Further evidence that would corroborate that of PW1 was given by PW2, PW3 and PW5. Iwumbwe Sulaiman (PW2) testified that he responded
to the alarm of children who had gone to collect white ants. When he got to the scene of the crime he found the children Abu, Nantale Munawala and Babirye Aisha crying. When he asked them what happened to the deceased, they responded
that a man from Kawangzi’s home had beaten the deceased to death. He asked them to direct him to where he had gone and they
showed him the direction accused had taken. He followed it and found accused and one Kibwika Siraje along the path to the sell. No sooner had he reached them than the accused ran away. PW2 gave chase but the accused
disappeared. PW2 went and reported the incident to the local administration police.
Aminsi Bakibisemu’s (PW3) testimony was that he was summoned to go to the scene of the crime by his son Hassan Waiswa because
a man was assaulting his grandmother. When asked who the man was, Waiswa responded that it was a man from Kawanguzi’s place
who was with Kibwika. PW3 proceeded to the scene of the crime and on the way he met Ismail Bakibisemu crying. Ismail informed PW3
that a man from Kawanguzi’s home called Tagonsya had beaten up his grandmother and she was dead.
Detective Lubambo James who was PW5 informed court that after he had taken statements he returned to Mayuge Police Station where
he interrogated the suspect. He testified that the accused informed him that the whole incident began with a conflict over white
ants to which the deceased had denied the accused access. It resulted in an assault where, the accused revealed, that he kicked the deceased in the chest once. PW5’s testimony was not shaken in cross-examination.
Further cross-examination PW5 revealed that in his investigations at the scene of crime he sought to know what led to the death of the deceased. He interrogated some children who had been at the scene when the deceased
died. These, he said, were grandsons of the deceased and they informed him that it was the accused who assaulted the old woman.
The evidence of PW2, PW3 and PW5 corroborates that of PW1. The accused admitted that the deceased found him at the scene of the crime
with a child, most probably PW1. PW4 gave a similar story to the accused’s defence, which is not surprising because though
he was the Secretary for defence and he arrested the accused, he was the accused’s stepbrother. The defence of the accused
that he did not hit or push the deceased appears to have been a lie. I therefore find that the prosecution proved the participation
of the accused in causing the deceased’s death beyond reasonable doubt.
The final ingredient that had to be proved was malice aforethought. Malice aforethought is a state of mind. It cannot be proved by direct evidence but it may be inferred from circumstances such as the weapon used to kill, the part of the body
of the deceased targeted and the conduct of the accused before, during and after the death of the deceased (R v. Tubere  12 EACA 63). In this case the prosecution relied on evidence about the part of the body of the deceased that was targeted. PW1 testified that the
accused kicked the deceased in the chest and that he did so three times after the deceased had fallen down resulting from a push.
It was further submitted that the heart is a vulnerable part of the body and in this case, the deceased appears to have had a weak
heart. The post mortem report shows that she had signs of a heart failure patient. This made her heart even more vulnerable.
In order to establish whether malicious intent was formed by the accused, the events as they unfolded need to be examined. The accused
pushed the deceased who fell down after only one push. After she fell down, the deceased, an old woman of approximately 82 years
according to the post mortem report, posed no threat whatsoever to the life of the accused. She was in fact powerless to stop him
from collecting the white ants that were in dispute between the two. However, according to PW1 the accused went ahead and stepped
on or kicked her in the chest three times. It can be inferred from this additional conduct of the accused that he had formed a malicious
intent to either cause the deceased grievous harm or to kill her altogether.
S.191 (b) of the Penal Code Act provides that malice aforethought shall be deemed to be established by evidence proving knowledge that the act or omission causing death will probably
cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied
by indifference whether death is caused or not, or by a wish that it may not be caused. The accused’s action of kicking the
deceased in the chest, where the heart is found, was likely to cause death or grievous harm to the deceased. Any adult would know
that a violent kick to an old person might result into serious injury because of already existing infirmities due to old age.
According to s.191 (b) PCA, it is not necessary to prove that the accused had knowledge that the act or omission would cause death.
Even if the act was executed with indifference and it resulted in death, malice aforethought would still be inferred. It does not
matter that in the circumstances of this case the deceased had an underlying ailment as is indicated in the post mortem report. The
law in such cases is that the court considers the proximate cause of death (the kick which led to shock) and not the underlying illness (heart failure) that could have caused
the death of the deceased in the future.
The prosecution also relied on further evidence that the accused run away from the scene of the crime after the deceased collapsed
and died. PW1 testified that when he and his brothers sounded an alarm, the accused run away towards a swamp and efforts to find
him were futile until he was arrested later in the evening. PW2 testified that when he arrived at the scene of the crime, his younger
brother told him what had happened and showed him where accused had run to. PW2 gave chase and found the accused with his friend
Kibwika. As soon as the accused saw PW2 he fled.
PW4 also testified that the accused disappeared immediately after the incident. As Secretary for Defence of the area, he organized
a search and the search party looked for the accused in three villages in vain. PW4 later arrested the accused from his brother Kibwika’s
home several hours after the incident. He had to bind him in ropes to take him to the Police Station. PW5 the investigating officer
also testified that when he got to the scene of the crime he was informed that the accused was on the run and a drum was being sounded
for his arrest. Mr. Mooli Albert for the prosecution submitted that guilt and therefore malice aforethought should be inferred from
the accused’s actions.
The accused denied that he run away after the incident. He testified that he was at home after the incident and was idle all that
time between around 3.00 p.m. when the incident occurred and 6.00 p.m. when he was arrested. He denied that he run away and hid after the incident. He claimed he was arrested
from his stepfather’s house where he had been seating after the incident. The accused’s defence is contrary to the testimony of both PW2 and PW4 who informed court that during the search that was mounted for the accused, one of the places that they looked was his stepfather’s home but they did not find the accused. The accused’s defence that he was all along at home from the time that the incident occurred until his arrest was therefore
I find that the accused had formed a malicious intent when he kicked the accused in the chest. His behaviour after the incident was an indicator of guilt. Malice aforethought was by these two facts established. As a result, the prosecution proved this final ingredient of the offence beyond reasonable doubt.
The assessors in this case gave a joint opinion in which they advised me to convict the accused and I agree with them. Since the prosecution proved all the ingredients of the offence the accused is hereby convicted of murder as indicted.
Irene Mulyagonja Kakooza