[2025] UGCA 194

### ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPBAL OF UGANDA T KAMPALA

[Coram: C. Gashirabake, Dr. Asa Mugenyi and JM. Musisi JJA]

### CRIMINAL NO. 361 OF 2019

(Appeal from the judgment of the High Court of Uganda at Entebbe (Jane Frances

10 Abodo J.) Criminal Case No. SC.388 of 2019 delivered on 28th October 20181

## WAMALA GODFRBY alias TROY :::::::::::::::::::::::: APPELLANT VERSUS

# UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## JUDGMENT OF THE COURT.

#### INTRODUCTION

This is an appeal from the decision of the High Court where the appellant was indicted for the murder of Ssekibogo Moses alias Mozey and convicted with the minor and cognate offence of manslaughter Contrary to Sections 188 and 189 (now Sections 170 and 172) of the Penal Code Act, Cap 120.

#### BACKGROUND

25 30 The particulars of the indictment were that the victim Ssekibogo Moses alias Mozey Radio was a renowned musician and resident of Kizungu Makindye Division. On the22l0l/ 2018, both the victim and the appellant were customers at abar in Entebbe town known as Debar belonging to a one Egesa (PW9). On the fateful day a one Musimire Pamela(PW2) who was at Debar Informed Egesa that the deceased Ssekibogo Moses would pass by. Later in the evening the deceased entered Debar together with his friends, Ebangit David Otim alias Washington (PWl) and Ategeka Mohammed. They joined Pamela and other people who were present including

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- Pamela's sister, Egesa George, Namugumya, Muwonge Hassan (PW4), Nakanwagi $\mathsf{S}$ Agnes, Rukera Xavier and the appellant among others. They sat around the table and started to enjoy drinks. Ssekibogo teased the owner of the bar that he was a poor man and that he could buy him a drink. He pulled out Shs. 100,000/= and ordered for a bottle of whisky. He served the liquor to everyone who was around in their respective glasses. Surprisingly, Ssekibogo thereafter splashed whiskey on the table $10$ - and those around him including, Egesa, Rakera and Pamela. This angered Egesa who asked Hassan to have Ssekibogo taken out of the bar. Pamela Immediately intervened and asked Egesa to take it calmly. She opted to take Ssekibogo out of the bar herself. Pamela took Ssekibogo out of the bar. The appellant who had been known to Pamela by face and who had also been around in the bar grabbed 15 Ssekibogo, held him up horizontally and threw him down on the ground with a loud bang. The victim suffered an injury on the head. The victim laid helpless and motionless on the ground. Immediately after the act, the appellant ran away. Pamela and Ategeka tried to grab the appellant as he was running away but they failed. On - noticing that the victim's condition was getting worse, he was picked up and rushed 20 to Emmanuel Medical Center at Abayita Ababiri by Pamela, Washington, Ategeka Mohammed and others. In the meantime, the bar owner Egesa requested his friend Rukera Xavier to accompany him to Entebbe Police station to report the incident and when they reached there, they were detained. At Emmanuel Medical Centre, the victim was referred to Nsambya Hospital and later to Case clinic where he died on 25 the 1^st February 2018. Before his death, the deceased was examined on PF3 at Case Hospital and the examination revealed serious brain injuries which were classified as grievous harm consistent with assault by gross manhandling - It was stated that since the occurrence of the incident the appellant went into hiding 30 and eluded police. When his identity was established, efforts to apprehend him were

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⁵ intensified through telephone tracking. Police retrieved his photographs from social media in a bid to have him arrested. His close associates namely, Nsimire Justine (PW5) and Andrew Sonko (PW6) were arrested.

10 On 4th February 2018, The appellant, after knowing that the deceased had been buried and fearing anticipated mob justice from the angry public, surrendered himself through his sister Kayaga Jackie Muwanga (DW2), who notified Katwe Police station which picked him from Kyengera on the roadside. He was then taken to Katwe Police Station and was later transferred to Entebbe Police Station

- ¹⁵ In his charge and caution statement, the appellant admitted having come into contact with the deceased and having witnessed the incident of assault that led to the eventual death of the victim and having disappeared from the time of the assault but denied participation in the offence. - ²⁰ At the hearing of the case the prosecution lined up 10 Witnesses and the appellant called 2 witnesses

While delivering her judgment, the trial Judge found that malice afore thought could not be established in the circumstances, although the appellant was responsible for the victim's death. She found the appellant guilty of manslaughter and sentenced him to a prison term of 14 years from which she deducted a period of one year eight months and twenty-six days which the appellant had spent on remand leaving a term of 12 years three (3) months and four (4) days


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## ⁵ GROUNDS OF APPEAL

The appellant appealed both the conviction and sentence on the following grounds.

- 1. The leamed trial Judge erred in law and fact when she convicted the Appellant on evidence marred with inconsistencies and contradictions and deliberate lies conceming who witnessed the assault of the deceased. - 2. The learned trial Judge erred in law and fact when she convicted the Appellant on evidence marred with inconsistencies and contradictions and deliberate lies concerning the light at the scene of crime. - 3. The learned trial Judge erred in law and fact when she convicted the Appellant basing on insufficient evidence of identification of the appellant at the material time of the assault. - 4. That the trial judge erred in law when she failed to state the reasons for departing from the opinion of the assessors in her judgement. - 5. In the alternative, that the leamed trial Judge erred in law and fact when she sentenced the appellant to 14 years' imprisonment which sentence was manifestly harsh and excessive.

## Submissions by Counsel for the appellant

On Ground l, it was submitted for the appellant that there were contradictions and inconsistencies in the prosecution case some of which were actually pointed out by the trial Judge but she considered them to be minor but were utter lies. Counsel for the appellant referred to the testimony of PWI that he was two meters away from the scene when the appellant lifted the deceased and dropped him on the floor, after which he ran away. That before he threw the deceased down the appellant ran passed him while shouting at the deceased. That he alleged to have witnessed the incident of assault of the deceased and that he never left the scene until the deceased was taken to hospital. The appellant contended that PW2's testimony contradicted that of


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- ⁵ PWI when she stated that " I left other people at the table when they were trying to calm the owner of the bar. In the process, I was taking Radio outside I heard somebody pulling Radio out from my hands because I was holding him by hand as we were walking ouL On turning around to look back, Radio was already down. " - This testimony, according to the appellant does not show that PW1 witnessed the - assault. The appellant contended that there was no credible eye witness to the assault and that even though PWI stated that he witnessed the appellant assaulting the deceased, it was an afterthought as it contradicts PW4's evidence. 10

The respondent invited court to uphold the reasoning in the case of Alfred Tajar v Uganda, [EACAI CA No. 167 of 1969 and find that the above contradictions and inconsistencies are major and go to the root of this matter which renders the evidence insufficient for a conviction. 15

On Ground2, the appellant submitted that the prosecution evidence was that the incident happened in the evening between 7:30 pm and 8:00 pm. PW2 stated that at the material time the sun was shining. The appellant contended that this is a lie because there cannot be sunshine at 7:00 pm. That contrary to this assertion, PW6 and the appellant said they left the parking to join the deceased and his friends inside the bar between 6:00 pm and 7:00 pm because it was dark and the lighting in the parking was dim. PW2 on the other hand stated that the source of light was a bulb, not tubes while PW6 who was more familiar with the place because he was a regular said the light was deem in the corridor.t PW6 the owner of the bar also said that the lighting was dim blue. PWI stated in his testimony that the lighting was from clear florescent tubes. The appellant contended that with the above contradictions, the testimony of PW2 who was with the appellant for only 3 hours in the dim light at the bar and was not known to him before could not have positively identified the 20 25 30


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⁵ appellant. The contradictions in the evidence were grave and went to the root of the case

It was funher submitted for the appellant that PW2 lied about her age when he stated that she was 45 years and then stated that he was 36. Such inconsistencies although not material to the case illustrated that PWI was an untruthful witness. ¹⁰

On Ground 3, the appellant submitted that the evidence of identification was insufficient to result into a conviction. That the prosecution adduced evidence of two identiffing witnesses but the trial judge opted to use the testimony of one identiffing

- 15 witness. Counsel relied on Abudala Nabulere v Uganda, ll979l HCB 76 and followed the conditions laid down therein to demonstrate how the trial Judge arrived at the wrong conclusion when she found that the appellant was positively identified as the assailant on the fateful day. - 20 25 Counsel stated that the appellant was not known to the identifying witnesses before this incident. Secondly, the evidence as to the source of the light in the corridor was marred by contradictions by the different prosecution witnesses. The appellant invited the court to believe the testimony of PW9, the owner of the bar and PW6 who was regular there who both testified that the light at the bar was dim and not sufficient for proper identification. Further, that the incident happened in seconds according to the testimony of PWl. Therefore, there wasn't enough time for the witnesses to properly identiff the assailant.

lt was further submitted that there was no evidence as to the distance between the alleged assailant and PW1. PW4 actually put PWI the identiffing witness away from the scene of crime. There was a lot of confusion. People were drinking alcohol. It 30


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⁵ was not established as to what level of intoxication they were. Or whether this intoxication could have impaired their recollection of the facts. According to PW1, the assailant was wearing a aap. He took off immediately after the assault. It was not possible therefore for PWI to have identified the assailant in those conditions. Counsel relied on the case of Kazarwa Henry v Uganda, l20l7l UG SC, Cr

Appeal No 17 of 2015 and Roria v Republic,1196Tl EA 583. 10

On Ground 4, counsel for the appellant submitted that; while the court is not bound to follow the opinion of the assessors. It is required by the law to state reasons for departure from their opinion. Counsel cited S. 82 (3) of the Trial on Indictments (TID) Act and stated that the omission to give reasons for departure from the opinion

of the assessors is a legal error which ought to be resolved in favour of the appellant.

On Ground 5, Counsel for the appellant submitted that the imprisonment of the appellant for a period of 14 years for the offence of manslaughter was manifestly harsh and excessive in comparison to decided cases and therefore contrary to the principle of uniformity in sentencing. He cited the cases of Uganda v Kamyuka Ivan HCSC No. 970 of 2016 which had circumstances similar to those of this case where the court awarded a sentence of 5 years, Elongat-Grace Naptal v Uganda, Cr. Appeal No. 499 of 2015 where a sentence of 20 years was reduced to 7 years and Ojok Michael v Uganda Court of Appeal Criminal Appeal No. 91 of 2011 where a sentence of 25 years was reduced to 8 years and Magala Ramathan v Uganda Supreme Court Criminal appeal No.01 of ZDl4,where a sentence of ⁷ years handed down by the High Court was upheld by this court and the Supreme Court. Counsel invited this court to reduce the sentence to an appropriate one of ⁵ years. 20 25 30


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## ⁵ Submissions by Counsel for the Respondent

Counsel for the respondent argued grounds land 2 together. She contended that the contradictions in the prosecution evidence if any were so minute that they could not affect the root of the prosecution case. She cited the case of Kato Kajubi Godfrey v Uganda, SCCA No. 20 of 2012 and Serapio Tinkasimire v Uganda, SCCA No. 27 of 1989. On the contradictions as to whether the lighting was provided by tubes as against bulbs, counsel stated it would not matter whether these were tubes or bulbs as long as it was electrical light and that both provide light.

On the question as to what time the incident occurred, Counsel submitted that Counsel for the appellant had lied to court about the testimony of PWI when he stated that the witness had testified that the incident took place between 7:30 and 8:00 pm and that the sun was still shining when he actually did not say that. Counsel relied on the record to show that the witness PWI stated that the sun was setting at the time he first arrived at the bar and the time was 6 pm. With regard to PWl's age when he stated that he was 45 and then again 39, counsel submitted that this was a minor discrepancy that would not affect the testimony of the witness who stated on oath that he was 36 years. 15 20

Counsel submitted that both PWl and PW2 saw the appellant throw the deceased down on the paved floor. That it would not matter who got to the deceased first. That the two witnesses gave afirst-hand account of the events both in their testimony and statements DEXHB | &.2 respectively. 25

With respect to the available light and its source on the fateful evening, counsel submitted that AWl told count that there was bright light while PW9 said that it was dim but you could identiff the person If you knew them. DWl told the court that the 30


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- ⁵ light was enough for one to see what was going on and that it is what he used to see the events that took place in the bar that night and also to identifo the people who were involved. Counsel requested us to conclude that there was enough light for the witnesses to identiff the appellant as the assailant that day. - On Ground 3, Counsel for the respondent submitted that the learned trial judge was alive to the principles laid down in the case of Abudala Nabulere & anor ^v Uganda, (Supra) at the proper conditions to follow in cases where the identification of the assailant is in question Counsel considered the following conditions. 10 - As to the length of time the appellant was under observation, counsel submitted that PWI came to the bar between 6:30 and 7pm while some of the witnesses including PW2, PW4, PW6, PW9 and DWI testified that they met at the place in Entebbe between 3 and 4 pm. That the deceased came to the bar at around 7 pm and the parties continued to chat while drinking until the occulrence of the incident. DWI also admits meeting the witnesses and sitting with them for over 5 hours. For all this time, the witnesses were in the same premises with the appellant and observing him. That the witnesses were also able to identiff the appellant by his voice when he asked the deceased why he was disturbing people and disrespecting the owner of the bar just before he lifted him and slammed him on the floor. 15 20

As regards the distance at which the witnesses observed the appellant, they testified that they were seated close to each other and that although they were not seated on the same table, it was easy for them to identifu the appellant as their tables were just about two meters apart.


s As to the nature and source of light, counsel for the respondent submitted that there was enough light for the witnesses to identify the appellant in whose proximity they had spent the better part of the evening. Counsel asserted that the appellant also admitted during cross-examination that it was possible for a person to identiff another person they were familiar with. He also admified that PWI was able to see 10 whatever went on as he was standing by the wall.

15 Counsel further submitted that the appellant's behaviour after the incident corroborated the evidence of his identification. That the appellant fled the scene of crime immediately after the assaulting the deceased and went into hiding. He left his power bank and headsets which were picked up from the scene of crime by PW6 who took them to PW5 who in turn sent them to the appellant through a taxi driver to a location unknown to PW5. Further, that the appellant who was a regular customer at De Bar never came back after the events of that day. His whereabouts remained unknown to everyone who knew him including his sister who at the time

20 of his arrest did not know where he was staying at Kyengera. Counsel cited the case of George William Ssimbwa v Uganda, CA No. 371 of 1995 in support of her argument.

On Ground 4, Counsel for the respondent submitted that after the trial, the learned zs trial Judge summed up the evidence for the assessors to enable them give their opinion. After that, the judge evaluated the evidence and delivered a well-reasoned judgement in which she acquitted the appellant of murder but convicted him of manslaughter, a minor and cognate offence. Counsel asserted that the reasons for departing from the opinion of the assessors are found in her judgement. In counsel's 30 opinion, S. 83 of the TID act does not specifu the form the reasons for departure


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⁵ must take. Counsel invited us to find that the trial Judge gave reasons in her judgement for departure from the opinion of the assessors.

In the altemative, counsel submitted that, even if the Judge had not complied with the provisions of S. 83(3) of the TID Act, it would not be fatal since it would not occasional a miscarriage of justice as the most important issue is the evaluation of the evidence which was done.

On Ground 5, counsel for the respondent submitted that the sentence handed down to the appellant was appropriate in the circumstances as the trial Judge considered both aggravating and mitigating factors and found that the aggravating factors outweighed the mitigating ones. While agreeing with the principle of uniformity and consistency of sentence, counsel argued that the court should bear in mind that the circumstances under which cases are committed are not necessarily identical. That the court should consider the impact of the deceased's death on his family, friends, 15

music fans and the country at large. She cited the case of Byaruhanga Okot v Uganda, CACA No. 078 of 2010. 20

Counsel further argued that the sentence of 12 years and 3 months imposed on the appellant is within the sentencing range and there is no justification for interfering with it. She cited cases where more severe sentences have been handed down. The sentences range from 12 years to 23 years' imprisonment for the offence of manslaughter. Counsel for the respondent invited us to dismiss the appeal and uphold the conviction and sentence of 12 years and 3 months. 25

## ANALYSIS BY THE COURT.


⁵ The first appellate court has the duty to re-appraise all the evidence adduced before the trial court and come to its own conclusion of fact and law, while making allowance for the fact that it did not see or hear the witnesses testifo. See Rule 30 (lXa) of the Judicature (court of Appeat Rules) Directions, S. I 13-10 and Kifamunte Henry v Uganda, Supreme Court Criminal Appeal No.70 of 1997.

Grounds 1,2 and4 are identical' intertwined. They all pointto the question as to whether the trial Judge could convict the appellant basing herself on the prosecution evidence which was insufficient, full of contradictions and inconsistencies. We shall therefore handle them as one ground. They are;

- Ground l: The leorned Triol Judge erred in law and fact when she convicted the Appellant on evidence marued with inconsistencies and contradictions und deliberute lies concerning who witnessed the assault of the deceased. Ground 2: The learned Trial Judge erred in law and fact when she convicted the 15 - Appellant on evidence msrued with inconsistencies and controdictions and deliberute lies concerning the light ut the scene of crime. Ground 3: The learned Triol Judge erred in law ond fact when she convicted the appellant basing on insufficient evidence of identiJicotion of the appellant at the moteriul time of the assault. 20 - The conditions for identification were laid down in the case of Abudala Nabulele & Another v Uganda, 1979 HCB 77 which followed Abdalla Bin Wendo and another v R (1953)20 EACA 166; Roria v Republic [19671 E. A 5583 which was followed in Bogere Moses and another v Uganda, SCCA I of 1997 which states that: 25 - 30

"Where the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence

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⁵ disputes, the judge should worn himself and the assessors of the special need for caution before convicting the accused in reliance on the corcectness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, and even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances inwhich the identification come to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused. ... When the quality is good as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused before, a Court can safely convict even though there is no other evidence to support the identification evidence, provided the Court adequately warns itself of the special need for caution". See also, Twongo Saulo a.k.a Masaba v Uganda, SCCA No. 34 of 2018.

The appellant faulted the testimony of the prosecution witnesses in particular PWl(Ebangeti David Otim) and PW2 (Musiimire Pamela) that they contradicted each other as to how the victim was affacked and the person who assaulted him. The evidence adduced by these two witnesses showed that they were both at the scene of crime and they witnessed the appellant assault the deceased. PW2 stated that she offered to escort the deceased from the bar when PW9 who was the owner of the bar ordered him out. That while on the way out, the appellant came from behind and pulled the deceased away from her, lifted him up and threw him down after which he fled the scene. When asked how she was able to identiff the appellant, PW2 consistently stated that she had spent the whole afternoon with the appellant and even talked to him before the incident. She also knew how he was dressed. PWI also testified that he saw the appellant pull the deceased away from PW2 and slamming 20 25 30


⁵ him on the floor after which he fled the scene. The appellant was seen running by both PWI and PW2

PWI stated that he was able to identiff the appellant as the assailant because he had been sated on the table next to where the appellant was seated with PW2, PW9, the deceased and other people. PW4 who was also well known to the appellant confirmed his presence that day at Debar in the company of PW2. He was able to aarry the deceased to PWI's car and they rushed him to hospital, but before that he spoke to PWl who informed him that he had tried to chase the man who had thrown the deceased on the ground. The man turned out to be the appellant. PW9 the owner of the bar also confirmed the appellant's presence that day at the bar and his involvement in the brawl. This therefore confirms that the identiffing witnesses spent quite enough time with the appellant as to be able to positively identiff him as the assailant that evening. 15

Both PWl and PW2 stated that they were able to positively identiff the appellant because there was enough light to enable them do so. Contradiction as to whether the source of light was a bulb or a florescent tube, this would be immaterial since all the witnesses including the appellant agreed that there was ample light for them to be able to identif,i the appellant with whom they had been for the better part of the evening. 25 20

The appellant who testified as DWI also confirmed his presence that evening and that he was in the company of the deceased PWl, PW2, PW9 who confirmed being at De Bar that evening. He stated that he saw the deceased and PW1 between 6pm and 6:30 pm believably at a time when there is still natural light on an ordinary day. When asked in cross-examination in whose company he was, the appellant

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- ⁵ mentioned that he was with "Washington, Mowzey (deceased), another gentleman who was next to Moses, Egesa (PW9) and Hassan (PW4)." He stated that there were 7 people all in all. There is therefore enough evidence on record to show that the identiffing witnesses were in the appellant's company for enough period of time, part of which was during day light, for them to be able to positively identify him as the deceased's assailant. It is not understood why the trial Judge relied on the 10 - evidence of only one identi&ing witness especially after evaluating the testimonies of both PWI and PW2 that, they both managed to positively identiff the appellant as the assailant. - The testimony of the prosecution witnesses was corroborated by the behaviour of the appellant who disappeared from the scene immediately after the crime was committed. Prior to the incident, he was a frequenter of Debar but went into hiding immediately after the deceased was assaulted. He could not even retum to pick his property, a headset and power bank, which he left at the scene but was only able to contact PW6 the day after the incident, to retrieve them for him. PW6, handed them over to PW5 who herself placed them in the hands of a taxi driver for delivery to the appellant. The appellant went into hiding at a place which he called his home in Kyengera which was not known even by his own sister DW2. 15 20 - The appellant failed to raise reasonable doubt in the evidence of the respondent's witnesses as to why he behaved the way he did after the deceased was assaulted. The trial court was right not to believe his testimony. 25

In Remigious Kiwanuka v Uganda, SC Crim. Appeal No.4l of 1995, it was held that: 30

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⁵ "The disappearance of an accused personfrom the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearancefrom the area is incompatible with innocent conduct of a person. "

In Abdu Ngobi v Uganda, S. C. Cr. Appeal No. 10 of 1991, the Supreme Court gave caution as to how evidence should be weighed as follows, 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 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 f the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can befound to have correctly identified the appellant as the person who was at the scene of the incident as charged. "

We find that the evidence adduced by the respondent's witnesses was cogent and discharged the burden placed upon the prosecution. The trial Judge was therefore safe to rely on it while convicting the appellant. The contradictions and inconsistencies were minor and the trial Judge considered them as such. In Kato Kajubi Godfrey v Uganda. SCCA No.17 of 20l2,the Supreme Court decided that: 25

Not every inconsistency will result in a witness' testimony being rejected. Minor inconsistencies will not usually have the effect of having a witness' evidence rejected unless court thinks that it points to deliberate


⁵ untruthfulness. Only grave inconsistencies unless satisfactorily explainedwill usually result in the evidence of a witness being rejected.

The inconsistencies in the testimony of the respondent's witnesses as to the source of light at the scene of crime, the words deemed to have been spoken by the appellant before he slammed the deceased on the ground and as to who got to the deceased first when he was on the ground are not so fundamental as to discredit the positive

Grounds 1,2 & 3 of the appeal must fail.

identification evidence that was adduced by them.

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## Ground No. 4: That the trial judge erred in law when she failed to state the reasons for departing from the opinion of the Assessors in her judgement.

Before judgment was read, the trial judge asked for the opinion of the assessors which

- 20 they gave as follows; - 1't ingredient proven beyond reasonable doubt. - 2nd ingredient proven beyond reasonable doubt. - 3'd ingredient proven beyond reasonable doubt - 4th ingredient was not proven - 2s After the assessors gave their opinion, the trial judge delivered her judgment and decided that the appellant was responsible for the victim's death thus confirming that the 4th ingredient was proved.

It was submitted for the appellant that the absence of reasons for departing from the opinion of the assessors is a legal effor that ought to be resolved in favor of the 30

s appellant. Counsel for the appellant cited Section 82(3 I of the Trial on Indictments Act Cap 23 (now Cap.25) which provides that:

"Where the judge does not conform with the opinions of the moiority of the Assessors, he or she shall state the reusonsfor his or her departingfrom the opinion in his or her judgment."

A careful perusal of the judgment of the High Court shows that the trial judge went at length to evaluate the evidence of both the prosecution and defence witnesses before arriving at the decision that, it was the appellant who caused the unlawful death of the victim. In doing so, she gave reasons for her finding on this ingredient.

- 15 20 The learned trial Judge was able to show that PWl and PW2 ably identified the appellant as the assailant. In his testimony, PW1 gave the physical appearance of the person he saw that evening assaulting the deceased. He had a beard, was tall and muscular, a description that was echoed in the testimony of PW7, the investigating officer when he stated that when he arrested the appellant he matched the description that was given to him by PW1 that, the appellant was fluent in English he was tall - 25 and brown with beards. PWI further stated that there were lights on the way in and out of the corridor which created enough light for him to be able to identiff the appellant and that he was standing only two meters ahead of the appellant when he lifted the deceased and slammed him on the ground. The appellant himself during cross-examination, confirmed that PWI was standing against the wall from where he could see what was happening.

The leamed trial Judge further considered the testimony of PW2 who stated that the appellant pulled the deceased away from her as she was trying to lead him out of the bar. When she looked behind, the deceased was on the floor and she saw the appellant running away. Although she had never seen the appellant before that day,

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⁵ she could identiff him thoroughly well as they had been in company with each other that evening from about 3 pm until night time.

The trial Judge also considered the circumstantial evidence pinning the appellant to the offence especially his conduct immediately after the crime was committed. We have already considered the testimony of various witnesses especially PW5 and PW6 who aided the appellant to deliver to him his headsets and power bank the day after the deceased was assaulted. We need not repeat it here.

After a careful evaluation of evidence, the trial Judge concluded as follows;

- "Having warned myself of the danger of convicting on evidence of a single witness, I find that the accused person who ploced himself at the scene of crime was properly identfied by PWI as being the one who assaulted the deceased. I respectfully disagree with the assessors. Ifind that this ingredient has been proved beyond reasonable doubt". - It is evident therefore that the trial Judge indeed considered the opinion of the assessors and departed from it after evaluating the evidence. It is also clear that she considered the opinion of the assessors before deciding each ingredient of the offence. 20 - It would still not be fatal if the trial Judge had not commented on the opinion of the assessors as it was held in Mwita s/o somo v R, 1948 EACA 40, the appellant was convicted of unlawfully attempting to strike the complainant with an affow to resist lawful arrest contrary to Section 222 (2) of the Tanganyika Penal Code as it was. At the trial, the two assessors gave the opinion that the appellant did not fire the arrow. The trial Judge had no doubt on the evidence as to the appellant's guilt but made no 25 30

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⁵ reference to the opinion of the assessors in his judgment. On appeal, the East African Court of Appeal found that

> "The story told by the prosecution witnesses was q consistent one and although there was contra evidence for the defence, the learned judge who saw the witnesses and had the opportunity of studying their demeanour accepted the Crown's story and rejected that of the defence. This he was fully entitled to do and the responsibility for doing so was his. It is true that both the assessors came to a dffirent conclusion but the learned Judge was under no obligation to accept their opinions and in fact could not do so unless in agreement wtth them."

- The court however further found that "ln all cases where a trial Judge comes to a contrary finding on the facts to the opinion unanimously shared by the Assessors, we think it o good practice for the Judge to state in his judgment reasons for his agreement". 15 - 20 The omission by the trial judge to state reasons for disagreement with the opinion of the assessors did not occasion a miscarriage ofjustice as, in our view, it never affected her findings based on the evidence adduced before her. It is further noted that the assessors did not themselves give reasons for their opinion which would have formed the basis for her to expressly disagree. - 25

It has also not been shown how the appellant was prejudiced by the omission of the Judge to give reasons for departure from the opinion of the assessors.

This ground of appeal therefore fails


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⁵ Ground 5: The learned trial Judge erred in law and fact when she sentenced the appellant to 14 years' imprisonment which sentence was manifestly harsh and excessive.

The trial Court sentenced the appellant to 14 years' imprisonment from which was 10 deducted a period of 1 (one) year and eight months which he had spent on remand. He was sent to serve twelve (12) years three (3) months and four (4) days. It is this sentence that the appellant wishes to challenge as being harsh and manifestly excessive. Counsel for the appellant relied on the cases which we have referred to above to suggest a sentence of 5 years as being reasonable in the circumstances. On 1s the other hand, the respondent asked us to maintain the sentence of 12 years and ³ months as it is within the sentencing range.

In the case of Kiwalabye Bernard v Uganda, SCCA No 143 of 2001, it was held that,

20 25 "An appellate Court is not to interfere with the sentence imposed by a trial Court which has exercised its discretion on sentence unless the exercise of the discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscarriage ofjustice or where a trial Court ignores an important matter or the circumstances which ought to be considered while passing the sentence or where the sentence is imposed on a wrong principle"

It was also held in the case of Biryomumaisho Alex v Uganda, CA Cr. App No 464 of 2016 that:

"Interfering with the sentence is not a matter for emotions but rather one of law. (Jnless it can be proved that the learned trial Judge /louted any of the

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⁵ principles of sentencing, then it does not matter whether the members of this Court would have given a dffirent sentence if they had been the one trying the appellant".

Sentencing in cases of manslaughter should be in accordance with the Third schedule of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions 2013. According to the Guidelines, the starting point for manslaughter is 15 years' imprisonment. The sentencing range is 3 years' imprisonment to life imprisonment being the maximum. In order for the court to arrive at an appropriate sentence the court must take into account the factors mitigating or aggravating sentence in every particular case. 10 15

Before sentencing the appellant, the trial judge considered both aggravating and mitigating factors. She took into account the degree of injury that was inflicted on the deceased, the fact that it was inflicted on the head and also that the deceased was

thrown on a concrete floor, which caused him grave internal injury that occasioned his death. 20

On the other hand, she considered that the appellant was a first offender and a young man aged 30 years who was capable of reforming. She then handed down a sentence of 14 years which she considered reformative She deducted the period spent on remand leaving a period of 12 years, three months and 4 days. We cannot fault her on the exercise of her discretion in that regard.

With regard to the principle of uniformity or consistency of sentence, we have considered the authorities supplied by both counsel and others, upon which this court has based itself in maintaining or reducing sentences where need be. We have 30


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- ⁵ compared the cases where lighter sentences were given and those where heavier sentences were handed down. The case of Uganda v lvan Kamyuka, (supra) where the accused was given a five (5) year sentence, the Court considered that there was provocation and that the accused was intoxicated. In Elungat Grace Naptal v Uganda (supra), the appellant killed the victim in a fight between the two. In - Magala Ramathan v Uganda,l20l7l UGSC 34, September 2017, the Supreme court confirmed a cumulative sentence of 14 years with 7 years for each of the two counts of manslaughter. It was also considered that the offender was provoked. We have not been persuaded to follow those decisions to reduce sentence in this case as in all of them, the offenders were able to prove provocation and thus the light sentences. In this particular case, the offender did not plead provocation and neither was any evidence adduced to that effect. 10 15

On the other hand, there are cases where the offenders have been given higher sentences for the same offence. In Kizito Enock v Uganda, Criminal Appeal No ²⁸⁸of 2014,120181UGCA 53 (30 July2018), where the appellant was convicted of manslaughter, and sentenced to 23 years, this court found the sentence excessive and reduced it to 18 years. In Okwaimungu Dominic v Uganda, CACA No. 0036 the appellant was convicted by the High Court for the offence of murder and sentenced to 2l years' imprisonment. On appeal to this court the conviction was quashed and the sentence set aside. This Court convicted the appellant of manslaughter and sentenced him to l5 years' imprisonment. In Ahimbisibwe Solomon v Uganda, CACA No. 0132 of 2010 a sentence of l6 years was reduced to 13 years. In Simon Amodoi v Uganda, SCCA No 14 of 1994, the supreme Court quashed a conviction of murder and substituted it with manslaughter and imposed a prison term of ¹² years. 20 25 30

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- ⁵ We therefore find the sentence of 12 years,3 months and 4 days imposed by the High Court not manifestly harsh and excessive. We also find that it is consistent with sentences in other similar cases as shown above. We therefore uphold it. In the final result, this appeal is dismissed. We so order. - ¹⁰Dateflrsigned and delivered this ei^ day of ....... ²⁰²⁵

\$ ""P'. I

Christopher Gashirabake

Justice of Appeal t

Dr

Justice ofAppeal

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J Musisi

Justice ofAppeal

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