We observe that although the trial court answered the issue in the negative, it went ahead to convict the 1st appellant. In our view, the trial Court based the conviction on evidence available and stated that the first appellant as a reasonable
officer should have contemplated that the beatings would have caused the death of the deceased. The first appellate court, too, re-appraised
the evidence on record and found that there was malice aforethought on the part of the 1st appellant. We are unable to fault the 1st appellate court on that finding.
Grounds 1 and 2 fail for lack of merit.
We now consider ground 3 which is a complaint that the Court Martial Appeal Court erred in fact and in law when they failed to consider
that 1st appellant had poor legal representation at the trial and that is why he was wrongly convicted.
Mr. Muguluma’s submission on this ground was that counsel for the 1st appellant did not cross-examine the prosecution witnesses. He told the trial court that he had no questions to put to the prosecution
witnesses and left the burden of cross-examination to the appellant. He submitted that during the trial the defence counsel cross-examined
his own witness.
In reply, the learned Assistant Director of Public Prosecutions submitted that this ground of appeal was not raised by the first
appellant in the Court Martial Appeal Court. He contended that at the trial the defence counsel as an officer of court was doing
his best to bring out all material facts so as to help the court to reach a just decision.
We note that this ground of appeal was not raised before the Court Martial Appeal Court. In our view, it is not fair to criticise
the court for not dealing with the matter that was not raised before it. Be that as it may, we shall consider the complaint since
it touches on the constitutional requirement of a fair trial. We have perused the record and found that out of the eight prosecution
witnesses the defence counsel cross-examined only two witnesses. The appellant was allowed by the chairman of the General Court Martial
to examine all the prosecution witnesses by himself if he so wished. In fact the 1st appellant cross-examined prosecution witnesses. We must observe that normally it is counsel for the accused to put questions to the
prosecution witnesses on behalf of the accused. However, counsel may decline to cross-examine if in his/her opinion it is unwise
to do so. This may be in a case where the witness has not at all incriminated the accused or where counsel thinks that by cross-examination
the witness might give further damaging evidence against the accused. In the appeal before us, counsel cross-examined some witnesses
and appellant cross-examined others. We are of the considered view that failure by counsel to cross-examine all prosecution witnesses
did not cause a miscarriage of justice. It is not true that counsel for the 1st appellant cross-examined his own witness. We have observed from the record that counsel put the prosecution witnesses’ testimonies
to him and provided the 1st appellant the opportunity to reject or accept their evidence.
Ground 3, too fails.
We now turn to the appeal of the second appellant. Mr. Emesu, learned counsel for the 2nd appellant abandoned ground 1 and argued grounds 2 and 3 jointly. We shall deal with grounds 2, 3 and 4 jointly as they are inter-related
and are on the evaluation of evidence..
Counsel’s complaint in the three grounds is that the Court-Martial Appeal Court failed to re-evaluate the evidence properly.
By reason of that failure it wrongly concluded that the 2nd appellant had a common intention with the 1st appellant to kill the deceased and had malice aforethought. He criticised the Court Martial Appeal Court for finding that the 2nd appellant had malice aforethought whereas the General Court Martial did not find a clear intention on the part of the accused to
kill the deceased. Counsel further submitted that the Court Martial Appeal Court was wrong to base its finding that the appellant
had malice aforethought to kill the deceased on the evidence of Pettirina Namakwere, PW3, which was to the effect that the 2nd appellant said that Wanzala was going to die that day. Counsel argued that at the time the deceased was arrested, PW4 and PW5 were
present but did not testify that they heard the 2nd appellant saying those words. Counsel reasoned that PW3 being the wife of the deceased was motivated by vengeance against the second
appellant because he had arrested her husband who subsequently died while in custody. Counsel argued that even if the 2nd appellant
said such words his subsequent conduct shows that he disengaged himself. He told soldiers to stop beating the deceased as they approached
the detach where he handed over the deceased to his superior, the 1st appellant.
On common intention, counsel argued that there was no common intention between the first and the second appellant to murder the deceased.
Once the 2nd t appellant had arrested the deceased he took him to the first appeellant as directed. He was, therefore, not responsible for the beatings
which were inflicted on the deceased by the soldiers in the barracks at the instructions of the 1st appellant.
The learned Assistant Director of Public Prosecutions supported the findings of the Court Martial Appeal Court. He submitted that
there was malice aforethought established beyond reasonable doubt. On common intention he contended that both accused had the same
intention to effect the unlawful arrest and beatings of the deceased. He prayed this Court not to interfere with the concurrent finding
of the two courts below.
Common intention is defined by section 22 of the Penal Code as follows:
“When two or more persons form a common intention prosecute unlawful purpose in conjunction with one another, and in the prosecution
of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such
purpose, each of them is deemed to have committed the offence.”
The 1st appellate court re-evaluated the evidence on whether the second appellant had malice aforethought and common intention with the first
appellant to kill the deceased. Mr. Emesu’s submission that the 1st appellate court was wrong to believe PW3’s evidence that she heard the second appellant saying that Wanzala was gong to die
that day because it was not heard by PW4 and PW5 who were present is not tenable. Firstly, because in his evidence PW4 explained
that when they reached the deceased’s home each one of the soldiers took his position. He did not, therefore, hear what the
second appellant said to the deceased. We are of the view that this applies to PW5. Secondly, apart from the testimony by PW3, Silasi
Wapukuru Sisilo, PW2, who actually pointed out the house of the deceased to the soldiers heard the 2nd appellant telling the deceased that he should not joke with bush men and that he would die that day.
The first appellate court found that both appellants were acting in unison. It stated thus:
“The words used by the 2nd appellant when he arrested the deceased telling him that he was going to die, were similar to those used by the first appellant while
ordering the soldiers to beat the deceased. Apparently the 2nd appellant had abducted a schoolgirl and the deceased had disclosed this in the article that apparently angered them. There also appears
to have been misconduct by soldiers at the detach which was exposed by the article and no wonder the appellants were determined to
eliminate the deceased. We therefore find that the appellants killed the deceased with malice aforethought and were properly convicted
by the trial court.”
We cannot fault the 1st appellate court on that finding of fact. We are unable to see according to the record of appeal where the 2nd appellant disengaged himself from the mission of murdering the deceased. He started beating the deceased immediately on his arrest.
He only took the girl in issue to Tororo to explain his case to his superior, the Brigade Commander, that he had married her with
the consent of her father. This was after he had set in motion the process of murdering of the deceased. We accept the Assistant
Director of Public Prosecution’s submission that common intention was in the unlawful arrest and beating up of the deceased
which resulted in his death. To us death was the probable consequences of the appellants’ actions.
We accept Mr. Wamasebu’s submission that the finding by the trial court that there was no clear evidence of intention to kill
the deceased referred to the 3rd accused at the trial. If that finding had referred to the second appeellant the trial court would not have convicted him of murder.
Grounds 2, 3 and 4 fail.
We now consider ground 5, which is
“That the Court Martial Appeal Court erred in fact and in law in not holding evidence adduced by PW8 as to the cause of death
of the deceased was uncertain and inconclusive as to which injuries actually resulted in the death of the deceased and the said error
caused a miscarriage of justice to the appellant.”
We have considered the sentence passed. In our opinion, it is appropriate in the circumstances. This is a case of brutal murder of
the deceased by the appellants who were supposed to protect him. The sentence of death is, therefore, upheld.
Counsel contended that the body was not thoroughly examined. However, according to the evidence of Accused No. 3 the deceased suffered
extensive injuries. Counsel submitted further that Accused No.3 kicked the deceased and he fell down. He reasoned that the fall caused
the laceration of the liver and the bullets which he shot injured the testicles. He argued further that the type of sticks which
the 2nd appellant used in beating the deceased were not described and it cannot, therefore, be inferred that it was the injuries that he
inflicted which caused the death of the deceased.
We have held that both appellants had the common intention to kill the deceased. This is clearly shown by the fact that the second
appellant immediately beat the deceased when he arrested him. He made a declaration that Wanzala was to die that day. The 1st appellant who ordered for the arrest of the deceased instructed the soldiers to beat him. He also said that he would be responsible
if the deceased died. It is obvious that both appellants participated in the murder of the deceased. Both of them were actively engaged
in the execution of their unlawful purpose. It does not matter the degree of participation as long as the intention was the same.
See: Solomon Mungai and Others Vs Republic  EA 762.
Ground 5 too fails.