THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL CASE No.145 OF 2016 UGANDA …………………………………… PROSECUTOR VERSUS A1. KIVUMBI HANNINGTON A2. KIVUMBI MARTIN A3. KATO PETER …………………………. ACCUSED BEFORE HON. MR. JUSTICE EMMANUEL BAGUMA JUDGMENT The accused persons Kivumbi Hannington, Kivumbi Martin and Kato Peter were indicted with murder C/S 188 and 189 of the Penal Code Act In the particulars of the offence, the state alleged that Kivumbi Hannington, Kivumbi Martin and Kato Peter in the night of the 14th of January 2016, at Kilungi village in Ggombe District, with malice aforethought unlawfully caused the death of Matovu Charles alias Kawaida. On arraignment before court, all the accused persons denied the charges against them. The law is that once the accused person denies the charges against him, it then becomes a duty of the prosecution to adduce evidence in court that prove all the ingredients of the offence against each of the accused persons. Under Article 28 (3) of the constitution of Uganda an accused person is presumed innocent till proved or on own free will pleads guilty. Similarly this means that an accused person shall never be called upon to prove his innocence. It is established Common law position that criminal charges against any person must be proved beyond reasonable doubt. SeeWoolmingtonVsDpp(1935)Ac462 and OjapanIgnesiousVsUg SC. CR .APP. No. 25 / 2005 It is should however be noted that proof beyond reasonable doubt does not mean proof beyond the shadow. It only means that if the Judge entertains any doubt then he must acquit and discharge the accused person. See a case of MILLER V MINISTER OF PENSIONS (1947) 2 ALL ER 372 it was held that beyond reasonable doubt need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect society if it admitted fanciful possibilities to deflect the course of Justice. If evidence is strong against a person as to leave only remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”. The case is proved beyond reasonable doubt but nothing short of that will suffice. Where evidence adduced before court if after evaluation there exists only a remote possibility of innocence of the accused person, it would mean that the prosecution has proved its case beyond reasonable doubt. See BaterVsBater (1950) 2 A11ER 458 The above are the legal principles that will be in the mind of this court and be applicable where necessary. The ingredients for the offence of murder that the prosecution must prove are as follows; That there was death Death was unlawfully caused with malice aforethought by the accused persons To prove the offence of murder, the prosecution called a total of 8 witnesses and in the preliminary hearing prosecution tendered in court PF24 in respect of all the accused persons as admitted facts and the post-mortem report. The defence also called three witnesses who gave sworn evidence. That there was death PW1 Dominico Bukenya told court that he knew all the accused persons because they stayed at the same village and that A2 is a son of A1. He said that he knew the deceased because he was his brother. He said that on 15/1/2016 at 8:30am he was in the garden with his mother and while in the garden he went to warm his food. Immediately he saw the deceased who appeared standing but on a close observation he realized that the deceased was tied with the cloth around the neck in his plantation near their garden. He said that he immediately called his mother, she came and saw the body. While there a one man called Fusi came with the Chairman and PW1 told them that the deceased had committed suicide. He said that the deceased was buried in Kilungu village. PW1’s evidence was corroborated by the evidence of all the prosecution witnesses and PE.5 the post-mortem report which confirmed that Matovu Charles died and he was buried at Kilungu village. Death was unlawfully caused PW1 told court that on the 15/1/2016 at 8:30 am while in the garden with his mother, he went to warm his food. Immediately, he saw the deceased who appeared to be standing but on close observation he realized that the deceased was tied with a cloth around the neck in the coffee plantation near their garden. PW1 immediately called his mother but while there, one man called Fusi came with the chairman and PW1 told them that the deceased had committed suicide but on close observation, they saw dots of blood from the scene to A1’s home. PW1 told court that he saw the deceased was cut and killed. PW4 Mbakuwako John said that he saw the body of the deceased, it had a cut in the neck which could be seen below the bed sheet. PW7 Igga Francis also told court that he saw the body of the deceased and blood was oozing from the mouth while tied on the coffee tree. PW8 NO.22160 D/SGT told court that he is the one who carried out the investigations in this case and during his investigations he visited the home of the deceased and found blood. The law is that all homicides are said to be unlawful unless excusable forexample in cases of self -defence or when arrested in execution of a court order for death sentence. See Gusambizi S/O Wesonga V R (1948) 15 EACA 65. In the instant case following the evidence of the prosecution, the deceased was found with the cut wood in his neck and his house also had blood. The prosecution witnesses’ evidence was corroborated by the post-mortem report done from Gombe Hospital which indicated that the deceased had a deep cut wood up to the cervical bone from left to right side of the neck and deep neck wound through the gullet and neck muscles and the cause of death was found to be due to the fact that he was slaughtered between the head and epiglottis damaging the air way and oesophagus and neck muscles killing him instantly. Thus, it is proved beyond reasonable doubt that the death of Matovu Charles was unlawfully cause. With malice aforethought Section.190 PCA defines malice afore thought as the intention to cause death and in order for court to decide the existence of the intent to kill the following are considered; The kind of weapon used Nature and degree of injury caused Part of the body targeted Conduct of the accused before, during and after the crime. See R Vs TUBERE S/O OCHIENG (1945) 12 EACA 63, PE.5 indicated that the cause of death in the instant case was due to deep wound up to the cervical bone from left to right side of the neck as external injuries and internal injuries was a deep neck wound through the gullet and neck muscles. The attackers targeted the neck which is a vulnerable part of the body. The degree of injury as described by Dr. Olupot Patience is too high to the extent that he described it to be slaughter between the head and epiglottis hence killing the deceased instantly. Hence, this court is satisfied that the state proved beyond reasonable doubt that whoever killed Matovu Charles did it with malice aforethought. By the accused persons PW2 told court that on the 15/1/2016 at 8:30am, while in the garden with his mother, he went to warm his food. Immediately he saw the deceased who appeared to be standing but on close observation, he realized that he was tied with the cloth around the neck in his coffee plantation near their garden. He said that he immediately called his mother who came and while they were there, a one man called Fusi came with the Chairperson.PW1 told them that the deceased had committed suicide but on close observation, they saw dots of blood from the scene going to A1’s home. Residents followed blood dots up to A1’s home but A1 was not at home. He said that they also checked in A2’s house but he was also not there.Later on the police came with sniffer dogs that went up to A2 and A1’s home where gumboots were recovered from A2’s house. In cross-examination, PW2 told court that the deceased was a brother in law to A1 and the deceased was staying in A1’s boy’s quarters. He also said that there was also blood that was found on the saucepans in the house of the deceased. PW4 NO.56310 Mbakuwako John a police officer attached to Mityana Police station, kanoni unit formerly dog section told court that on 15/1/2016 at 5:20 pm she received a call from O/S CID D/SP Kacho Doreen from Kanoni Police Station in Gomba District that there was a case of murder in Kilungi village, Nakiyingi Parish, Kyegonza Sub-county in Gomba District. She said that CID kacho Doreen requested for sniffer dogs. She said that she proceeded with the dogs and when she reached at the scene of the crime in kilungi village, she studied the scene very well and it was preserved. She said that thereafter she saw blood, a panga, a knife inside the house of the deceased and then she released the dog and it led her to the body which was in the coffee plantation hanged on coffee branch with a bed sheet which had so many colours. She said that the deceased had a cut in the neck which could be seen below the bed sheet. She told court that thereafter the dog proceeded up to the home of A1 who was the land lord to A3 but the house was locked with the padlock. She said that the Chairman brought A3 and he opened his house, it was searched by D/SGT Kecho Doreen and she never found any exhibit. In cross-examination, PW4 told court that the panga, knives and bed sheets from the deceased’s house, no finger prints was done on them. PW5 NO. 39866 D/C I Manaire Yonatold court that on the 15/1/2016 in the morning O/C D/ASP Kaakyo Doreencalled him and told him about the death of the deceased and she requested him to go with her plus other police officers. He said that they proceeded to Kilungu trading centre and on arrival, they went to the house of the deceased which had blood. It was a three roomed house and he was informed that the deceased was using one room and another one was for A2 and the 3rd one was empty. He said that the blood was on the bed sheet, panga, knife and some plates. The Chairman LC1 then led them to the garden where the body was hanged on the coffee tree. It was dressed in cloths and blood was oozing from the mouth and a bed sheet was tied in his neck. He said that when the dog handler came with the dog, A2 had been arrested because he stayed next to the deceased. When the dog handler came, she was led to the house where the deceased was staying up to the plantation where the body of the deceased was hanged. The dog again proceeded to another house which belonged to A1 but rented by A3 which was locked. A3 was called, he opened the house and a search was carried out but no exhibit was recovered. He said that thereafter he went back to the deceased’s house and picked the exhibits which included; a knife, a panga, saucepans, bed sheets, jerrican, open shoes, a kanzu, trouser, shirt and gumboots. PW5 told court that after, he went back to the house of A1, searched it but never recovered any exhibit. They then went to A2’s house and recovered the gumboots black in colour type of mingo under the bed with blood stains. The exhibit slip and police form 17A were tendered in court and marked PE.6 In cross- examination PW5 told court that A2 was not present at the time the search was carried out in his house and that the exhibits were not examined on the finger prints PW7 Igga Francis told court that on the 15/1/2016 at 9:00am while in Kilungi trading centre, he received a call from BukenyaDominico that Matovu had committed suicide and his body was hanging in his plot. He said that he went and told the chairman and Bukenya Dominico led them to where the body was and they actually found it hanging on the coffee tree. The chairman went and reported the matter to police. While people were saying that the deceased had committed suicide, they saw blood oozing from the mouth of the deceased. They checked with his house but the door was not locked. They checked and there was blood inside and on some items. He said that A1 found them at police and he was arrested. PW7 told court that he was around when A1’s and A2’s house was searched. He said that the house of A1 nothing was recovered but in the house of A2 gumboots were recovered. The house of A3 was also searched but nothing was recovered. PW7 also told court that before the deceased met his death he had a grudge with the A1 because the deceased was demanding money from A1 In cross-examination, PW7 told court that the deceased had resolved his issues with A1 before he met his death. However on the other hand, DW1 Kivumbi Hannington told court that he has five wives and that the deceased was his brother in law. He said that A2 is his son and A3 was not their relative but was a traditional healer who used to do business in one of his house during the day. He said that the late Matovu before his death, he used to stay in one of his houses for free. DW1 told court that the deceased died on 14/1/2016 when he was in Kisozi in Mpigi District and he came to know about Matovu’s death on 16/1/2016 while at Kisozi. He said that he got the information of his death at 8:00am from the Chairman Bulwanyi Samuel who rang him and told him that his brother in law had committed suicide. Upon receiving that information, DW1 went to see what had happened in kilungu and when he reached at the place, he found some people gathered about 100 but they were told not to reach the scene. He said that then he rang the chairman who was not at the scene who told him to find him at Kinoni Police which he did. On reaching the police, he was told that since he was the owner of the house where the deceased was staying, he had to be interrogated, made a statement and he was charged accordingly. In cross-examination, DW1 told court that the deceased had stayed in his house for 4-5 months before he meant his death and that he did not know who killed the deceased. He said that his wife did not know that he had given her brother a house. He also told court that A2 was staying in the room next to that of the deceased. DW2 Martin Kivumbi told court that he was staying in Kilungi village and that he was a student. He said that the deceased was staying at his father’s house which was some houses to the deceased’s room. He told court that there was one house between them. DW2 told court that he came to know about the incident on 15/1/2016 at 8:00am when one Dominico Bukenya (PW2) was making an alarm that the deceased had committed suicide in his plot. He went from his mother’s home where he had gone at 7:55am. When he reached at the scene, he saw a body of the deceased hanging on the coffee tree. He then went back to his mother’s home. Later on, he went with the chairman and other people to the deceased’s home where he saw blood in the bed room and they were told to keep a distance. He said that later on police came and condoned his home and asked who was staying in the next room near the deceased’s room? He was then arrested and taken to Kanoni police station. DW1 said that while at police, police officers came and told him that they had recovered gumboots with stains of blood from his room, he denied but the police officer pulled his chick and told him to sign. DW3 Kato Peter told court that he was sleeping in Gomba town. He said that he knew the deceased. He said that he got information from other people as he was going to take tea from home at 8:30am when his wife told him that the deceased had committed suicide from his plot. When he had the information, he decided to go to Kilungi village and see what had happened. He said that when he reached at the scene, he found police at the scene and police had condoned the place. They were told to keep away as police called for sniffer dogs, the dog was released and it went to the deceased’s house and then the body. It also went to the house where A3 used to work from during the day. The house was locked and he was told to open the house which he did and nothing was recovered from his house. DW3 told court that thereafter, police asked him to go to police and make a statement since the dog had led them to his house. He was taken to police from where he made a statement and he was detained at Kanoni Police station In cross-examination DW3 told court that he used to work during the day and that he did not know why the sniffer dog took police to his house. He told court that he used to treat his clients during the day and they go back. Considering the evidence given by the prosecution witnesses, it is noted that the evidence attaching the accused persons to the scene of crime is the evidence of a sniffer dog. However the law on evidence of sniffer dogs is that such evidence should be admitted with caution and care. See a case of Omondi and Anor V. R [ 1967] EA 802 The court of appeal also in the case of Wilson KyakurugahaVs Uganda Criminal Appeal No. 51 of 2014 upheld the six guidelines provided by justice Gaswaga in the case of Uganda vs. Muheirwe and Anor HCT-CN- 0011 of 2012 that must be considered before evidence of sniffer dogs can be admitted or relied upon by court. These included; The evidence must be treated with utmost care (caution) by court and given the fullest sort of explanation by the prosecution. There must be material before the court establishing the experience and qualifications of the dog handler. The reputation, skill and training of the tracker dog [is] require[d] to be proved before the court (of course by the handler/ trainer who is familiar with the characteristics of the dog). The circumstances relating to the actual trailing must be demonstrated. Preservation of the scene is crucial. And the trail must not have become stale. The human handler must not try to explore the inner workings of the animals mind in relation to the conduct of the trailing. This reservation apart, he is free to describe the behaviour of the dog and give an expert opinion as to the inferences which might properly be drawn from a particular action by the dog. The court should direct its attention to the conclusion which it is minded to reach on the basis of the tracker evidence and the perils in too quickly coming to that conclusion from material not subject to the truth-eliciting process of cross-examination. In the instant case, PW4 the dog handler told court that she had been in Kanoni unit formerly Dog Section where they train dogs that track criminals. He said that he had been in that unit for the period of 8 years. He told court that he trained in basic care and handling police dogs. He was trained from Nsambya Police headquarters for one year and he got a certificate in basic care and handling police dogs in 2010. PW4 told court that on the 15/1/2016 at 5:20pm, she received a call from O/S CID D/SP Kacho Doreen and when she reached the scene, she studied the scene and it was well preserved. She saw blood, panga and a knife in the house of the deceased and then she released the dog which led her to the body of the deceased which was in the coffee plantation. The dog then proceeded to A1’s house who was the land lord and then to A3. In line with the evidence given by PW4 the dog handler, this court notes that the body of the deceased was found tied on the coffee tree in the morning at 8:00am by a one Dominico Bukenya (PW1). PW1 in his evidence in court, he said that while in the garden with his mother, he went to warm his food but as he was warming his food, he saw the deceased standing but on close observation, he realised that the deceased was tied with the cloth in his neck and he called his mother. As his mother came, a one Fusi also came with the chairman. He said that as he was telling them how the deceased had committed suicide, they saw dots of blood from the deceased’s body to the house of A1 but A1 was not at home. Therefore, it is noted that the scene of crime by the time the sniffer dog was brought at 5:00pm, it had already been tampered with.Secondly, the training and the qualifications of the sniffer dog were never given to court. The behaviour of the sniffer dog was also not given to enable court make inferences which could be drawn from the particular action by the dog. Therefore, in absence of any other evidence to corroborate the evidence of a sniffer dog, I am unable to believe that the sniffer dog properly identified the accused persons as the ones who caused the death of the deceased. It was alleged that the gumboots which had blood stains were found in the house of A2 but A2 told court that the search was done in his absence and secondly, he denied and told court that the gumboots did not belong to him and it was never disproved by the prosecution. A1 and A3 raised alibi that they had not slept at Kilungi village on the fateful day and this alibi was not destroyed by the prosecution. Therefore, considering the reasons as above given, this court is in agreement with the Gentleman and Lady Assessors that the prosecution failed to prove beyond reasonable doubt that the death of the Matovu Charles was caused by the accused persons. Thus, I acquit A1, A2 and A3 of the offence of murder unless charged with any other lawful offence. Emmanuel Baguma
