Uganda v Kiyemba & Ors (Criminal Session Case No. 56 of 2018) [2019] UGHCCRD 50 (25 June 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO. 56 OF 2018 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION VERSUS KIYEMBA RONALD SEMPIJJA SIMON::::::::::::::::::::::::::::::::: ACCUSED SSENYAMA STEPHEN BEFORE: HON. MR. JUSTICE EMMANUEL BAGUMA JUDGMENT Kiyemba Ronald, Sempijja Simon and Ssenyama Stephen are indicted with the offence of murder contrary to sections 188 and 189 of the Penal Code Act Cap 120. It is alleged that Kiyemba Ronald, Sempijja Simon, Ssenyama Stephen and others still at large during the night of 23 September 2017 at Buwama Sub-county in the Mpigi district with malice aforethought unlawfully caused the death of Namaganda Annet. On arraignment, the accused persons pleaded not guilty and by that plea, they set in issues of all the essential ingredients of the offence charged and prosecution must prove them.  In a nutshell, that meant that each and every ingredient of the offences charged had to be proved beyond reasonable doubt in order to secure a meaningful conviction of the accused persons. Prosecution told court that A3 Ssenyama Stephen died in prison before the defence case opened and charges against him abetted, thus the rest of the trial was in respect to only A1 and A2. It is trite law that the accused person bears no burden to prove his innocence since he is presumed innocent until proved guilty.  This principle of law was laid down in Woolmington Vs. DPP [1935] A.C 462.  The same principle was enshrined in Article 28(3) (a) of the Constitution of Uganda. In order to secure a conviction of an accused person of murder, the following ingredients of the offence must be proved beyond reasonable doubt. The death of a Person named in the indictment. The death of deceased was caused by an unlawful act or omission The act causing the death of that person was accompanied by malice aforethought That it is the accused persons who caused the death of that person. In order to discharge the burden of proving the case beyond reasonable doubt, the prosecution called three witnesses, namely Ntanda Yuda Tadeo (PW1); Banalaba Vicent (PW2) and Musoke Yowa (PW3). Issue one, whether there was death of person named in indictment? Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. In the instant case the prosecution adduced a post mortem report dated 25th September 2017, which was admitted during the preliminary hearing and marked as exhibit P.Ex.1. The report shows that the deceased was Namaganda Annet identified by ssenyondo Jamilu. PW1 stated that he saw the deceased’s body by the road side. The defence did not contest this ingredient. I therefore find that ingredient one has been proved by prosecution beyond reasonable doubt. Whether death of deceased was caused by an unlawful act or omission? It is the law that any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law (see R v. Gusambizi s/o Wesonga (1948) 15 EACA 65). In the instant case, Dr. Kalungi Sam a Pathologist who carried out the post mortem indicated that the deceased had sustained conjunctiva hemorrhages and lacerations on her body, the lungs were congested and she died as a result of strangulation. PW1 testified that he found the deceased’s body by the road side. The evidence as a whole proves that the injuries sustained by the deceased were as a result of deliberate act of strangling, hence a homicide. Not having found any lawful justification for such an act, I find that prosecution has proved beyond reasonable doubt that Namaganda’s death was unlawfully caused. Whether the act causing the death of that person was accompanied by malice aforethought? Malice aforethought is defined by Section 191 of the Penal Code Act as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person.  The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. This may be deduced from circumstantial evidence (see R v. Tubere s/o Ochen (1945) 12 EACA 63) Malice aforethought being a mental element is difficult to prove by direct evidence however, court considers the part of the body of the victim that was targeted or the instrument used. In this case it was the neck as indicated in the post mortem report, which is a delicate part of the body. It is thus not in doubt that the deceased’s death was accompanied by malice aforethought. The prosecution has consequently proved beyond reasonable doubt that Namaganda’s death was caused with malice aforethought. Whether the accused persons caused the death of Namaganda Annet? PW1 testified that he got information from Betty Namisango that his step-mother, the deceased was killed. Note that this Betty Namisango did not testify in court. PW2 testified that he last saw the deceased drinking at his bar and the following day, Ntanda Yuda told him that the deceased was killed. PW3 also testified that he was told by a one Lukwago that the deceased was killed. DW1 denied allegations against him and testified that he was at home when he was arrested. DW2 stated that he was arrested from A1’s home by some residents. In this particular case, there was no direct or circumstantial evidence linking the accused persons to the death of Namaganda. All that prosecution witnesses told court was hearsay evidence. Such evidence is of the weakest kind and violates the provisions of Section 58 and 59 of the Evidence Act. I cannot therefore rely on such evidence. Further, PW1 told court that a sniffer dog was brought to the scene which led to the accused person’s home but the dog handler was not even called to testify in court as to how the sniffer dog was handled. In conclusion therefore, I find that prosecution has failed to place the accused persons at the scene of crime and in agreement with the assessors, I acquit A1 and A2 of Murder C/S 188 and 189 of the Penal Code Act. ………………………………………. Emmanuel Baguma Judge 25/6/19

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