5 

THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA AT KAMPALA 
CRIMINAL APPEAL NO. 0029 OF 2015 

(Coram: Tumwesigye; Mwangusya; Opio-Aweri; Mwondha; Tibaternwa- 
10     Ekiriikubinza; JJ.S.C) 
Between 
	BAITWABUSA FRANCIS 	APPELLANT 
And 
	UGANDA 	RESPONDENT 
15 
(Appeal from the decision of the Court of Appeal of Uganda at Kampala before 
the Justices Nshimye, Solome Balungi Bossa, Kenneth Kakuru JJA, on the 
17th day of February 2015 in Criminal Appeal No.26 of 2011) 

20 

JUDGMENT OF COURT 
This is a second appeal which arises from the judgment of the Court of 
Appeal which upheld the conviction of Baitwabusa Francis (the appellant) by 
the High Court on five counts of murder and a sentence of life imprisonment 
on each count. The sentences were to run concurrently. 

	25 	The facts of the case as found by the trial Judge (Chigamoy Owinyi-Dollo, J 
as he then was) and upheld by the Court of Appeal are that the deceased 
persons, namely, Kaireta Geoffrey, aged 25 years, Kabajwiga Brenda, aged 
20 years, Kisembo Derrick aged 4 years, Disaya Kabajungu, aged 3 years 
and Amanyire Edward, aged 2 years lived at Kihande I Village, Masindi with 
	30 	Mathew Karubanga (PW2), his wife, Tugume Maureen and his mother, Rose 
Kabatoro (PW3). 
On the 8th day of July, 2008 they had all retired to bed when PW2 who was 
sleeping with his wife in a separate room from that of the deceased, heard 
1 

'a blast from the Television set. He noticed that the house had caught fire 
	35 	and all attempts to open the door were futile because it had been locked 
from outside. His mother who was sleeping in a separate house raised an 
alarm which attracted neighbours who removed iron bars from a window 
through which PW2 and his wife escaped. The deceased were not so lucky. 
They were all burnt beyond recognition as the post mortem reports on all 
	40 	the five dead bodies indicated. They all died of multiple organ damage due 
to extensive burns. 
The District Police Commander Masindi District, Alex Twebaze( PW5) on 
receiving the report about this incident visited the scene that very night. On 
reaching the scene he confirmed that five people had perished in the fire and 
	45 	the name of the appellant was being mentioned in connection with the 
    burning of the house in which the deceased persons perished. 
He, together with the Local Council Chairman, Masindi and PW2 headed for 
the home of the appellant at Katama village where the wife of the appellant 
opened for them. The appellant was called out of his house and informed of 
	50 	the allegation that he had burnt PW2's house in which the deceased were 
   burnt. He was then arrested. He did not resist the arrest. His only 
  response to the arrest was that it was okay. He was taken to Masindi Police 
  Station from where he was later taken to the Chief Magistrate Court where 
  he was charged with murder. He was later indicted in the High Court sitting 
	55 	at Masindi where the prosecution adduced evidence to link him with the 
  offences. 
The appellant denied the alleged offences. He testified that on 8th July 2008 
he had gone to bed at 10:00 p.m. and was sleeping when he was awakened 
by his wife who told him that someone wanted him. The District Police 
	60 	Commander called him out and placed him under arrest. He was taken to 
  Masindi Police Station where he denied having burnt the house in which the 
  deceased persons died. 
2 

'Norah Kyakuhaire (DW2) in support of her husband's alibi testified that on 
8th July, 2008 she returned home at 6:00 p.m. from school where she was a 
65 teacher. She found her husband and children at home and they remained 
together till his arrest in the night. 
The arrest of the appellant was prompted by information circulating at the 
scene that he was not on good terms with PW2 whom he suspected of 
having a love affair with his wife. The suspicion arose from the fact that 
	70 	PW2 had left a phone with the appellant's wife for whom he was doing some 
   casual work. 
According to PW2 and DW2, the phone was a pledge for a sum of 
Shs 20,000/= which PW2 had borrowed from the appellant's wife. PW2 had 
also taken a sum of Shs.850,000/= from DW2 on the pretext that he had a 
	75 	cure for her medical condition. These two incidents had soured the 
relationship between PW2 and the appellant who had allegedly warned PW2 
that something was going to happen to him following which his house was 
burnt. 
Both the High Court and the Court of Appeal found that the case depended 
	80 	on circumstantial evidence and we agree. Both Courts rightly stated the 
principles which Courts apply in deciding cases based on circumstantial 
evidence as was re-stated in the case of Akbar Hussein Godi Vs Uganda 
(Supreme Court) Criminal Appeal No 03 of 2013) as follows:- 
"There are many decided cases which set out the relevant 
	85 	principles which Courts apply in deciding cases based on 
circumstantial evidence. In the case of Simon Musoke Vs R. 
(1958) E.A. 715 at page 718H, the Court of Appeal for East Africa 
held that in a case depending exclusively upon circumstantial 
evidence, the Court must, before deciding upon conviction, find 
	90 	that the inculpatory facts are incompatible with the innocence of 
the accused, and incapable of explanation upon any other 
reasonable hypothesis than that of guilt "see also Teper Vs R. 
3 

(1952) 2 ALL ER 447. Also see Andrea Obonyo & Others Vs R. 
(1962) E.A. 542 where the principles governing the application by 
	95 	Courts of circumstantial evidence were considered". 
The circumstantial evidence relied upon by the two Courts to convict .the 
appellant consisted of the threat by appellant to do harm to PW2 and 
evidence that he was seen fleeing from the scene on his motorcycle. The 
appellant denied both incidents throughout his trial and in his appeal he 
100    raises two grounds as follows:- 
1. That the learned Justices of Appeal erred in law and fact when they failed 
to properly re-evaluate the circumstantial evidence on record to come up 
with their own conclusion. 
2. That the learned Justices of Appeal erred in law and fact in upholding an 
105 illegal sentence of the Appellant spending the rest of his life in prison (Life 
imprisonment) which was a manifestly excessive sentence. 
He prayed that 
1. The appeal be allowed. 
2. The harsh and excessive sentence of the appellant spending the rest of 
	110 	his life in Prison be set aside or substituted with a lessor (sic) prison 
term. 
The second ground is badly drafted. It raises the issue of illegality of 
sentence related to imprisonment of the appellant for the rest of his life and 
mixes it with the issue of a manifestly excessive sentence. 
115 
The prayer seems to abandon the issue of illegality but it is raised again in 
the appellant's final submissions. Our observation is that Counsel should 
take more care in the drafting of the memoranda of Appeal so that there is 
no mix up of issues on Appeal. Both grounds will be resolved as matters of 
120   Law. 
4 

'At the hearing of the appeal the appellant was represented by Mr. 
Emmanuel Muwonge, Counsel on State Brief while the Respondent was 
represented by Ms Caroline Nabasa, a Senior Principal State Attorney, 
	125 	Directorate of Public Prosecutions. Both Counsel filed written submissions 
   which they adopted at the hearing of the appeal. 
On the first ground of Appeal, Counsel for the appellant submitted that both 
the trial Court and the Court of Appeal correctly observed that the case 

130    against 

the appellant was based entirely on circumstantial evidence 

because there was no eyewitness who saw the appellant commit the crime. 
He also acknowledged that both Courts correctly set out the principles that 
govern the Courts before any reliance can be placed on circumstantial 
evidence to convict a person. However, he faulted both Courts for having 
	135 	heavily relied on the testimony of PW9 which lacked credibility. According 
   to Counsel, this witness only came to testify after the Court had detained his 
 mother and maternal uncle and his evidence that he had been approached 
 by PW2 with money to testify against the appellant makes his testimony 
 unreliable and should not have been believed. He also could not have 
	140 	identified the appellant in the conditions prevailing on the night he is alleged 
 to have met the appellant riding his motor cycle following the incident. 
In reply Counsel for the Respondent submitted that the Court of Appeal 
properly re-evaluated the evidence as required of a first appellate Court and 
	145 	given the strong circumstantial evidence adduced by the prosecution, the 
appellant was placed at the scene of crime. She submitted that the 
circumstantial evidence rotated around the grudge between the appellant 
and PW2 and the evidence of PW9 who met the appellant fleeing from the 
scene. According to this witness, the appellant was carrying a yellow five 
150  liter jerrycan which fell off the motor cycle and he assisted him to retrieve it. 
He identified him in the process. 
5 

This Court being a second appellate Court is not required to re-evaluate the 
whole evidence unless it is found that the first appellate Court did not 
155 sufficiently re-evaluate the evidence to draw its own conclusion. This is the 
position which was stated in the case of Kifamunte Henry Vs Uganda 
SCCA 10 of 1997 as follows:- 
"It is the Court of Appeal as the first appellate Court which has 
	160 	duty to re-evaluate the evidence of the trial Court. This Court will 
no doubt consider the facts of the appeal to the extent of 
considering the relevant point of law or mixed law and fact raised 
in any appeal. If we re- evaluate the facts of each case wholesale 
we will assume the duty of the first appellate Court and create 
	165 	unnecessary uncertainty. We can interfere with the conclusions of 
the Court of Appeal if it appears that in consideration of the appeal 
as a first appellant Court, the Court of Appeal misapplied or failed 
to apply the principles set out in such decisions as Pandya (Supra) 
Ruwala (Supra) Kairu (Supra)" 
170 
In view of the defence of alibi raised by the appellant, it was incumbent on 
the trial Court and the Court of Appeal to determine whether or not the 
appellant was put at the scene of crime. The guidelines as to what amounts 
to putting the accused at the scene of crime were set by the Supreme Court 
	75  	of Uganda in the case of Bogere and Anor (Supreme Court Criminal 
 Appeal No 1 of 1997) where it was held as follows: 
"What then amounts to putting an accused at the scene of crime? 
We think that the expression must mean proof to the required 
	180 	  standard that the accused was at the scene of crime at the 
 material time. 
To hold that such proof has been achieved, the Court must not 
base itself on the isolated evaluation of the prosecution evidence 
6 

	185 	alone, but must base itself upon the evaluation of the evidence as 
a whole. Where the prosecution adduces evidence showing that 
the accused was at the scene of crime, and the defence not only 
denies it but also adduces that he was elsewhere at the material 
time it is incumbent on the Court to evaluate both versions 
	190 	judicially and give reasons why one and not the other version is 
accepted. It is misdirection to accept one version and then hold 
that because of that acceptance per se the other version is 
	unsustainable 	" 
	195 	As already indicated the case against the appellant is dependent on 
circumstantial evidence and the question is whether the Courts below 
subjected it to close scrutiny as is required. The requirement to subject 
circumstantial evidence to close scrutiny was emphasised in the case of 
Katende Semakula vs. Uganda (Supreme Court Criminal Appeal No. 11/ 
200  1994) where it was stated as follows:- 
"Another requirement concerning circumstantial evidence is that 
it must be narrowly examined, because evidence of this kind may 
be fabricated to cast suspicion on another. It is therefore 
necessary before drawing the inference of the accused's guilt from 
	205 	circumstantial evidence to be sure that there are no other co- 
existing circumstances which would weaken or destroy the 
inference ... " 
The first piece of circumstantial evidence relied on by both Courts to 
	210 	connect the appellant with the offence was a threat allegedly uttered by the 
appellant to PW2 on phone. The value to be attached to evidence of a prior 
threat was discussed in the case of Waihi and Anor Vs Uganda (1968) E.A. 
278 at p. 280 where the East African Court of Appeal stated:- 
	215 	"Evidence of a prior threat or of an announced intention to kill is 
always admissible evidence against a person accused of murder, 
7 

but its probative value varies greatly and may be very small or 
even amount to nothing. Regard must be had to the manner in 
which a threat is uttered, whether it is spoken bitterly or of 
	220 	impulsively in sudden anger or jokingly, and reason for the threat, 
if given, and the length of time between the threat and the killing 
are also material. Being admissible and being evidence tending to 
connect the accused person with the offence charged, a prior 
threat is, we think capable of corroborating a confession .... " 
	225 	(underlining provided) 
In this case, the appellant denies having made the threats and there was no 
verification of any telephone contact between the appellant and PW2. 
Secondly, from our reading of the case of Waihi Vs Uganda (Supra) evidence 
	230 	of prior threat cannot stand on its own. It can only be used for corroboration 
of other evidence which in this case is that the appellant was not only seen 
at the scene but was also seen fleeing from the scene on his motor cycle. 
According to the evidence of PW2 it was his mother, Rose Kabatoro (PW3) 
	235 	who informed people at the scene that she knew the person who had set the 
house on fire and had seen him jump on his motor cycle and ride away. But 
the trial judge, rightly so in our view disregarded this evidence when he 
observed as follows:- 
	240 	"It is easily discernable that the PW3's Court version alleging that 
she had identified the accused fleeing from the scene that night 
was ill contrived. She was evidently influenced to state so, by the 
ultimatum and threat she and PW2 claim the accused uttered for 
her family; and given that indeed the tragic fire incident took 
	245 	place within this time. In addition was her claim that she heard 
some people allege the morning after the fire that the accused 
had been seen with a jerrycan on a motor cycle fleeing from the 
scene of the fire. This was, in any case hearsay evidence and 
8 

inadmissible. PW3's claim that fateful night is therefore worthless. 
	250 	I must disregard it." 
After disregarding the evidence of PW3, the only other piece of 
circumstantial evidence relied on to connect the appellant was that he was 
seen fleeing from the scene on his motor cycle. According to No 25383 
	255 	D/CPL Okatayot Simon, an investigating officer who testified as a Court 
witness two people namely Mukubwa Peter a motor cycle rider who did not 
testify at the trial and Byakagaba Israel (PW9) a bicycle rider claimed to have 
met a person riding a TVS motor cycle on which he was carrying a five litre 
jerrycan. 
260 
Mukubwa did not identify the person while Byakagaba who testified as PW9 
claimed to have identified the appellant whom he assisted to retrieve the five 
litre jerry can which had fallen from the motorcycle. 
But in his own testimony this is what he stated "the complainant 
	265 	approached me and asked me to go and give evidence on how I had met 
the accused. He asked me if I knew the person who had burnt his house 
I told him I did not know the person, and then he asked me go and give 
statement at police. I accepted but asked him for 5 million shillings. 
He refused up to now". 
	70 	Earlier he had stated that he never mentioned to anyone that he had met 
Baitwabusa. He also denied having made any statement at the police. Later 
he admitted recording a statement at the police and although there was a 
suggestion that the appellant had approached him to influence him not to 
testify against him he denied ever meeting the complainant or the appellant 
	275 	after he had made his statement at the police. He denied having discussed 
the case with his uncle George Magambo (PW8) and his mother Evasi 
Kaheru (PW7). He denied having told his mother that he had seen the 
accused on the night of the fire. 
9 

In our View, the two pieces of circumstantial evidence did not point 
	280 	irresistibly to the guilt of the appellant. The evidence of the District police 
commander who arrested the appellant from his home did not help in 
linking the appellant with the offence. According to the witness he heard the 
name of appellant being mentioned at the scene and he went to his home 
where he found him sleeping. No search was conducted at the home of the 
	285 	appellant especially if anybody mentioned that he had been seen fleeing on 
his motorcycle whose registration number was not given but was described 
as blue in colour. There was mention of a yellow small jerycan which was 
never recovered. Moreover PW9 who testified that he had met the appellant, 
on the night the crime was allegedly committed told court that he never told 
	290 	any body so including the complainant whom he told that he did not know 
the person who had set fire to his property. It was only after he was 
promised Shs.5 million that he agreed to go and make a statement at the 
police. The complainant reneged on his promise to pay him Shs.5 million 
which may explain why he was reluctant to testify in Court till his relatives 
	295 	were imprisoned. There was also evidence that he was approached by the 
appellant to withdraw his statement at the police which may explain the 
disappearance of his statement from the police file. 
We do not see how the trial Court and Court of Appeal would find P.W.9 
	300 	such a credible witness as to disprove the alibi raised by the appellant. On 
the contrary his credibility would be in question whether he was approached 
by the appellant to exonerate him of the crime or by the complainant to 
fabricate a story that he had met the appellant fleeing from the scene. On 
that basis we find that although both courts were alive to the principles 
	305 	regarding circumstantial evidence, none of them subjected it to the scrutiny 
required before basing a conviction on it. We are of the view that the 
evidence on record left the appellant as a mere suspect. Suspicion, however 
strong it may be does not lead to conviction. See R v. Israel Epuku S/0 
Achietu [1934] IEACA 166. 
10 

310 In the result the appellant's appeal is allowed. His conviction on all counts 
of murder is quashed and is to be released from custody unless he is being 
held on other lawful charges. 
	Dat d at Kampala this 	14th day of 	August 2017 
	
Tumwesigye 
JUSTICE OF THE SUPREME COURT 

Mwangusya
JUSTICE OF THE SUPREME COURT 

Opio Aweri 	 
JUSTICE OF THE SUPREME COURT 

 

Mwondha 
JUSTICE OF THE SUPREME COURT 

Tibatemwa-Ekirukubinza 
JUSTICE OF THE SUPREME COURT