Court name
High Court of Uganda
Judgment date
31 March 2009

Uganda v Twesigye (HCT-05-CR-SC-2006/51) [2009] UGHC 240 (31 March 2009);

Cite this case
[2009] UGHC 240

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBARARA

HCT-05-CR-SC-051 -2006

UGANDA................................................................... PROSECUTOR

VS

TWESIGYE FRED..................................................... ACCUSED

BEFORE: THE HON. MR. JUSTICE LAWRENCE GIDUDU

JUDGMENT

Twesigye Fred, hereinafter referred to as the accused is indicted with murder contrary to sections 188 and 189 of the Penal Code Act.

He denied the charges hence this trial.

The prosecution case is that on 11/3/03 at about 9.00 p.m., Nakabugo (PW3) who was wife to the accused, was in the kitchen preparing supper when she heard a sound like a gun shot. She got out to ask the accused who had been conversing with the deceased what the sound was but the accused told her to continue with her cooking. Shortly, she heard the same sound and decided to go into the house to see what it was all about. That is when she saw the deceased, Byarugaba, lying down while the accused held an axe. The deceased was facing down and convulsing.

PW3 asked the accused if he had killed a person.

PW3 ran out but since she was pregnant, she could not go far before the accused caught up with her as she fell down. The accused picked her up and returned her to the home and sat her down.

Meantime, the accused dragged the body out of the house and threw it in a pit and leveled it with soil. The deceased was struggling for breath as the accused filled the pit. The accused warned her not tell any one lest she faces the same fate.

Her relationship with the accused changed from that day in that the accused became hostile and held her prisoner in the home. He did not allow her to move about as before.

One and half years later (October 2004) PW3 left the accused’s home when she felt very insecure after the accused’s repeated threats to kill her and her three children.

Before PW3 left, she gave her contact where she could be contacted promising to give information about the disappearance of Byarugaba (deceased).

Eventually, the deceased’s brother contacted PW3 and with the help of the police, PW3 led them to the spot near the verandah of the accused’s house where the body of Byarugaba or his skeleton still dressed in clothes which Mugisha (PW4) identified as his was exhumed.

The accused was arrested upon a report by Asiimwe (PW2) who had got a tip off that the accused was the one who had killed Byarugaba. He was arrested before PW3 was brought to help with investigations.

Dr. Sendi Bwogi (PW1) who was present when the body was exhumed made a post mortem report in which he described the body as of an adult African male. It was a skeleton in a wide pit. It was clothed in a red jacket, red under-wear and blue jeans that had faded due to soil conditions.

The body/skeleton had a fracture on the left temporal perietal bone which was crashed.

The cause of death was neurogenic shock from brain laceration due to the fracture on the head.

The same doctor observed that the fracture must have been caused by a sharp but hard object and death must have been instant.

The accused having denied the charges contended in his sworn defence that he had been away in Lukaya-Masaka vending fish for over one year when he returned to the village on 25/10/04. He had left the deceased in the village when he went to Masaka. On 8/11/04, he was arrested on his way home.

He contends that the charges were brought in bad faith since PW3 who was his wife had defrauded him of 2,000,000/= which he had given her to keep and she had rang him to pick the money only to be arrested. Further, that the deceased and PW4 who were both his step brothers used to discriminate against him that he was not of their clan and they used to envy him since he had been given a bigger portion of land by their late grand- father.

Once an accused denies the charges, the prosecution has a duty to prove all the essential elements of the offence against the accused beyond reasonable doubt. The accused has no duty to prove his innocence.

See Sekitoleko vs Uganda[1967] EA 531

Uganda vs Dusman Sabuni[1981] HCB 1

On an indictment for murder, the prosecution has a duty to prove the following ingredients beyond reasonable doubt.

  1. That the deceased is dead.
  2. That the death was unlawful.
  3. That whoever caused that death did so with malice aforethought.
  4. That the accused participated.

See Ugandavs Kassim Obura & Another9811 HCB 9.

To prove death, the prosecution submitted that since 11/3/03, the deceased had never been seen alive until November 2004 when PW3 led the police to exhume his body from a spot near the accused’s house. PW2, PW3, PW4, PW5 all saw the body which PW1 confirmed was a body of an adult male African.

PW4 and PW3 identified the jacket as the one that the deceased last wore on that day.

The defence contested the fact of death on grounds that the body could not be identified since it had decomposed and was skeleton. That the body was beyond recognition and that PW3

 

cleared the issue of identification when in Re-examination she said “I am the one who showed the doctor (PW1) that this was the body of