that of a person speaking the truth. \par Secondly, the accused was cross examined. He told court that his father died a longtime ago; that he was buried at Kyambogo village, in Masaka; that it was his second time to }{\fs24\insrsid5447442\charrsid8127856 go there. He told court that on his}{ \fs24\insrsid11864414\charrsid8127856 }{\fs24\insrsid5447442\charrsid8127856 way back from Kyambogo village he arrived at Masaka}{\fs24\insrsid11864414\charrsid8127856 at 2.30 pm. He testified that he headed for Kampala, where he arrived at 8.00 pm. He told court that on his way to Masaka he left Kampala at 9.00 am and reached Masaka between 1.00 and 2.00 pm. He told court that he cleared bush on his father\rquote s grave, which took him one hour. He told court that he does not know how far Kyambogo village is from Masaka. I find the accused\rquote s claim that he travel}{\fs24\insrsid349465\charrsid8127856 l}{\fs24\insrsid11864414\charrsid8127856 ed from Masaka to Kampala in a Taxi from 2.30 pm to 8.00pm unbelievable.}{\fs24\insrsid6257216\charrsid8127856 \par }{\fs24\insrsid11864414\charrsid8127856 \par The accused testified that he got off the Luwero bound Taxi at Bombo. He found the taxis operating on the Ndejje route already gone. He told court that as he tried to get a Boda Boda to go home a cyclist }{\fs24\insrsid14305047\charrsid8127856 asked to know his name. Then the cyclist }{\fs24\insrsid11864414\charrsid8127856 told him that his wife and children had been cut; that the cy clist had seen them on their way to hospital. So the accused started tracing members of his family at Nyimbwa Hospital and Dr. Lwanga\rquote s clinic without success. Then the Boda boda}{\fs24\insrsid3875364\charrsid8127856 cyclist told him that the people he was looking for had been seen in the company of the police. So he (the accused) decided to go to Bombo police station to inquire. He reached Bombo police station at around 10.00pm.}{ \fs24\insrsid11864414\charrsid8127856 \par }{\fs24\insrsid3875364\charrsid8127856 P. C. Abok Robert Komex (PW6) told court that the accused reached Bombo police station charge office on 30/3/2004 at 1.15 am. \par }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid3875364\charrsid8127856 Jackie (PW3) must have been about Nine years in 2004. She was attending school at Ndejje primary school. I cannot imagine why it was necessary for the accused, on 29/3/2004, to take her from home, at night, at 5.30 am, to school. S he told court that on that day she returned}{\fs24\insrsid16385703\charrsid8127856 home from school at 5.00pm.}{\fs24\insrsid14305047\charrsid8127856 She}{\fs24\insrsid3875364\charrsid8127856 }{\fs24\insrsid14305047\charrsid8127856 told court that she }{\fs24\insrsid3875364\charrsid8127856 found her mother and father at home, in the court yard, quarrelling. Nanteza Harriet (PWI) }{\fs24\insrsid16385703\charrsid8127856 testified that she heard Gorett}{\fs24\insrsid3875364\charrsid8127856 e threatening to leave the accused\rquote s home because of what the accused had said to her. }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid15621392\charrsid8127856 Jackie (PW3) testified that she saw her mother and father in the house. She saw her father holding a panga; he was cutting her mother. Nanteza (PWI) testified that after about 10 minutes she heard children crying, raising alarm, and }{ \fs24\insrsid589886\charrsid8127856 calling her.}{\fs24\insrsid3875364\charrsid8127856 \par }{\fs24\insrsid589886\charrsid8127856 \par }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid589886\charrsid8127856 Jackie (PW3) told court that she raised an alarm and a neighbour, a lady, answered it. Nanteza (PWI) told court that she ran and reached Abeeri\rquote s court yard. Both Nanteza (PWI) and Fatuma Mugerwa (PW2) testified that they were toget}{\fs24\insrsid3022614\charrsid8127856 her with }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid3022614\charrsid8127856 Jackie (PW3) when they saw Abeeri cutting a child. }{\fs24\insrsid7765637\charrsid8127856 They both testified that Jackline ran back to assist the child who had been cut. }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{ \fs24\insrsid7765637\charrsid8127856 Jackie (PW3) named the child who was cut as Kahangi Stephen. She testified that she went to rescue Kahangi, and in the process the accused cut her back. Nanteza (PWI) testified about this also. Nanteza (PWI)}{ \fs24\insrsid16396279\charrsid8127856 , Fatuma Mugerwa (PW2) and }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid7765637\charrsid8127856 Jackie (PW3) all saw the accused holding a panga. Nanteza (PWI) and }{ \fs24\insrsid7672183\charrsid8127856 Tu}{\fs24\insrsid10754744\charrsid8127856 gabirwa}{\fs24\insrsid7765637\charrsid8127856 Jackie (PW3) actually saw the accused cutting Gorette Kiiza. Fatuma Mugerwa (PW2) told court that when she and other people went to Abeeri\rquote s }{\fs24\insrsid1979512\charrsid8127856 home soon after she saw the body of Goretti lying on its back in the sitting room. CPL. Twinobusinguzi Silver (PW7) supported the stories of PWI (Nanteza), Fatuma Mugerwa (PW2), and }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{ \fs24\insrsid1979512\charrsid8127856 Jackie (PW3) on where Goretti Kiiza\rquote s body was lying, and its appearance. CPL. Twinobusinguzi (PW7) supported the story of }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{ \fs24\insrsid1979512\charrsid8127856 Jackie (PW3) on the number of children who had been cut. \par \par I have found the accused\rquote s story inherently improbable. His demeanour, when he gave evidence gave a poor impression of the accused as a witness. On the other hand I found the Prosecution witness}{\fs24\insrsid16396279\charrsid8127856 es}{ \fs24\insrsid1979512\charrsid8127856 consistent and credible. Their stories fit in neatly each }{\fs24\insrsid16396279\charrsid8127856 with }{\fs24\insrsid1979512\charrsid8127856 the other. I believe them, and prefer their account of what happened.}{ \fs24\insrsid7765637\charrsid8127856 }{\fs24\insrsid1979512\charrsid8127856 \par \par The established law on alibi in Uganda is that when an accused person sets up an alibi as a defence, he or she does not assume any responsibi lity of proving the alibi. The Prosecution is under duty to negative the alibi by evidence. Such evidence may be adduced by calling witnesses either before the defence is put forward by the accused in his testimony or statement at his trial, or afterwar ds in rebuttal. \par \par }{\fs24\insrsid7672183\charrsid8127856 See: Kibale Ish}{\fs24\insrsid1979512\charrsid8127856 ma V. Uganda, S. C. Crim Appeal No.21 of 1998 (un reported).}{\fs24\insrsid11805555\charrsid8127856 I have carefully evaluated the evidence on }{ \fs24\insrsid3539366\charrsid8127856 record}{\fs24\insrsid11805555\charrsid8127856 as a whole. I have considered the Prosecution evidence showing that the accused person was at the scene of crime , and the defence evidence showing that the accused person was at Kyambogo village, Masaka on 29/3/2004. I find that the Prosecution has proved to the required standard that the accused was at his home at Nabbanga village (the scene of crime) at 6.00 pm, the material time. I find that the Prosecution has negatived the accused\rquote s alibi. The assessors expressed the opinion that the Prosecution witness}{\fs24\insrsid7672183\charrsid8127856 es}{\fs24\insrsid11805555\charrsid8127856 had placed the accused at the scene of crime.}{\fs24\insrsid589886\charrsid8127856 \par }{\fs24\insrsid3539366\charrsid8127856 \par With regard to the defence of a grudge the court has to take into account the existence of a grudge when }{\fs24\insrsid16396279\charrsid8127856 considering whether or not the P}{\fs24\insrsid3539366\charrsid8127856 rosecution witnesses have told the truth. I advised the assessors to consider the accused\rquote s defence of a grudge. The }{\fs24\insrsid16396279\charrsid8127856 assessors had to take }{\fs24\insrsid6844271\charrsid8127856 into account the }{ \fs24\insrsid3539366\charrsid8127856 existence of a grudge when considering whether or not Nanteza (PWI), Fatuma Mugerwa (PW2) and }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid3539366\charrsid8127856 Jackie (PW3) told court the truth.

\par }{\fs24\insrsid10227766\charrsid8127856 \par See: NTAMBI FRANCIS v. Uganda, Court of Appeal Crim. Appeal No. 19/98 (unreported). \par \par Nanteza (PWI) was cross examined about her rel}{\fs24\insrsid7672183\charrsid8127856 ationship }{\fs24\insrsid10227766\charrsid8127856 with the accused. She answered that she was a neighbour to Abeeri and that he and his family were her good friends. She also told court how she confronted the accused after he had chased his children while holding a panga. She explained that the incident had occurred about two years before 29/3/2004. She told court that on that occasion the accused had threatened to harm her. However, she said that she and the accused had resumed friendship. \par \par The accused testified that his grudge}{\fs24\insrsid13450679\charrsid8127856 with Nanteza (PWI) arose from her failure to build a structure for her pigs and goats to stop them from destroying the accused\rquote s crops. He told court that Nanteza (PWI) implicated him in this case because of this grudge. However, Nanteza (PWI) was not cross examined about her animals and the damage they had done to the accused\rquote s crops. \par \par The }{\fs24\insrsid16467024\charrsid8127856 question considered by the assessors and this court was whether Nanteza (PWI) could sit down with Fatuma Mugerwa (PW2) and }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{ \fs24\insrsid16467024\charrsid8127856 Jackie (PW3) and fabricate a story against the accused because of a grudge ove}{\fs24\insrsid6844271\charrsid8127856 r the movement of Nanteza\rquote s pigs}{\fs24\insrsid16467024\charrsid8127856 and goats. }{ \fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid16467024\charrsid8127856 Jackie (PW3) had just seen her real mother cut and she lay lifeless. An alarm was raised and people gathered in response thereto. Obviously the people who came would ask questions about the identity of the assailant. Did Nanteza (PWI) have enough time to sit and convince a shocked and emotional }{\fs24\insrsid10754744\charrsid8127856 Tugabirwa}{\fs24\insrsid16467024\charrsid8127856 Jackie to allege that it was}{ \fs24\insrsid10697154\charrsid8127856 her father who had cut her mother, whereas it was not true? I do not think Nanteza (P WI) did this, or even had time to do so. The assessors, in their joint opinion, said that they had ruled out any alleged grudge as the motive for implicating the accused. I do not believe the accused\rquote s story of a grudge with Nanteza (PWI) over goats and pigs. I think it was an after thought}{\fs24\insrsid9579696\charrsid8127856 ,}{\fs24\insrsid8139599\charrsid8127856 }{\fs24\insrsid10697154\charrsid8127856 otherwise}{ \fs24\insrsid1652668\charrsid8127856 the matter would have been put}{\fs24\insrsid24916\charrsid8127856 to Nanteza (PWI) in cross examination. \par \par Both assessors gave a joint opinion that the Prosecution had proved the fourth ingredient of the offence beyond reasonable doubt. In f ull agreement with the assessors I find that the Prosecution has proved beyond reasonable doubt that the unlawful act of killing the deceased was committed by the accused person. \par \par In the result I hold that Turyagabirwa Abeeri alias Mohammed Mulokole committed murder, and I, accordingly, convict him of murder contrary to Section 188 of the Penal Code Act. \par \par }{\fs24\insrsid10953850\charrsid8127856 \par }{\fs24\insrsid24916\charrsid8127856 MOSES MUKIIBI \par }{\b\fs24\insrsid24916\charrsid8127856 JUDGE \par }{\fs24\insrsid24916\charrsid8127856 16/9/2005. \par }{\fs24\insrsid9579696\charrsid8127856 \par \par \par }}