IN THE HIGH COURT OF UGANDA
AT THE SESSION HOLDEN AT MUBENDE
CRIMINAL SESSION CASE NO. 48 OF 2000
UGANDA:::::::::::::::::::::::::::::::::::::::::: PROSECUTOR VERSUS
KAWOYA MATHIAS:::::::::::::::::::::::::::::::::: ACCUSED
BEFORE: THE HONOURABLE .AG.JUSTICE PAUL K. MUGAMBA
The accused was indicted for murder contrary to sections 183 and 184 of the Penal Code Act. At the time of hearing this case, after both sides had admitted the evidence of Dr. Sempijja of Mityana Hospital which showed that the deceased Kakooza Matia died of head injury consistent with internal haemorrhage, the prosecution called 3 witnesses. They were Lawrence Ndiko (P.W.l), Mpoza Emmanuel (P.W.2) and Nakidde Robinah (P.W.3).
The accused gave unsworn evidence and called no witnesses.
Briefly the prosecution case was as follows. On 8th September 1998 the deceased Kakooza Matia died of head injuries sustained earlier in the afternoon. The accused had been a boyfriend of the mother of P.W.1 and the deceased. His girlfriend had died sometime earlier leaving him in her house which was near that of the deceased. The accused was in the process of moving away from that house and taking with him items of property. Earlier in the day accused had come with PW2 the Local Chairman of L.C.1 and, in the presence of the deceased, taken away what appeared all he had in the house. Later that afternoon accused returned alone and claimed that he had forgotten his graduated tax tickets and a bottle in the house. The deceased was reluctant to allow the accused, who was holding a club, into his mother’s house. However when the accused insisted and proceeded to enter the house deceased went following him and entered the house too. A fight followed which culminated in a noise like that of thumping and a statement by the deceased that he had been killed by the accused. When PW1 entered the house he found accused holding the deceased by the neck. Accused also held a club. Blood flowed from the ears and nose of the deceased. Deceased died later that night after he was taken to a clinic. Accused was later arrested and indicted for the murder of the deceased.
In order for the prosecution to succeed in securing a conviction for murder it must prove four ingredients of the offence beyond reasonable doubt. The four ingredients are;
(a) that the deceased died;
(b) that the death of the deceased was unlawful;
(c) that the deceased was killed with malice aforethought; and
(d) that it was accused who committed the offence.
With regard to the first ingredient, a post mortem report made by Dr. Sempijja of Mityana Hospital was admitted in evidence. The Doctor had examined the body of Kakooza Matia on 9th September, 1998. The body had been identified to him by PW1, a brother to the deceased. PW3, widow of the deceased also testified that accused died on 8th September, 1998. I am in no doubt that the prosecution has proved beyond reasonable doubt the fact of deceased’s death.
The second ingredient concerns whether the killing of the deceased was unlawful. It is incumbent upon the prosecution to prove that the killing was unlawful. At law every homicide is unlawful unless it was committed accidentally or in circumstances which show that it was excusable such as where it was in self defence, defence of another or defence or property. The case of Gusambizi Wesonga (1948) 15 EACA 65 articulates this proposition. In view of the evidence on record it is necessary to see if the killing of the deceased was lawful. It is the evidence of PW1 and PW3 that there had been a fight between the deceased and the accused in the house of Nantale. A sound like that of thumping was heard by the two witnesses who also heard words to the effect that accused was killing the deceased. Later on the two witnesses saw deceased with a big wound on the head, with blood flowing from the nose and ears. The accused on the other hand stated in his defence that he does not know how the deceased sustained the fatal injury on the head. I am satisfied that given the above evidence of the injury sustained by the deceased, his eventual death was a result of an unlawful act. The act was not accidental nor could it be said to have been excusable. The prosecution has proved that the killing was unlawful and the accused has not challenged this.
The next ingredient is whether the killing of Kakooza was accompanied by malice aforethought. Malice aforethought as defined under section 186 of the Penal Code Act means intentional killing of a person by another, knowledge that one’s act or omission will probably result in the death of that other person. Certain factors are taken into account in deciding whether malice aforethought is present. These factors are such as the nature of the weapon used in causing death, the number of injuries inflicted upon the deceased, the part of the body where such injury was inflicted and the conduct of the killer before and after the death. The case of R Vs Tubere s/o Ochen (1945) 12 EACA 63 is pertinent.
According to the postmortem report, the deceased died owing to head injury consistent with internal haemorrhage. In the post mortem report the doctor stated that there were no weapons identified at the site which would have been used upon the body. It is not clear what could have inflicted that injury on the head since when it occurred only the deceased and the accused were in the house. As the two were fighting the possibility of deceased’s head hitting against any object cannot be ruled out. Mention is made of a big stick or club by PW1 and PW3 which both witnesses stated the accused had come with and which he had gone within to the house where the fight had taken place. However according to the testimony of PW2, wife of the deceased, when accused came PW1 had not yet come. According to PW3 it was she who had sent for PW1 when she realized the fight between accused and deceased called for intervention. That being the case, there is no way PW1 could have seen accused on his arrival. That leaves only the testimony of PW3 concerning the club. PW1 also mention the club at a later stage when he went into