style='mso-bidi-font-weight:normal'>THE REPUBLIC OF UGANDA
style='mso-bidi-font-weight:normal'>IN THE HIGH COURT OF UGANDA AT RUKUNGIRI
style='mso-bidi-font-weight:normal'>HCT – 05 – CR – CSC – No.096 - 2008
style='mso-bidi-font-weight:normal'>A1. TURYASINGURA DENIS
style='mso-bidi-font-weight:normal'>A2. MBABAZI NARIS :::::::::::::::::::::::::::::::
style='mso-bidi-font-weight:normal'>A3. BYAMUKAMA AUGUSTINE style='mso-spacerun:yes'>
HONOURABLE MR. JUSTICE YOROKAMU
accused persons TURYASINGURA DENIS, MBABAZI NARIS and BYAMUKAMA AUGUSTINE are
indicted for murder contrary to Sections 188 and 189 of the Penal Code
Act. It is alleged that the three
accused persons and others still at large on the 12th day of
February, 2007 at Kabashaki village in Kanungu District murdered SPEAKER
LAWRENCE. They all pleaded not guilty to
The substance of
the case for the prosecution as per Summary of the case is that on 12/02/2007
the deceased was with the accused persons at Kagashe Trading Centre in the bar
of Ahimbisibwe Enid drinking together; that Mbabazi Naris and Byamukama
Augustine who are brothers to the deceased were buying him waragi at the time;
that around 9:30pm they all left the said bar together proceeding to their
home; that after a short distance, the accused persons picked their pangas from
the nearby bush without knowledge of the deceased; that later Byamukama grabbed
the deceased from behind and Turyasingura Denis caught his legs, forced him
into the flowing water and Mbabazi started cutting him with a panga; that
immediately after that the accused persons tied him in a polythene bag and
dumped his body at his compound where he was discovered dead by his wife
Tumuheirwe Fausta after the accused persons had left.
It is trite law
that the burden is on the prosecution to prove the guilt of an accused person
beyond reasonable doubt.
In a case of
murder the prosecution must prove that:
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victim is actually dead;
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was unlawfully caused;
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killed the deceased; and
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was with malice aforethought.
With regard to
the first ingredient of the offence, the prosecution relies on the post mortem
report, Exhibit. P1, made by Dr. Busingye, Medical officer, Kambuga Hospital.
His evidence was admitted in accordance with Section 66 (1) of the Trial on
Indictments Act. The body of the person
he examined was identified to him by one Kahigi as that of Speaker
Lawrence. There is also the evidence of
PW2 Ahimbisibwe Enid, PW3 Tumuheirwe Fausta, Widow to the deceased and the
accused person themselves who saw the body and participated in the burial.
evidence, death of Speaker Lawrence has been proved. style='mso-spacerun:yes'>
With regards to
the second ingredient whether Speaker Lawrence’s death was unlawfully caused,
the law presumes that every homicide is unlawful unless it is accidental or
excusable. An accidental homicide
usually happens by chance or unintentionally, whereas a homicide is excusable
if it is committed in execution of a lawful sentence or in circumstances of
From the Post
mortem report and testimony of PW2 Ahimbisibwe Enid and PW3 Tumuheirwe Fausta,
it is evident that the body had deep cut wounds in the most vulnerable parts of
the body. From the Doctor’s point of
view, the cause of death was haemorrhagic shock due to bleeding from the
multiple cut wounds and the left carotid.
The defence does
not dispute that Speaker Lawrence’s death was unlawfully caused.
evidence, he died a violent death that was unlawfully caused.
element of the offence of murder has also been proved.
As to whether
the unlawful acts which led to Speaker Lawrence’s death were committed by the
accused persons, at the centre of this issue is the question of A1
Tutyasingura’a extra-judicial statement in which he implicated his co-accused,
Mbabazi and Byamukama. I will turn to
the statement shortly.
evidence of PW2 Ahimbisibwe Enid.
She operates a
local beer at Kabashaki in Kanungu District.
It is her testimony that on 12/2/2007 around 9:00pm the three accused
persons and their deceased colleague were at her Bar. style='mso-spacerun:yes'> Her husband was in bed, sick. style='mso-spacerun:yes'> She served them a drink and because the
husband’s condition wasn’t good, she requested them to leave with their
drink. They obliged. style='mso-spacerun:yes'> The following morning, she learnt of the
death of one of them, Speaker Lawrence. She
went and saw the deceased’s body. After
some time, police asked her to make a statement and she obliged. style='mso-spacerun:yes'> After some time also the police recovered two
items from a river bank. The items were
a jacket and a shirt. She identified the
two to police as Turyasingura’s and Mbabazi’s respectively, and that the last
time the two were seen in the company of the deceased, each was dressed in the
evidence of PW3 Tumuheirwe Fausta.
The deceased was
her husband. He left home around 8:00pm
on 12/2/2007 without telling her where he was going. style='mso-spacerun:yes'> Her self and the children went to bed and
slept. Then around 11:00pm people
started throwing stones at their house.
After a short time, she heard a bleating sheep and went outside to see
what the problem was. Near the house she
came across the dead body of her husband.
According to her, judging from the amount of blood where the body lay,
the deceased was not killed at that point, rather the body was carried to that
spot. She alerted the neighbours who
also alerted the police.
hunt for the killers of her husband begun.
evidence of PW4 No.19082 D/C Turyahebwa Dan.
He was attached
to Kanungu Police Station when on 13/02/2007 he received a case of alleged murder
to investigate. He proceeded to
Kabashaki Cell and at the deceased’s home, he found the deceased’s body in the
compound. It had multiple cut wounds on
the head. He searched around for
possible clues as to the murderers but he got none. style='mso-spacerun:yes'> He removed the body and took it to Kambuga
Hospital for post mortem. Mr. Busingye
examined the body and gave cause of death as hemorrhagic shock.
Later, the body
was handed back to the relatives for burial.
A week later he
received information about A1 in connection with the killing. He gave the
source of information as Kagurusi, a brother to the deceased but this Kagurusi
did not appear as a witness. Be that as
it is, the witness communicated to Rugyeyo to have A1 arrested. He was arrested
and he found him in the cells. On
talking to him, A1 Turyasingura allegedly admitted commission of the offence
with Mbabazi and Byamukama. The alleged
admission amounts to nothing in-law in view of the witness’s rank. style='mso-spacerun:yes'> But it takes us to another level, that of PW5
Gumisiriza Karinkiza, to which I will revert shortly.
arrest of A1 Turyasingura, his co-accused were also arrested.
After about two
months, on 21/4/2007, he also received information that when it rained, Kabashaki
river burst its banks and washed a shore clothes. style='mso-spacerun:yes'> He recovered a jacket and shirt on the basis
of this information. The two items have since been identified by PW2
Ahimbisibwe Enid as A1’s and A2’s.
evidence of D/ASP Gumisiriza Karinkiza.
He was the O/C
CID Kanungu at the time. On 23/2/2007 he
recorded a charge and caution statement from A1 Turyasingura. style='mso-spacerun:yes'> In the statement, the accused admitted
complicity in the killing of Speaker Lawrence and implicated A2 Mbabazi and A3
I admitted the
statement in evidence after a trial within a trial in which I was satisfied
that the statement was freely and voluntarily made as medical evidence did not
indicate marks of the torture on the accused and the accused did not talk of
any torture anyway.
From the above
facts, it is clear to me that the evidence tending to connect the accused
persons with the death of Speaker Lawrence is purely circumstantial in the
sense that nobody testifies as having seen the accused persons killing the
style='mso-tab-count:1'> The law governing circumstantial
evidence was clearly stated in Simon
Vs Republic  E.A 715.
stated in that case is that where the prosecution case is founded on
circumstantial evidence, that evidence must show that the accused is guilty and
there are no co-existing factors that tend to weaken or destroy the inference
of his guilt.
I will now
consider those pieces of circumstantial evidence and draw a conclusion out of
The first piece
of circumstantial evidence relied upon by the prosecution is that of PW2
Ahimbisibwe Enid. From her evidence, she
knew the accused persons. She operates a style='mso-spacerun:yes'> Bar business at Kagashe Trading Centre in
Kanungu. It is her testimony that the
deceased and the three accused persons were her regular customers and that she
was with them on 12/02/2007 around 9.00 pm.
They all left her Bar at the same time.
morning she got information that Speaker Lawrence died that night; that he had
been killed. By that time police had no
idea who the killers were. She therefore
did not volunteer any statement to police about it. style='mso-spacerun:yes'> I cannot say that this was unusual since at
that stage, she had no reason to suspect that after leaving her place, the
deceased could have been killed by his own blood relations. style='mso-spacerun:yes'> With time, however, police investigators
reached her as they were bound to. She
indeed had useful information for them being one of the last people in the area
to see him alive that night. Her evidence is that from her recollection, A1 was
in his usual jacket that evening and A2 was in a white shirt. style='mso-spacerun:yes'> It is of course possible that she came to
that recollection after similar items were recovered from a nearby river two
months later. By the time of recovery,
the accused persons were already in prison.
She has identified those recovered items as property similar to what A1
Turyasingura and A2 Mbabazi were dressed in that evening.
all the accused persons have distanced themselves from anything to do with
being at PW2 Ahimbisibwe’s Bar that evening or owning the recovered jacket and
She gave her
evidence in a cool manner. There has
been no suggestion of any grudge between her and themselves to possibly
motivate her into fabricating evidence against them. style='mso-spacerun:yes'> None existed in my view. style='mso-spacerun:yes'> I have therefore seen no reason to doubt her
evidence on two pertinent aspects: that on 12/2/2007 in the evening the four
converged at her Bar for a drink and thereafter moved away peacefully; and that
A1 was in the recovered jacket and A2 the recovered shirt. style='mso-spacerun:yes'> I have not found their conduct of distancing
themselves from any activity at PW2’s Bar, in view of her credible and truthful
evidence to the contrary, to be conduct compatible with innocence.
On the strength
of this evidence, I would make a finding, and I do so, that the last time the
deceased was seen alive was on 12/2/2007 around 9:00pm at PW2 Ahimbisibwe’s
bar. He was in the company of the
Turning now to
the evidence of PW3 Tumuheirwe, she last saw the deceased around 8:00pm. style='mso-spacerun:yes'> She was awakened from her sleep around
11:00pm by stones thrown at their house and the bleating of the sheep. style='mso-spacerun:yes'> On reaching outside, she came face to face
with a body of a husband she had last seen a couple of hours ago.
evidence, court is entitled to make a finding that the stones were thrown in
the direction of her house to purposely alert her about the catastrophe that
had just befallen the family. It was a
deliberate act on the part of the killers to alert the deceased’s wife about
the presence of the husband’s body in the compound. style='mso-spacerun:yes'> From this evidence, court is satisfied that
the deceased was slain from elsewhere and the killers were kind enough to carry
the body to his compound.
If the killing
had been done at the place where the body was eventually found, surely PW3
Tumuheirwe would have heard cries for help/or a scuffle outside. style='mso-spacerun:yes'> She heard none of these. style='mso-spacerun:yes'> In these circumstances, the irresistible
conclusion is that the body was carried to the deceased’s compound. style='mso-spacerun:yes'> I so find.
The question that
arises from all this is who then it was that had the guts to kill the deceased
and kindly carry the body to his home?
The answer in my
view is not hard to get. It lies in the
evidence of PW4 D./C Turyahebwa and PW5 D/ASP Karinkiza. PW4 was the investigating
A week after
Lawrence Speaker’s death, he received information about A1 Turyasingura’s
complicity in the killing. He (A1) was
arrested and he revealed to police that he had killed the deceased with A2 and
As fate would
have it, these three people were indeed the last people to be seen in the
company of the deceased. From the
evidence of PW4 D/C Turyahebwa, since A1 was volunteering information, he was
put before PW5 Gumisiriza Karinkiza for a charge and caution statement.
In the statement
made before PW5 a day after arrest, A1 narrated how in the morning of style='mso-spacerun:yes'> 12/2/2007 at a burial A2 and the deceased made
arrangements to meet later in the day; how around 8:00pm Mbabazi (A2) called
him (A1) to assist him to carry Tonto (a local brew) from Moses’ place to
Bashaija’s; how on the way they met Byamukama (A3) and traveled with him upto
Kagashe; how they found Speaker in a bar of one Karaaro; how Mbabazi bought
Speaker three glasses of Waragi; they moved with Speaker and reached Kabashaki
river; how Byamukama grabbed the drunk Speaker from behind; how A1 held his
legs and they pushed the head in water; how A2 picked 2 pangas from the bush
and cut Speaker on the head about 6 times; how they kept the head in water as
it bled; how they carried the body upto the deceased’s compound; and how A2 and
A3 threw stones on the roof of the house and Speaker’s wife came out making an
alarm that robbers had attacked her; and how Byamukama untied one sheep which
was tethered in the compound, the idea being to create impression that thieves
had come to steal the sheep and in the process killed Speaker.
He has since
retracted the same.
considered the circumstances under which the charge and caution statement came
to be made. PW5 though O/C CID Kanungu
at the time was not on the team of police officers investigating the case. style='mso-spacerun:yes'> Upto the time A1 made the statement, the
police had not received details as to how the murder was planned and executed,
to raise inference that PW5 found information on the file, prepared a statement
and put it before A1 for signature as he (A1) would have wished court to
believe. The statement itself was made
shortly after arrest.
It is detailed
and covers all pertinent particulars of the case.
considered the medical examination of A1.
It is on record as Exhibit. P.3.
It shows that A1 had no physical injuries on examination.
I directed the
assessors, and I so direct myself now, that a statement is not a confession
unless it is sufficient by itself to justify the conviction of the person
making it of the offence with which he/they are charged. style='mso-spacerun:yes'> For a statement to amount to confession, it
must admit all the elements of the offence or substantially all elements of the
offence allegedly confessed: style='mso-bidi-font-weight:normal'>Anyangu & Others Vs R  E.A. 232.
I was satisfied
after conducting a trial within a trial that A1 made the statement freely and
voluntarily. I maintain that finding. style='mso-spacerun:yes'> The same amounts to a confession as in it A1
admits all the elements of the offence of murder.
As I directed
the assessors, it is dangerous to rely on a retracted confession in the absence
of corroboration, but court and the assessors may do so if fully satisfied that
the confession must be true.
Corroboration is not necessary in law though.
A court may act
on a confession alone if it is fully satisfied after considering all the
material points and surrounding circumstances that the confession must be
true. Corroboration implies independent
evidence which implicates a person accused of a crime by connecting him with
it. It is evidence which confirms in
some material particulars not only that the crime was committed, but also that
the accused committed.
considered A’s confession in the context of PW2 Ahimbisibwe’s evidence placing
all the accused persons at her Bar in the evening of 12/2/2007. style='mso-spacerun:yes'> I have also considered it in the context of
PW3 Tumuheirwe’s evidence of people throwing stones at their house, the
bleating of the sheep, and the recovery of a jacket and shirt from the river 2
months after the incident, which items have been positively proved to belong to
A1 and A2. In the statement made before
recovery of the items, A1 talks of the trio going to the river to wash
themselves. On the basis of all these
pieces of evidence, I have come to the conclusion that A1’s confession is
true. The evidence of PW2 Ahimbisibwe
and PW3 Tumuheirwe provides ample corroboration to it.
Under Section 27
of the Evidence Act, when a confession made by one of the accused persons
affecting himself and his co-accused is proved, the court may take into
consideration such a confession as against that co-accused as well as the
accused that makes the confession.
I am acutely
aware that a confession of co-accused is weak evidence against the co-accused.
This caution was
adequately laid down in Karaya S/O
Nyonji & Others Vs R (1953) 20 EACA 324 in the following words:
style='mso-bidi-font-weight:normal'>“It is incorrect to regard a confession
made by one accused in an extra-judicial statement as a basis for a case
against his co-accused, and to hold that with some corroboration it is safe to
convict. What is needed is independent
evidence, which, when linked with and supported by the confession of the co-accused,
removes beyond any reasonable doubt the question of innocence.”
In the instant
case, we have evidence of PW2 Ahimbisibwe which proves that the deceased was
last seen in the company of the three
There is no
evidence of the four persons ever parting company to raise inference that he
may have met his death at the hands of assailants other than the accused
persons. What we have on record,
therefore minus the confession, is evidence tending to prove the guilt of all
the three accused persons. A1’s confession comes in as additional evidence to
support that other evidence. I would
take it into consideration within the meaning of Section 27 of the Evidence Act
and find that it (A1’s confession) relates quite accurately, correctly and
truthfully to what happened on the night of 12/2/2007 as between the deceased
and the accused persons. I make that
finding. Believing as I do that the
evidence on record shows that all the three accused persons are guilty and
there are no co-existing factors that tend to weaken or destroy the inference
of their guilt, I find that the trio participated in the killing of Speaker
I now turn to
the issue of malice aforethought, that is, intentional killing.
aforethought is really a state of the mind.
It is not capable of proof by direct evidence. style='mso-spacerun:yes'> It can, however, be deduced from the
circumstances that accompany the commission of the offence in question.
Factors that are
considered by the courts in the determination of the existence or absence of
malice aforethought include:
- nature of
- nature of
injuries inflicted and on what part of the body, whether a vulnerable one
- the conduct of
the killer before or after the killing.
From A’s true
confession, the weapons used in killing Speaker Lawrence were 2 pangas. The
injuries were inflicted on the head, a vulnerable part of the body. style='mso-spacerun:yes'> The Doctor gave cause of death as hemorrhagic
shock due to bleeding from the multiple cut wounds and the left carotid.
As regards the
conduct of the killers, it is evident from the same source that the plan to
meet that evening was hatched in the morning.
In the evening the three accused persons found the deceased in a Bar and
bought him one glass after another of waragi.
By the time they reached Kabashaki river, the deceased was already
drunk. He therefore put up no
resistance. A2 then went to where he had
hidden the two pangas, picked them and used them to cut the deceased like they
were cutting a wild animal. The Doctor’s finding of multiple cuts on the head
is consistent with the six or so cuts mentioned by A1 in his statement.
murder there must not be any defence available to the accused. style='mso-spacerun:yes'> In the instant case, none has been raised by
the accused persons and none is in any view available to them. style='mso-spacerun:yes'> In my view, no reasonable person would
contemplate that death would not result from the accused persons’ acts, to
warrant reducing the charge to manslaughter.
I am of the considered view that if there has ever been a case of
premeditated murder, this is it.
For the reasons
stated above, I find that the killers, the accused persons, acted with malice
I have addressed
my mind to the issue of the alleged blood stains on the jacket and shirt. style='mso-spacerun:yes'> The stains could not easily be identified at
the hearing and no forensic tests were carried out on them. style='mso-spacerun:yes'> They had been exposed to all kinds of weather
in the two or so months in the bush. Be
that as it may, I have already made a finding, grounded in the credible
evidence of PW2, that the jacket and shirt were for A1 and A2
respectively. They threw away their own
garments, in any view, to avoid detection and they did so at the time when they
went to the river to wash soon after the incident, according to A1’s accepted
confession. This act of throwing away
their own garments soon after the killing is further evidence of A1 and A2’s
participation in the killing.
As for the
failure by the police to recover the ‘buveera’
mentioned by A1 in his confession, he was not categorical in his statement that
the same had been thrown in the pit latrine.
According to him, A2 and A3 left him in the compound and went towards
A2’s latrine. He then heard them style='mso-bidi-font-weight:normal'>“as if they were throwing the two buveera
and pangas into the latrine”. He did
not say that he was positive about that, to raise inference that he may have
lied in his statement. It was at
night. They may have hidden them
elsewhere. From the nature of his
statement, if he had positively identified where they were kept, he would have
stated so. The police failure to recover
those two items does not in my view in anyway weaken the inference of A1, A2
and A3’s participation in the killing.
Finally, I have
addressed my mind to the issue of common intention. style='mso-spacerun:yes'> For this doctrine to operate against accused
persons on the same indictment, it is not necessary that the accused persons
must have agreed or entered into a pact to commit the offence.
may be inferred from their conduct, presence at the scene of crime and their
actions or from their failure to disassociate themselves from the commission of
the offence. The law is that if violence
is used to execute a common intention, as indeed happened in this case, and
death results, then all the participants are guilty of murder.
circumstances of this case, I do not hesitate to find that the accused persons
shared a common intention in the killing of Speaker Lawrence. style='mso-spacerun:yes'> They are all culpable in terms of Section 20 of
the Penal Code Act.
consideration of the prosecution and defence evidence, the law involved and
after caution to my self on dangers of basing a conviction purely on
circumstantial evidence, I have accepted as truthful the prosecution evidence
of accused persons’ participation in the murder of Speaker Lawrence.
circumstances, the defences of alibi and denial raised by the accused persons
individually cannot stand.
has successfully destroyed them by adducing evidence which connected them with the
in this case, Mr. Bahemuka Jerome and Kinderesire Nathan, in a joint opinion
advised me to find the accused persons guilty and convict them. style='mso-spacerun:yes'> I entirely agree with their opinion.
I therefore find
A1 Turyasingura Denis, A2 Mbabazi Naris and A3 Byamukama Augustine guilty of
the offence of murder contrary to Sections 188 and 189 of the Penal Code Act
and convict them as indicted.
style='mso-spacerun:yes'> style='mso-spacerun:yes'> 26/11/2009
style='mso-bidi-font-weight:normal'>26/11/2009 Accused persons
style='mso-tab-count:2'> Mr. Martin Rukundo for prosecution
style='mso-tab-count:2'> Mr. Ndimbirwe holding brief for Mr. Matsiko
style='mso-tab-count:2'> Assessors present
style='mso-bidi-font-weight:normal'>Court: Judgment delivered.
style='mso-spacerun:yes'> style='mso-spacerun:yes'> 26/11/2009
style='mso-bidi-font-weight:normal'>Mr. Martin Rukundo:
style='mso-spacerun:yes'> The prosecution has no record of previous criminal
records of accused persons. However, I
submit that accused persons do not deserve any lenience.
This is because from
the time they were arrested to date, they have shown no sign of
repentance. The offence was planned and
executed after a long period of time whereby they should have changed their criminal
plans. They didn’t. style='mso-spacerun:yes'> They cut the deceased several times on the
accused persons was beastly. It deserves
highest level of condemnation.
I pray for a
style='mso-bidi-font-weight:normal'>Mr. Ndimbirwe: style='mso-spacerun:yes'> True deceased met a very rough death.
notwithstanding, we pray that court exercises lenience when passing
sentence. Maximum sentence is death. style='mso-spacerun:yes'> One of the cardinal points of sentencing is
that the accused reforms. They can
sentence would kill that chance.
Sentence them leniently.
style='mso-bidi-font-weight:normal'>A1: I pray for release. I did not
commit the crime.
style='mso-bidi-font-weight:normal'>A2: I am a Youngman.
style='mso-spacerun:yes'> When you lose in court, you accept the
judgment. When you are on remand, you repent
and we learn a lot which we can teach our colleagues at home. style='mso-spacerun:yes'> I call for a sentence which can allow me to
go back and help my people to understand.
style='mso-bidi-font-weight:normal'>A3: I am a Youngman.
style='mso-spacerun:yes'> I would request that in view of period spent
on remand, I be given a lenient sentence.
Given chance I can go to the village and tell the youth how to conduct themselves.
Sentence - style='mso-spacerun:yes'> reasons.
persons are first offenders. They have,
however, been convicted of a very serious offence which carries a maximum death
sentence. They ended life of a human being for no good reason or at all and did
so in the most dehumanizing manner. They
cut him as if they were cutting a pig. For this reason alone, they should
deserve no mercy. But as first
offenders, I am inclined to the view that they can reform. style='mso-spacerun:yes'> Going in for the maximum sentence may not be
in their best interests.
I notice that A1
was getting to 18 years of age when he committed the offence although he deceived
the police that he was 15 years old.
Under Section 105 of Trial on Indictments Act, no sentence of death can
be imposed on him.
For the role he
played in the killing, his age at the time, his co-operation with police and
taking all factors together, I consider a sentence of twelve (12) years
As for A2 and
A3, who were adults and should therefore have guided A1, they ended up
misguiding him. The offence they committed weighs down their pleas for mercy.
period of 2 years spent on remand, I sentence each of them, A2 and A3, to eighteen (18) years
Right of appeal