Court name
Supreme Court of Uganda
Judgment date
10 August 2017

Kazarwa v Uganda (Criminal Appeal-2015/17) [2017] UGSC 22 (10 August 2017);

Cite this case
[2017] UGSC 22
Short summary:

Role of Appellate Court, Criminal law

Coram
Katureebe, CJ
Kisaakye, JSC
Arach Amoko, JSC
Mwondha, JSC
Tibatemwa-Ekirikubinza, JSC

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: (KATUREEBE, CJ, KISAAKYE, ARACH-AMOKO, MWONDHA, TIBATEMWA EKIRIKUBINZA, JJSC)

CRIMINAL APPEAL NO. 17 OF 2015

     KAZARWA HENRY................................................................... APPELLANT

VERSUS

     UGANDA .......................................................................... RESPONDENT

(Appeal from the decision of the Court Appeal at Kampala before Nshimye,
Mwangusya,
Buteera, JJA dated the 20th day of January, 2014)

JUDGMENT OF THE COURT

This is a second appeal filed by the appellant Kazarwa Henry after having been dissatisfied and aggrieved by the judgment and decision of the Court of Appeal. The appellant with two others were indicted on the charge of murder C / s of 188 & 189 of the Penal Code Act. It was alleged that the  appellant together with two others in the night of 14th February, 2009 at   Kyabazade village murdered Kyakabale Willy. The Court of Appeal upheld  the conviction and the sentence of life imprisonment against the appellant.

The appellant appealed to this Court on two grounds as embodied in the memorandum of appeal as hereunder:-

(1) The Learned Justices of the Court of Appeal having found as a fact that Kamugisha Tobias pleaded guilty as a person who murdered late Kyakabale Willy on the 14th of February, 2009 at Kyabazala, erred in law in the re-evaluation of evidence thereby wrongly confirmed the  appellants' conviction of murder.

(2) The Learned Justices of the Court Appeal erred in law when they failed to re evaluate mitigation of sentence basing on circumstances of the case thereby wrongly dismissed the appellants appeal against sentence of life imprisonment.

The appellant prayed;

(a) that the conviction be quashed and sentence be set aside

(b) in the alternative the life imprisonment sentence that was imposed against the appellant be reduced.

Background:

The brief background of the appeal is that on the 14th February, 2009 the deceased was attacked on his way from a bar to his home along Kaguta Road Lyantonde. The postmortem report showed that he died of hemorrhage shock resulting from deep cut wounds. Three people were arrested in connection with murder. These were Nyakahangura Kenneth  (AI) Kamugasha Tobias (A2) and Kazarwa Henry (A3). During the early stages  of the Trial A2 pleaded guilty to the murder charge. He was convicted on his own plea of guilty to the murder charge. He was sentenced to life imprisonment. The trial proceeded against the two accused persons the appellant and Nyakahangurata A1). They were found guilty of having committed murder and sentenced to life imprisonment. The appellant
appealed to the Court of Appeal and the Learned Justices after reappraising  the e
vidence found that his conviction was based on proper analysis of the available evidence by the trial Court. They accordingly found no merit in the appeal and dismissed it.

At the hearing Mr. Rukundo represented the appellant and Ms Lucy Kabahuma Senior State Attorney represented the State.

Both Counsel filed written submissions which they adopted.

Counsel for the appellant submitted that the prosecution case was mainly premised on dying declaration of the deceased and the evidence of A2 Kamugisha Tobias who pleaded guilty and was sentenced to life imprisonment. He argued that the Court of Appeal erred in law when after re evaluation of the evidence wrongly confirmed the Appellant's conviction of murder, and yet it found as a fact that Kamugisha Tobias pleaded guilty tthe charge of murder of the deceased. He submitted that the Court of Appeal as the first appellate Court had a duty under rule 30 of the Court rules to re-evaluate the evidence and subject it to fresh scrutiny. He argued that it failed to exercise great care when confirming the appellant's conviction. He referred to the testimony of PW3 Basome John where
Basome stated:

"I was at home sleeping at about 10:00 p.m. when 1 heard an alarm by Ntwale asking us to help saying Ronald's workers are killing us. When 1 went to where Ntwale was, 1 found Kyakabale lying down in a farm. 1 found that he had been cut behind the neck and arm and he was talking. He told him that Kamugisha Tobias had cut him...

Then Ntwale, Bayendeza, Nakanjako Jane and himself carried the injured man to Atwijukye's home. That they then rang John Jones asking him to bring a vehicle and they took him to hospital. He again said he did not go to hospital with them among others."

He submitted that the appellant was disputing the ingredient of participation and he argued that the appellant pleaded alibi in his defence which the prosecution failed to discredit or disprove. There was no assessment by Court to verify whether it is true or false. The evidence of the appellant was not shaken during cross examination. Counsel reproduced the appellant's testimony at page 14 of the proceedings lines 1 - 30

"On 14th February 2009 1 was at the school working from 8:00 a.m. to 6:30 p.m.. Thereafter 1 went home. 1 reached at 7:00p.m. and found my wife Kanyesigye Edvance. 1 was then served with food and slept. We were with our child Nayebare Agnes. I slept up to 7:00 a.m. the next day Sunday 15th February 2009. Manager Kiiza Robert came for me to go and wash the cows of Ronald Rutta. I  left my wife at home. We sprayed the cows for three hours. I then returned home and was informed that Lubega had called from town. Lubega had caused my arrest earlier on the 12th February 2009 and I do not know his other name, I knew where he stays in town. The arrest was because I had planted trees in the land which was not ours. It is true his brother had instructed us to plant those trees ... On the 6th June I lost my child of one month and we took the body to Rukungiri. I decided to stay and construct a house among others. I never went to Rukungiri to hide. I know George Atwijukye he is from the neighbouring sub- county of Kabasomi while he was Nyarusanji. I was arrested on  17th January 2010 a year after.

Counsel submitted further that section 11 of the Judicature Act gives the Court of Appeal powers of the Court of original jurisdiction when determining the appeals. S.132 of the Trial on Indictments Act and S. 34 (2) of the said Act gives an accused person the Right of Appeal to Court of Appeal against conviction and sentence on a matter of law, fact or mixed law and fact. He argued further that paragraph (e) of the said provision allows Court of Appeal to vary or confirm the sentence where the appeal is against sentence only. He submitted that the legality of sentence of the entire natural life in prison was not addressed by the Court of Appeal. Counsel  cited the case of Attorney General v. Susan Kigula and 417 others Constitutional Appeal No.3 of 2005 where he quoted the holding "Not all murders are committed in the same circumstances, and all murders are not necessarily the same in character."

He argued that the issues to be determined on the legality of sentence for life imprisonment are:-

(1) whether it should be like in the case of Tigo Stephen v Uganda SCCA No 8 of 2008 which held that life imprisonment means the remaining whole natural life of the appellant

(2) Whether it should be like in the case of Livingstone Kakooza v Uganda SCCA No 17 of 1993 where Supreme Court held life imprisonment in light of S. 47 (7) of the Prisons Act meant essentially
a s
entence of 20 years imprisonment. He submitted that the Court takes judicial notice of the fact that there was no cross appeal to maintain the sentence of life imprisonment against the appellant. He
prayed that the sentence of life imprisonment be set aside and or reduced.

Counsel for the respondent Ms Lucy Kabahuma in reply opposed the appeal and submitted as follows among others. That the Court of Appeal could not be faulted because the Learned Justices referred to rule 30(I) (a) of the Court  of Appeal rules. The rule gives them power to re-appraise the evidence on record as the first appellate Court. They exercised their duty citing the authority of Kifamunte Henry v Uganda Criminal Appeal No 10 of 1997 she further submitted that throughout the judgment they re-appraised as shown from paragraph 20 page 6 of the judgment so it was not true that they failed in their duty. She argued that the Justices of the Court  of Appeal referred to the case of Mushikoma Watete and 3 others v Uganda Criminal Appeal No 10 of 2000, to explain the defence of alibi and the need for the prosecution to execute the burden of placing the accused at  the scene of crime. At page 11 of paragraph 2 the Learned Justices found that the defence of alibi was considered by the learned trial Judge and by doing so they executed the duty of the 1st appellate Court of re-evaluating the evidence to make a finding of fact on the evidence available. The Learned Justices of the Court of Appeal, she submitted, went further and said that although the trial Judge did not state clearly that he was considering the appellant's alibi, he actually did consider it and discredited it in his judgment. She argued that the Learned Justices considered the defence of the appellant where he stated that on the night of 14th/02/2009 he was in Lyantonde and left for Rukungiri on 15/02/2009. They found that his defence of alibi was properly discredited and agreed with the trial Judge. She prayed that the 1st ground be dismissed.

On the 2nd ground Counsel submitted that in the Court of Appeal, there was no ground specifically addressing the variance of sentence. She submitted that at page 4 of the record of proceedings, the appellant's prayer (b) was to the effect that the conviction and sentence be set aside which Counsel of the appellant prayed for at the hearing of the appeal. She further submitted that by the time the Justices of the Court of Appeal passed the sentence they had in their mind Supreme Court Criminal Appeal No 08 of 2009 Tigo v Uganda where it was held that life imprisonment means imprisonment for the remaining life of the convict.

She further submitted that there was no need for a cross appeal, so it was not true that the respondent did not argue in Court of Appeal to maintain the sentence of life imprisonment against the appellant as submitted by the appellant's Counsel.

She prayed that Court finds no merit m the appeal and upholds the conviction and sentence.

Mr. Rukundo for the appellant submitted in rejoinder that Article 28 (3) of  the Constitution was infringed upon as the appellant was not given the opportunity to call witnesses to support his alibi among others. He reiterated his earlier prayer.

Consideration of the appeal

Section 5 (I) of the Judicature Act Cap 13 provides that in criminal matters in the case of an offence punishable by a sentence of death an appeal shall be to the Supreme Court as follows:

(a) Where Court of Appeal has confirmed a conviction and sentence.... the accused may appeal as of right to a Supreme Court on a matter of Law or mixed law and fact."

Counsel for the appellant faulted the Court of Appeal for failure to properly exercise its duty as the 1st appellate Court. The duty of reappraising the evidence particularly when they found as a fact that Kamugisha Tobias had pleaded guilty to the murder, of Kyakabale Willy. The Court went ahead to  confirm the conviction. Rule 30 of the Court of Appeal rules provides

"(I) on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction the Court may (a) re-appraise the evidence and draw inferences of fact (b) .......... "

We are alive to the duty of the 2ndappellate Court, which is to determine whether the first appellate Court properly re evaluated the evidence before coming to its own conclusion except in the clearest of cases where the first appellate Court has not satisfactorily re-evaluated the evidence, the appellate Court should not interfere with the decision of the trial Court. See (Criminal Justice Bench Book 1st Edn. 2017 pages 283 and 284).

It was apparent that pleading guilty perse by Kamugisha Tobias (A2) , and the Learned Justices finding it as a fact does not mean that they failed in their duty of re appraising and evaluating the evidence afresh. From the record the Learned Justices of the Court of Appeal first reminded themselves of their duty as a first appellate Court as provided in rule 30 (I) (a) and (b).
The Learned Justices cited and or referred to the case of
Kifamunte Henry v Uganda also supra.

The question is whether they exercised their duty properly of subjecting the  available evidence to fresh scrutiny as the law requires and the authorities cited held. We are compelled to quote among other things what the case of Kifamunte held:

"the first appellate Court has a duty to re hear the case and to reconsider the materials before the trial Judge. The appellate Court must then make up its own mind not disregarding the
judgment appealed from but carefully weighing and considering it."

The Learned Justices re-appraised as follows at page 6 of the judgment paragraph 20

" we shall now proceed to re appraise the evidence. The evidence on record is that the deceased and the accused persons lived onthe same village. They knew each other. They met in a bar on the day the deceased was killed. The deceased raised alarm when he was attacked and cut. PW3, 4 & 5 answered the alarm. They found the deceased lying in a pool of blood and the deceased told them he had been cut by the three accused persons. PW4 said he had seen the three accused persons run away. According to PW4 there was moonlight and that's how he managed to see them. The learned trial Judge analysed the evidence of the dying declaration and found it consistent and reliable. He also found that the dying declaration was corroborated by the witness who reported that he saw the three accused persons and there was moon light which enabled him to identify them."

PW4's evidence was briefly to the effect that on the material night he was in a bar with his wife Jane Nakanjanko (PW5), Kyakabale deceased and left at 10:00 p.m. but left the deceased in the bar. After about 30 minutes they heard an alarm from the road. They woke up and called Kyakabale's wife and run towards the direction the alarm was coming from. It is not clearwhy they had to call Kyakabale's wife before they knew where the alarm was coming from? He said they found the deceased lying down and his  assailants had run away. He saw the accused persons and that they were three Kenneth, Kazarwa and Kamugisha. He said there was moon light and that was how he recognised them. He said the deceased was still talking and had told them that it was Kazarwa, Kenneth and Kamugisha who cut him. He said that there were land wrangles between the two bosses George Atwijukye and Ronald. He took the deceased to George's home together with PW3, Jane Nakanjako and the widow of the deceased. They then went to Kaguta Road and called John Jones. When John Jones delayed he (PW4) went on foot to Lyantonde and took Kyakabale to hospital. While still treating the deceased at 6:00 a.m. he died. During cross examination he said they had drank waragi from the bar since 7:00 p.m. and they were just chased away by the owner of the bar PW6 at 10:00 p.m. He said they did not get drunk and the scene of crime was between a forest, thick and tall bush. He further said that he saw the accused persons but they were running away and they were in a distance of 10 meters from him. He also said the accused persons found them in the bar and Kenneth was holding a panga. He said he answered the alarm by running and sounding an alarm too.

PW3 testified that he was at home and heard the alarm by PW4 asking them for help saying that Ronald's workers were killing them. He went where Ntwale (PW4) was and found Kyakabale lying down in a farm. He saw that he had been cut behind the neck and arm and he was still talking. He told him that Kamugisha Tobias had cut him. He said he knew Kazarwa Henry as a resident of Kaguta Road.

PW5 said that on the material day 14th February 2009, she went to drink at 6:00 p.m. with her husband PW4 with the deceased. She said that she knew Kazarwa because he worked with Ronald. She said that while at the bar two men came with a panga and sat on the veranda.' The men left them there. That she and her husband PW4 left the deceased at the bar drinking,since they were drunk and the bar was going to close. She stated they were drunk though they could walk properly. When they reached home and were going to sleep they heard an alarm of Kyakabale saying people were killing him. They woke up and went with the wife of the deceased. She said they found him when he had been lifted and being brought to his bed. A lot of blood was flowing from the wounds. The deceased said it was Kenneth Kazarwa and Tobias who cut him with a panga. She said there was a grudge between Ronald and George and the people who cut him worked for Ronald. The deceased was an employee of George. She stated she didn't know the two men who had a panga and she has never seen them again.

She could not recognize them. She said she didn't know if PW3 was there as he found when the deceased was being taken away. PW6 testified among others that on the 14th February 2009 at around 7:00 p.m. she found Kyakabale (deceased) PW4 and PW5 drinking in her bar. She served them with alcohol (booze) after which they left. After two hours PW4 and Bayendeza came and asked her for a phone to contact his boss saying that Kyakabale attacked but was not yet dead.

The learned Justices found that there was corroboration of the dying declaration in the testimony of PW4 on the identification of the appellant and the two co-accused persons at the scene of crime. They believed that PW4 had seen the appellant when he (PW4) answered the alarm by the deceased and had seen them earlier on the same night in a bar. They didn't accept Counsel for the appellant submission to the effect that the dying declaration was not corroborated.

We find the evidence as summarised herein above full of inconsistencies and contradictions from the start. PW3 said that the deceased told him that it was Kamugisha who cut him. PW4 stated that he told him that it was the three Kamugisha, Kenneth and Kazarwa the appellant. Indeed as Counsel for the appellant submitted if the two were in the same place one heard that it was Kamugisha and the other said it was the three of them how could that inconsistence be minor? Be that as it may it was important that the evidence of proper and correct identification was re-appraised and subjected to fresh scrutiny. PW4 stated that, there was moon light which helped him to recognize the appellant and the two co-accused persons. And that he saw the appellant and his co accused/ convicts in 10 meters distance running away from the scene of crime. The scene of crime was between a forest and tall bush which was thick. He said he was coming running also sounding an alarm.

PW5 testified that while they were drinking two men came with a panga and  sat on the veranda. She said she didn't know them and could not recognize them even in court and she has never seen them again.

PW4 said that the appellant and the two co-accused found them in the bar. To begin with PW4 and PW5's evidence fundamentally differ in that PW4 said the two men found them there. That Kenneth was holding a panga and he didn't say who the other one was and what he was wearing. PW5 said that two men not three came and left. PW6 who came to serve alcohol (booze) had not come. It is difficult to believe that the appellant was in company of PW4 and PW5 basing on that evidence. It casts a lot of doubt on our mind. There is no evidence showing that the appellant drunk
together with PW4 and PW5 as PW4 alluded in his testimony.

But even if the evidence was there which was not the case the evidence available fell short of strengthening the prosecution case to the required standard.

This case depended upon correct and proper identification of the accused person devoid of mistaken identity when the conditions were difficult. It also partly depended upon circumstantial evidence.

The Learned Justices said "we do not accept the submission of Counsel for the appellant that the dying declaration was not corroborated by any other evidence. We find that the dying declaration was sufficiently corroborated. "

We have to point out that when Ntwale (PW4) testified, he said he heard the alarm from the road, it was only when they reached the scene of crime that they knew it was Kyakabale. While PW5 his wife said they heard Kyakabale raising an alarm and they went and woke his wife up, PW3 said he heard PW4 sounding an alarm saying Ronald's workers are killing us. None of them i.e. PW4 and PW5 was with the deceased when all that was going on.

The evidence is inconsistent in that each witness heard his or her own version so there was no way it could be relied upon.

The appellant claimed that there was moon light which helped him to recognize the appellant, but this was moonlight amidst a forest and thick tall bush. It was not stated how bright it was. The Court of Appeal clearly stated when reappraising the evidence that there was moonlight and the three accused persons who included the appellant were known to PW4 as they were on the same village. The appellant had been with PW4 and PW5 that evening in the bar. As stated earlier the conditions favourable for proper and correct identification were completely lacking. The moonlight perse and the distance PW4 recognised the appellant and the time he spent observing them made it dangerous to convict and confirm the conviction against the appellant. The trial Judge and the Learned Justices of the Court of Appeal did not first caution themselves on the danger of mistaken identity.

The conditions prevailing cast doubt in our mind as to whether the moonlight was sufficient as to pierce through the tall thick bush and forest where PW4 alleged to have recognised the accused persons running from the scene of crime. The evidence doesn't avail the length of time PW4 spent observing the appellant running away. In fact earlier in his testimony PW4 had stated that they found when they had ran away.

It has been reiterated time and again in a series of decisions by this Court and its predecessors, that where prosecution is based on evidence of a single identifying witness the Court must exercise great care so as to satisfy itself that there is no danger of basing conviction on mistaken identity.

See Abdulla Bin Wendo and another v R [1953] EACA 166 , Roria v Republic [1967] EA 583, Abdalla Nabulere & Another v Uganda Cr. Appeal No 9 of 1978 (un reported) Moses Kaona v. Uganda Cr. Appeal No12 of 1981 (unreported) and Bogere Moses and another v. Uganda Cr. Appeal No I of 1997 (un reported).

It was stressed in the case of Abdulla Nabulere and Another v Uganda supra, that "apart from light during the incident, and familiarity of the assailant to the victim, other factors, such as distance between them, the length of time, the victim had to observe and even the opportunity to hear the assailant are factors to look out for. The Court said "All these factors go to the quality of the identification evidence.
If the quality is good the danger of mistaken identity is reduced but the poorer the quality the greater the danger. When the quality is good as for example, when the identification is made after a long period of observation, or in satisfactory conditions by a person who knew the accused before
, a Court can safely convict even though there is no other evidence to support the identification evidence, provided the Court adequately warns itself of the special need for caution."
(Emphasis is ours)

In the case of Isanga Lazaro, Amuza Kimbugwe, Ngobi Mutoigo v Uganda Criminal Appeal No 10 of 99 (SC) it was said:-

We think that the aforesaid is even more compelling where the prosecution is based on a dying declaration even if the declaration is repeated to several witnesses.

In the instant case the evidence of moonlight came out from PW4 alone who stated that he saw the accused persons run away 10 meters from where he was. There was no other source of light. None of the witnesses said that they heard the deceased mention the name of the appellant at the time of  the attack. But even if the deceased had done so, it could not lessen the legal requirement for caution to ensure that the identification evidence is such as would not leave possibility of mistaken identity before convicting.
Indeed there is no indication that the learned Justices and also the learned trial judge considered the quality of the identification evidence as contained  in the deceased's dying declaration as above analysed. If they had exe
rcised caution they would have recognized that the identification of PW4 was prone  to mistaken identity for various reasons. Firstly there was virtually no time to positively and correctly identify the appellant because of the distance from which he alleged to have observed the accused persons whom he said were running away.

Secondly the natural vegetation surrounding the scene of crime where the deceased was attacked which was not favourable at all as earlier said.

Thirdly the kind of light available and fourthly, the unreliable evidence of  PW4, PW3 and PW5, fifthly, the presumption that Ronald's workers were killing them even before they had identified the attackers.

There was no other evidence from the prosecution like evidence of an investigating officer.

It is apparent therefore that the Court of Appeal did not re-evaluate the evidence which it accepted as corroborative of the dying declaration. This is clear from the whole judgment. It is not enough for Court to merely remind itself of its duty as a first appellate Court and citing the provisions of the court Rules as the learned Justices did and also citing an authority or authorities to that effect. The reappraising has to clearly come out by analyzing afresh the whole evidence and subject it to fresh scrutiny as it's clearly stated in many authorities including the Kifamunte case Supra.

The Court of Appeal referred to the Supreme Court decision in Criminal Appeal No.9 of 1987 Tindigwihura Mbahe v. Uganda where it was held among others- ...

"evidence of dying declaration must be received with caution because the test of the cross examination may be wholly wanting; and have occurred under circumstances of confusion and surprise; the deceased may have stated this inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in darkness when identifications of the assailant is usually more difficult than day light.

The fact that the deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case. It is not guarantee of accuracy. It is not a rule of law that in order to support a conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration a deceased person, made in the absence of the deceased and not subject to cross examination unless there is satisfactory corroboration."

Also see (Okoth Okale and others v. Republic [1965] EA 55 and Tomas Amukono v Uganda [1978].

It is clear from the passages as reproduced in this judgment from the court of Appeal judgment, that the evidence of the dying declaration was treated like evidence of a single eye witness who appeared before court and there was an opportunity to subject him to thorough questioning with a view of testing the veracity of his evidence. But as was held in the Nabulere Abdulla case supra even III a case of an eye witness who testifies in court more caution has to be taken.

The learned Justices after citing and quoting the Supreme Court decision  in Criminal Appeal No. 10 of 2000. Mushikoma Watete and 3 others v Uganda, found that the appellant's defence of alibi was considered by the learned trial Judge in his judgment. They also found that the judge analysed  the evidence and made a finding although he did not state that he was dealing with the defence of alibi.

Again here the Court of Appeal judgment shows that the Learned Justices based the finding on isolated evaluation of the prosecution evidence alone as the trial Judge did, which was contrary to the decision it cited of Bogere Moses and Another v Uganda (SC) Criminal Appeal No I of 1997 (unreported). It was held among other things that, "Court must base itself upon the evaluation of the evidence as a whole. Where the prosecution adduces evidence showing that the accused was at the scene of crime and the defence not only denies it, but also adduces evidence showing that the accused person was elsewhere at the material time. It is incumbent on the Court to evaluate both versions judiciously and give reasons why .... the other version is accepted ..... "

The Learned Justices of the Court of Appeal believed the prosecution  evidence that the appellant was in a bar of PW6 together with PW4. PW6  was the owner of the bar and she told Court that after PW4 and PW5 had left about half an hour after, PW4 came back and asked for a phone and told  her that Kyakabale had been attacked. PW4 also said that they had left Kyakabale drinking. So when PW3 testified saying that he heard PW 4 making an alarm and saying that Ronald's workers are killing us, who was PW4 referring to when he said he had already reached home and were gointo sleep but at the same time he made the alarm in plural. He used the words "killing us." This evidence casts doubt on the prosecution case.
According to PW4 and PW5's evidence it is clear that they were the last persons who were with the deceased in the bar. The evidence of PW3,
PW4 and PW5 was unreliable because of the inconsistencies.

The appellant said at that time he was at his home sleeping. He gave a full account of where he was on the 14th February 2009. He stated he was at the school working from 8:00 a.m. to 6:30 p.m. He went home thereafteand was served with food by his wife Kanyesigye Edvance and slept. The next day 15th February 2009 he went to wash Ronald's cows and he left his  wife at home and went with one Robert who came for him. He sprayed the cattle and came back home after 3 hours. When he came back home he was  informed that one Lubega had called him from town. He said Lubega had
caused his arrest earlier on 12th February 2009 because the appellant had planted trees on land which did not belong to them. When he saw police come to his home, instead of waiting to be arrested for nothing he went back to the school where he worked earlier in the day. He thought the Police had come to arrest him again. He said he went back home after doing his work at school. He stated he lost his child on 6th June 2009 and took the body to Rukungiri. He decided to stay and construct a house. He denied that he went to Rukungiri to hide. He denied having killed Kyakabale. He said he was arrested on 17th January 2010 at the Police Post at, Kiyenje where he had gone to stand surety for his cousin brother. He was driven to Ntungamo and he was asked about the death of Kyakabale which he denied knowledge of.

DW3 was the appellant's wife Kanyesigye Edvance who testified that by thetime Kyakabale was attacked on the 14th Feb. 2009 they were at their home sleeping with her husband. She said the appellant earlier went to work on that day and he did not move out at night when he came back from work until 6:00 a.m. on the 15th Feb. 2009. He went to spray cows where he used to work. Then he returned about 9:30 a.m. and they sat on their veranda.

She further stated that their house is by the road side and while there Policemen came to their home. The appellant walked away and the police arrested her. She said they lost a child in June 2009 and went to the village to take the body and the appellant stayed there as he was building a house.
She testified about the wrangles between George and Ronald because of Kyakabale (deceased) who had cut Ronald's banana plantation. Kyakabale was charged in Court. That Ronald and George were fighting over land. She said sometimes she would take materials in the village and would find her husband (the appellant).

PW11 D/CPL No. 35170 Mugisha Albert testified that on 17th February 2009 while attached to Lyantonde Police Post he was requested by D/CPL Mwesigwa to go with him to conduct a search at Nyakahangura's home on  Kaguta Road. He said he had seen the appellant in Lyantonde and he did not remember recording a statement from him before. That he remembered Lubega Frank complaining but he did not know if the complaint was against the appellant. It was a land complaint of malicious damage, criminal trespass etc. but he did not recall many details.

PW10 was D/CPL No 21293 Francis Mwesigwa. He was with DPC and while investigating the murder at Kyabazaala village as they were moving towards the scene, they reached the home of one of the suspects (Appellant's). He further stated that when they stopped the appellant started running away.
The police gave chase but to no avail. He said that before then John Jones had complained about the appellant as the head worker of Lutta with whom they were wrangling. He said he had earlier handled the case of the workers of the two people fighting where the deceased's house was attacked and his windows broken until he locked himself in the house and was rescued by police.

From the evidence above there was no evidence to disprove that he was not in his house in Kyabazaala Kaguta village Road as indeed confirmed by DW3. There was no evidence from the prosecution that he never lost a child in June 2009 though this was not material or relevant to the alibi since it  occurred long after the offence had been allegedly committed by the appellant. We are concerned that the learned Justices of the Court of Appeal said in the judgment that the appellant does accept that he was in the area where the offence was committed on 14th- 2- 2009. We have to point out that the issue is about "scene of crime" Scene of crime cannot be enlarged to mean an area. This was a statement by the Court not supported  by evidence on record. The many decisions available including the Bogere case cited supra, by the very Court of Appeal the focus was on scene of crime not area of crime. If a murder is committed in Kampala District, it would be too far fetched to say that a suspect has been put at the scene of crime because he or she too was in Kampala District or area of that time.

The Learned Justices went on to say, "the following day l5th-Feb-2009, he  was washing spraying cows in the same area." This was not the scene of  crime. It was clear from the appellant's evidence that he left for Rukungiri in June 2009. The murder was on 14-Feb 2009. The Court of Appeal stated that the appellant left for Rukungiri on 15th Feb, 2009 this is not any where in the prosecution evidence. The prosecution evidence was that he ran away when he saw the police truck come to his home. There was no evidence of where he had ran to but these were imports of the trial Court.
He was not arrested that ver
y night from the scene of crime as the Court of Appeal.

It is trite law which has been stated by this Court over and over again that the prosecvution always has the burden to prove the case beyond reasonable doubt in order to bring the guilt of the accused person home.
See
Sekitoleko v Uganda [1967] EA 531, Justine Nankya v Uganda SCCR Appeal No. 24 of 1995 (Unreported) citing with approval Okoth Okale v R. (1955) E.A. 555

Those decisions emphasise also among others that an accused has no obligation to prove his innocence. Even where he or she opts to keep quiet throughout the trial or offers a very incredible defence, he or she can only be convicted upon the strength of the prosecution case against him or her.

This means that before an accused is convicted the trial judge has to see into it that the prosecution has proved its case to the required standard. In our view for the trial Court to have found that the conduct of the appellant amounted to circumstances which inferred that he put squarely at the scene of crime and was farfetched. This Court in many decisions have set the circumstances the judge have to consider and ensure that they exist before  a conviction is entered.

It was held: In Simon Musoke v R [1958] EA  715:- "in a case depending exclusively or partially upon circumstantial evidence, the Court must before deciding upon a conviction find that, the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis than that of guilt." See also Teper v R. (2) AC 480 which held, "it is necessary before drawing the inference of the accused's guilt from the circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference." While  Taylor on Evidence (11th Edn.) page 74 state "the circumstances must be such as to produce moral certainty to the exclusion of every reasonable doubt."

Also part of the decision among other things in Roria v Republic [1967] EA 583 at page 584 D-E. was

"A conviction resting entirely on identity invariably causes a degree of uneasiness and as Lord Gardner LC said in House of Lords there may be a case in which identity is in question and if any innocent people are convicted today I should think that in nine cases out of ten – if they are as many as ten – it is on a question of identity. That danger is of course greater when the only evidence against the accused person is identification by one witness and although no one would suggest that a conviction based on such identification should never be upheld, it is the duty of this Court to satisfy itself that in all circumstances it is safe to act on such identification."

 

The circumstances the trial Court relied on were that the appellant walked away or run away when he saw the Police come to his house. But this was the next day after the murder and many hours after. It was not the night of the murder.

Besides the appellant in his testimony stated that he went to Rukungiri in June 2009 to burry his daughter. There was no evidence by the prosecution to discredit or shake it. These were four months after the murder. One has to assume that those four months the appellant was in Lyantonde at his place of work.

The material and relevant issue was the scene of crime whether there was evidence placing him at the scene of crime, i.e. the particular place where the attack was done.

In regard to the inconsistencies in the prosecution evidence which could not have been overlooked by the trial Judge and also by the learned Justices of the Court of Appeal, the evidence of PW3, PW4and PW5 as a whole was inconsistent in the material particulars of the case as already discussed in this judgment.

These inconsistencies were major and deliberate lies to Court. The prosecution through PW10 and PW11 adduced evidence of the wrangles between the workers of Ronald Lutta and one George. Also the appellant and DW3 testified about them. There were police cases that ended in Court. The appellant had been arrested only 2 (two) days before the attack on 22 Kyakabale. There was no evidence to prove that it was the wrangles which culminated in Kyakabale’s attack which resulted into his death.

The law on inconsistencies and contradictions have been stated over and over again by this Court. In the Bumbakali Lutwama and 4 others SC Cr. Appeal No. 38 of 1989 (unreported) citing with approval Alfred Tejar v Uganda Cr. Appeal No. 167 of 1969 EACA (unreported) it was held among others that “inconsistencies and contradictions in the prosecution case may be ignored if they are minor or do not point to deliberate untruthfulness on the part of the prosecution witnesses …..” The learned Justices of the Court of Appeal ought to have reappraised this evidence. If they had done so, they would not have confirmed the trial Court’s conviction.

Accordingly we find that the Learned Justices of the Court of Appeal erred in Law and fact when they failed to properly reappraise the evidence before the Leaned trial Judge which resulted into wrongly confirming the appellant’s conviction.

The second ground of appeal was to the effect that the learned Justices failed to re-evaluate mitigation of sentence basing on the circumstances of the case and wrongly dismissed the appellant’s appeal against the sentence of life imprisonment. We perused the High Court record regarding sentencing proceedings recorded on the 28-4-2011. At page 45 the trial Judge only mentioned Nyakahangura (A1) and gave reasons for imposing the sentence of life imprisonment.

He wrote: “I have noted the reasons and pleas of leniency in mitigation. I have borne in mind the gravity of the offence committed by the convicts. They are each sentenced to life imprisonment. Right of appeal against conviction and sentence explained.”

In the Court of Appeal the appellant had 4 grounds of appeal, namely;

(1) The trial Judge erred in law and fact when he relied on the dying declaration adduced by the prosecution to convict the appellant.  

(2) The trial Judge erred in law and fact when he ignored the appellants alibi and convicted him of murder.

(3) The trial Judge erred in law and fact when he did not properly evaluate the evidence before Court thereby arriving at the wrong decision.

(4) The trial Judge erred in law when he disregarded Rules of Evidence and procedure thereby rendering the whole trial irregular and a nullity.

The appellant prayed for orders that;

(a) The appeal be allowed and the judgment of the High Court be quashed and set aside.

(b) The conviction and sentence of the appellant be set aside.

It is apparent that, failure by Court of Appeal to re-evaluate mitigation of sentence basing on the circumstances of the case, was not a ground before the Court of Appeal. We cannot therefore fault the Learned Justices for a matter that was not before them. The appellant’s prayer was to have the conviction and sentence set aside. We accept Counsel for the respondent’s submissions on this ground. This ground would fail.

Be as it may we are compelled to say something about the way the trial Judge handled the sentencing proceedings. There was no mention of mitigation of sentence. There was a misdirection in law by the learned Justices of the Court of Appeal to have failed to direct themselves on the issue of sentencing when it had been part of the prayers. The judgment of the Court of Appeal simply stated: I find that conviction was based on proper analysis of the available evidence by the trial Judge. I found no merit in this appeal and accordingly dismiss it. The conviction of the trial Judge is upheld and sentence imposed is confirmed.

The Learned Justices of Court of Appeal caused a miscarriage of justice, therefore when they confirmed the sentence without properly analysing the judgment and sentencing procedure of the trial judge to appreciate how the sentence came about. They also didn’t give reasons for their upholding the sentence of life imprisonment for the rest of natural life of the appellant. 24 The prayer in the instant case was to quash the conviction and set aside the sentence. The first ground of appeal succeeds, the learned Justices failed in their duty as a 1st appellate Court to reappraise the evidence and subject it to fresh scrutiny which resulted into the wrongly confirming the conviction against the appellant. The conviction is accordingly quashed. Having quashed the conviction the sentence falls by the wayside and it cannot stand. In the circumstances of this case we allow the appeal, quash the conviction and set aside the sentence of life imprisonment.

The appellant should be released and set free unless if he is being held on other lawful charges against him. Dated at Kampala this ………………. day of …………………2017

HON JUSTICE BART KATUREEBE

CHIEF JUSTICE

HON. LADY JUSTCIE DR. ESTHER KISAAKYE

JUSTICE OF THE SUPREME COURT

HON. LADY JUSTICE STELLA ARACH-AMOKO

JUSTICE OF THE SUPREME COURT

PROF . LILLIAN TIBATEMW A-EKIRIKUBINZA
JUSTICE OF THE SUPREME COURT.

Dated at Kampala this 10th  day of August 2017.

 

 

50.

 

51.

5

The appeal raises a substantial point of law concerning
the meaning of life imprisonment in our Penal system
having regard to the provisions of Section 47(6) of the
Prisons Act which states that for the purpose of

      10                  calculating remission, a sentence of imprisonment for life
shall be deemed to be twenty years imprisonment. This
point of law assumes greater significance following the
decision in the case of
Attorney General Vs. Susan Kigula
& 417 Others Constitutional Appeal NO.3 of 2006 where

      15                  this Court decided that the death penalty though
Constitutional was not mandatory but discretionary.
This would make a sentence of life imprisonment the
next most severe sentence and probably the most
effective alternative to the death sentence
.

20

The ground of Appeal in Tigo was framed as follows: "The learned
Justices
of Appeal erred in law when they upheld the sentence which
sentence
is illegal by virtue of its ambiguity."

Learned counsel for the appellant in Tigo submitted that from the

     25 way the sentence was pronounced it was not clear whether the
sentence imposed is imprisonment for the rest of the appellant
's
life or for only twenty years and that the ambiguity rendered the
sentence illegal since the appellant was entitled to know the
specific duration of his incarceration. He argued that the fact that

     30        life imprisonment under the Prisons Act 2006 is deemed to be
twenty years is a co
nstruction which is limited in purpose to the
computation of remission. It was his contention that the Court of
Appeal ought to have cleared the ambiguity. He prayed that the
Supreme Court makes the clarif
ication and substitutes the

35  sentence of life imprisonment with a definite sentence.

35

 

 

 

 

 

 

 

 

 

 

 

 

       5    Appellant received a life sentence which is twenty years according to
section
49 (7) of the Prisons Act, Act which provides (that): "For the
purpose of calculating remission of sentence, imprisonment for life
shall be deemed to be twenty years imprisonment."

A reading of the Court's reasons for arriving at the decision to

     10 interfere with the sentence clearly shows that the Court's comments
regarding the meaning of life imprisonment were not essential to its
decision, the comments were
obiter dictum and cannot therefore be
said to have established a precedent
.

On the other hand, I opine that the question before us in the
 present matter is the very question that this Court dealt with in
Tigo vs. Uganda (Supra) and that is:

What is the meaning of life imprisonment? Is it for
the rest of the life of the convict or for twenty years
only?

     20       In Tigo Stephen vs. Uganda (Supra), this Court dealt with an appeal
against the decision of the Court of Appeal confirming the sentence
of "life imprisonment" by the High Court against the appellant who
had been convicted of defilement.

In her sentencing order, the trial judge in the Tigo case stated inter

     25        alia: I take into account the fact that he has been on remand for 2
years,
so taking that into account, he is sentenced to life
imprisonment
(20 Years), so that the rest who intend to do the same
can stand warned.
"

In confirming the sentence passed by the Trial Judge, the Court of
30 Appeal said: "The learned trial Judge took into account all the
mitigating factors available
to the appellant and passed a sentence
of life imprisonment. We see no reason to disturb that sentence. "

At the beginning of the judgment in Tigo, the Justices of the
Supreme Court had this to say:

34

 

 

 

 

 

 

 

 

49.

 

       5   Arising from the above, I find that the prosecution proved the
case against the appellant to the required standard. This was
the finding of the Trial Judge, confirmed by the Court of Appeal.

I have reached the above conclusion as indicated in this
judgment based on the following: the dying declaration, the

10 evidence which placed the appellant at the scene of crime and
the evidence that discredited the appellant's alibi.

Consequently, I find no reason to depart from the concurrent
findings of the two lower courts. I therefore uphold the
conviction.

15 Therefore, ground 1 fails.

Ground 2

As already mentioned in this judgment, the appellant's counsel
argued that the Court of Appeal ought to have pronounced itself on
the legality of the sentence of life imprisonment. Counsel referred to

     20       two decisions of this Court - Livingstone Kakooza vs. Uganda
(Supra) and Tigo Stephen vs. Uganda (Supra) -
which gave different
meanings to the sentence of "life imprisonment".

In Livingstone Kakooza vs. Uganda (Supra), the appellant was
convicted of manslaughter. He was sentenced to 18 years

 imprisonment. In arriving at the sentence, the Learned Trial Judge
stated inter alia thus:
"Mindful of the two years the accused has spent
on remand I sentence him to
18 years."

The appellant appealed against the sentence on the ground that it
was harsh and manifestly excessive. Commenting on the sentence,
 this Court said inter alia that:

We agree with the learned counsel for the appellant that the sentence
of
18 years was harsh and manifestly excessive. The appellant had
been on remand in custody for two years and the learned judge took
this factor (into consideration) in passing sentence. In effect the

33

 

 

 

 

47.

 

48.

       5    presenting witnesses to testify that they were at the particular place
where the accused says he was but he was not present in the said
place. The alibi can also be discredited when witnesses who testify in
support of the accused having been in a place other than the scene
of the crime are rendered untruthful.

      10 Having evaluated the evidence of PW4 alongside the evidence relating
to the alibi put forward by the appellant, the trial judge came to the
conclusion that the appellant was at the scene of the crime and not
in his home with his wife.

As a judge determining the issue in a second appeal, I am aware

     15   that the two lower courts reached concurrent findings of fact as
to whether the appellant was present at the scene of crime. I
can only interfere in those concurrent findings if I am satisfied
that the two courts were grossly wrong and or applied wrong
principles of the law. I am mindful of the fact that I neither saw

     20 witness PW 4 nor DW 3 at the trial. I uphold the finding that
the appellant's alibi was discredited.

In conclusion, I cite with approval what Lord Denning said in Miller
vs Minister of Pensions 2 All ER 372
in reference to the standard
of proof needed to convict the accused in a criminal case thus:

     25                 That degree is well settled. It need not reach certainty,
but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond
a shadow of a doubt. The law would fail to protect the
community if it permitted fanciful possibilities to

     30                deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote
possibility in his favour which can be dismissed with
the sentence "Of course it is possible but not in the
least probable", the case is proved beyond reasonable

     35                       doubt; nothing short will suffice.

32

 

 

45.

 

46.

        5     2006, this Court held that, "it is trite law that the trial judge must
adopt the impression on the demeanour of the witness
by testing it
against the evidence given
by the witness in the case as a whole. "

It is clear that the trial judge, who saw and heard the witnesses did
not believe DW 3 to be a truthful witness. On the other hand, the trial

     10   judge believed the testimony of PW 4 that the appellant was at the
scene of crime on
14th February 2009. I have no reason to depart
from the findings of the trial judge - findings based on his
impressions about the witnesses. In this, I am guided by this Court's
decision in
Baguma Fred vs. Uganda Supra where the Court cited

     15 with approval, the East African Court of Appeal decision in Pandya
vs. R [1957] EA,
thus:

We reiterate the legal position, which was upheld by
the East African Court of Appeal in Pandya vs. R [1957]
EA and has been applied over time in other decisions

     20                 of this Court and its predecessors, that
When the Question arises which witness is
to be believed rather than another, and that question
turns on manner and demeanour, the Court of Appeal
always is, and must be, guided by the impression made

     25                on the judge who saw the witnesses. But there may
obviously be other circumstances, quite apart from
manner and demeanour, which may show whether a
statement is credible or not; and these circumstances
may warrant the court in differing from the judge, even

     30                on a question of fact turning on credibility of witnesses whom the court has not seen. (My emphasis)

An alibi can be discredited either by prosecution evidence which
squarely places an accused at the scene of the crime or by
prosecution evidence which directly negates or counteracts the

     35       accused's testimony that he was in a particular place other than at
the scene of the crime. The latter can be by the prosecution

31

 

 

43.

 

44.

.:

 

 

   5      until later when he wanted to take him to work for George. Police told
1),S that they had come to arrest us because we had killed Kyakabale.
He knows Bashome and Ntale
. He passed behind the house when he
saw Police. My husband drunk but not much from a bar in Lyantonde.
George's workers did not drink from town. We would sometimes go

10         together to the bar to watch football. Sometimes he would dig while
other times he would go to school. We own pangas and hoes and store
them in the sitting room.
»

I note that DW3's testimony supported the testimony of the appellant
in regard to where the appellant was during the night of
14th February
15 when the deceased was attacked. Nevertheless the Trial Judge did
not believe her story.

It is clear on the record that the trial judge did not specifically
mention that he was dealing with the defence of alibi. However,
inference that he considered the defence can be drawn from his

20        comment about the demeanour of DW 3 - the only witness who was
presented by the defence to support the appellant's contention that
at the time when the offence was committed, he was asleep in his
home
. The trial judge had this to say:

((1 studied her demeanour carefully as she testified and saw her pain

25        and agony as she tried to state facts which she must have known were
not facts. No wonder she could not sustain it and started contradicting
her husband A3 [appellant] big time. From the people he claimed he
did not know and [yet] she acknowledged knowing them to whether or
not he drunk."

30        Case law abounds to the effect that the demeanour of a witness is
relevant in determining their credibility and the weight to be given to
their testimony. Case law also implores appellate courts to be mindful
of the fact that a trial judge had the advantage of seeing and hearing
witnesses
, which advantage appellate courts do not have. (See for

35       example Baguma Fred vs. Uganda, SC Criminal Appeal No.7 of
2004). In Sewanyana Livingstone vs. Uganda: SCCA No.19 of

30

 

 

41.

 

42.

--

 

 

   5        ((I know Kazaruia as my husband. On 14 February we were at home
sleeping at the time when Kyakabale was supposed to have been
murdered. Earlier he had gone to work and when he returned we ate.
After eating we slept. He did not move out at night until 6.00 a.
m. to
go and spray the cows. He returned about 9.30 p.m. and found me at

10 home and we sat on our veranda.

We are near the road so we saw police coming home and when we
saw them he also went away and they arrested us who were seated.
I told him about a telephone call from Lubega. I told him not to call
phone again. He said that Lubega had accused his arrest a week

15  before.

I was arrested with 7 others: Tobias, Kizza Robert, Bright, Choma,
Emmanuel, Dan and myself. I know where my husband was arrested
from, in Rukungiri his home area. We lost a child in 2009 June and
that is how he went to village. I was selling tree and going to school

20        sometimes when he was away. He stayed in the village building a
house. I ever went to the village between June 2009 and January 2010
taking building materials and money and I used to find him there. He
did not run to the village to hide.

CROSS EXAMINATION: That is Nyakahungura Kenneth whom I have

25        known for 4 years; he was staying on Kaguta road. My husband did
not know him. When they came to arrest he was not with us
. There
were wrangles between George and Ronald because of Kyakabale
who had cut banana plantations of Ronald and he was taken to court
and charged. They were also fighting over land
, I think. I do not know

30        the workers' issues. After burial he returned a bit then went back. I
saw Ntwale and Bashome since
2003 while working for Ronald. Later
they worked for George. My husband worked for Ruta since 2002 and
must have known them
.

Police came and my husband walked away and I don't know where
35 he was going. They were four Policemen with John Jones; I did not
bother to count them. John Jones used to relate well with my husband

29

 

 

39.

 

40.

       5    credible? We find that although the learned trial judge did not state
clearly that he was considering the appellant's alibi, he actually did
consider it and discredited it in his judgment. The appellant in his own
defence stated that he was in Lyantonde on the night of 14/02/2009.
He said he left on 15/02/2009
. That was after the offence had been

      10 committed. The appellant was put at the crime scene by the
prosecution evidence that the judge discussed. His defence of alibi was
properly discredited
. We agree with the trial judge.

I opine that the defence of alibi is only relevant when discussing the
whereabouts of a suspect on the specific day and time of commission

      15  of a crime. In the present matter, the assault was said to have taken
place on
14th February 2009 at 10.00 p.m. or thereabout. The
appellant in his defence testified that on
14th February 2009, at 6.30
p.m., he arrived home from work and thereafter slept with his wife
till morning. In order to strengthen his defence, the appellant brought

20  his wife (DW 3) to testify.

I note that the evidence which the Court of Appeal relied on to arrive
at the conclusion that the appellant's alibi was not to be believed is
actually evidence which only proves that the appellant was in the
village where the crime was committed - Lyantonde - on the day of

     25 commission of the crime. Indeed the appellant himself and his wife,
never said that he was away from Lyantonde on the day of the crime.
The evidence did not in any way disprove the appellant's
contention/ alibi which was that he was in his house (in Lyantonde),
with his wife, when the offence was committed. On this point I find

30  that the Court of Appeal Justices misdirected themselves.

Be that as it may, I am in agreement with the Court of Appeal Justices
that
"The judge analyzed the evidence and made afinding although
he did not state that he was dealing with the defence of alibi.
»

Apart from the appellant himself, DW 3, the wife of the appellant, was
35  the only witness called in his defence. She testified as follows:

28

 

 

37.

 

38.

       5                mean proof of the required standard that the accused
was at the scene of crime at the material time.

To hold that such proof has been achieved, the Court
must not base itself on the isolated evaluation of the
prosecution evidence alone
, but must base itself upon

      10                  the evaluation of the evidence as a whole. Where the
prosecution adduces evidence showing that the
accused person was at the scene of crime, and the
defence not only denies it
, but also adduces evidence
showing that the accused person was elsewhere at the

      15                  material time, it is incumbent on the Court to evaluate
both versions judic
ially and give reasons why one and
not the other version
is accepted. It is a misdirection
to accept the one version and then hold that because
of the acceptance per se the other version is

     20                        unsustainable."

In the instant case, there is evidence that the appellant was at PW 5's
bar the evening the offence was committed. The deceased raised an
alarm which was answered by witnesses that testified in Court
. The
deceased explained to them he had been cut by the accused person
s

     25   who were known to him. PW 4 who answered the alarm testified that
he saw the three accused persons when he was responding to th
e
alarm. He said there was moonlight which enabled him to identify the
appellant and the two other accused persons. In his defence the
appellant says that on 14/02/2009, he worked from 8
.00 a. m. to 6.30

     30        p. m. when he went home reaching at 7. 00 p. m. He slept with his wife
and denies ever having committed the offence His wife, Kanyesigye's
evidence testified
as DW 3, supporting his line of defence. The
appellant does accept that he was in the area where the offence was
committed on 14/02/2009. The
offence was committed that night. On

     35        15/02/2009 he said he was washing cows in the same area. He says
he went to Rukungiri but was not going to hide. He went to build a
house. Was the appellant put at the scene of the crime? Is his alibi

27

 

 

35.

 

36.

5 "The learned trial judge was also faulted for his failure to consider the
defence of alibi that was raised by the appellant.
... The appellant's
defence of alibi was considered by the learned trial judge in his
judgment. The judge analyzed the evidence and made a finding
although he did not state that he was dealing with the defence of alibi.

      10 In other words, it was the finding of the Court of Appeal that the
defence had been evaluated by the Trial Court. Nevertheless the court
stated that they would, as a first appellate court re-evaluate the
evidence and make a finding of fact on available evidence as to
whether the defence of alibi was properly evaluated. The court

     15 reproduced the law on alibi as set out in the case of Mushikoma
Watete and Ors vs. Uganda SCCA No. 10 of 2000
and then went
on to state as follows:

"There is evidence by PW6, Nuwabine Mentor. He owns a bar. She
testified that on
14/02/2011 she returned from her parents' home at

     20        about 7. OOp. m. She found Kyakabale (the deceased), Ntwale (PW 4),
Nakanjako (PW 5), boozing in her bar. She asked them to go away at
about
9. 00 p. m and they left. After about two hours, she was informed
that Kyakabale had been attacked and was injured but was still alive.
He later died in the morning.

     25        PW 4 testified that he indeed was with the deceased and the accused
persons at the bar of PW6. This witness heard the alarm of the
deceased at about 10.00p.m. He ran to the scene and on the way he
saw the appellant and the two co-accused flee the scene. On arrival he
was informed by the deceased that he had been attacked and cut by

     30       the three accused persons ... This is the evidence we shall re-evaluate
on the principle stated by the Supreme Court in
Bogere Moses and
another vs. Uganda SCCA No.1 of 1997
(unreported) when it held
inter alia that:-

"What then amounts to putting an accused person at

     35                      the scene of crime? We think that the expression must

26

 

 

 

 

 

 

 

 

 

 

 

 

        5     Case law on the duty of the prosecution on the one hand and of an
accused who sets up an alibi is abound. In
Festo Androa and
Kakooza Joseph Denis vs. Uganda, Criminal Appeal No. 1 of

1998, this Court stated what has been held in various cases thus:

It is trite that by setting up an alibi, an accused person

     10                   does not thereby assume the burden of proving its
truth so as to raise a doubt in the prosecution case ....
The burden on the person setting up the defence of
alibi is to account for so much of the time of the
transaction in question as to render it impossible (that

     15                        he could) have committed the imputed act.

In the matter before Court, the appellant denied having participated
in the offence and stated that
:

((1 do not know anything about killing Kyakabale. On 14th February I
was at the school working from 8.00 a.m. to 6.30 p.m. Thereafter I

20 went home. I reached at 7. 00 pm and found my Wife. I was then served
with food and then slept. I slept
up to 7 a.m. the next day, Sunday 15th
February. "

It was argued before this Court that the appellant had pleaded an
alibi in his defence which was not disproved by the prosecution and

25 not properly assessed by the trial court. That as such, the learned
justices of Appeal failed to e
xercise great care when confirming the
appellant
's conviction.

At the Court of Appeal, the appellant stated in Ground 2 of the appeal
that the tr
ial judge erred in law and fact when he ignored the

     30        appellant's alibi and convicted him of murder. It was submitted that
the Trial Judge did not consider the said defence
.

In regard to this ground of appeal, the Court of Appeal disagreed with
the appellant and had this to say:

25

 

 

 

 

 

 

 

 

 

 

 

 

       5    from Lyantonde was for purposes of evading arrest. The trial judge
then concluded that this conduct, together with the dying
declaration, coupled with the evidence which placed the appellant
squarely at the scene of the crime was proof of the guilt of the
appellant.

      10        I am in agreement with the conclusions of the Trial Court that
running away from the police on the day following the commission
of a crime is conduct pointing more to the guilt of the appellant
than to his innocence. Indeed in
Uganda vs. Terikabi (1975) HCB
63 and Uganda v G.W. Simbwa Appeal No. 37 of 1995
the

      15        Supreme Court held that when a suspect runs away soon after an
offence has been committed the act of running away points more to
the guilt of such suspect than to his or her innocence; and it may
corroborate some other evidence in the case that might require
corroboration. Similarly, in
Rex vs. Tubere s/o Ochan the East

      20       African Court of Appeal held that the conduct of an accused person
before or after the offence in question might sometimes give an
insight into whether he participated in the crime. And In

Remigious Kiwanuka vs. Uganda, Criminal Appeal No. 41 of
1995
this Court stated that:

     25                 This Court has held in many cases that the
disappearance of an accused person from the area of
a crime soon after the incident may provide
corroboration to other evidence that he has
committed the offence. Sudden disappearance from

     30               the area is incompatible with innocent conduct of
such a person.

The defence of alibi

The essence of an alibi is to prove that at the time of the commission
of the crime, the suspect was somewhere else and it was impossible

35 for him to have been at the scene of crime.

24

 

 

 

 

 

 

 

 

 

 

 

 

 

 

       5     Rukungiri in 2009, Kyakabale took me to th~ side and told me that he
was getting death threats from Ruta and tf7.e wqrkers. He spectfied
Ruta, Kazarwa and Kizza.
He said they wanted to give him money so
he could leave my farm but he refused. A week later he met his death. »

There was also the testimony of PW 10 - D / Corporal Francis who

10 stated that:

"Before then) John Jones had complained about Kazarwa being the
head worker of Ruta with whom they were wrangling and I had earlier
handled the case of the workers of the twofighting where Kuakabole'e
house was attacked and his windows broken until he locked himself

15 in the house and was rescued by police.”

I opine that such testimonies provided. the context within which the
assault occurred and serves as circumstantial evidence linking the
appellant to the crime.

I must also refer to the conduct of the appellant on the day following

20 the crime. PW 10 – D/Corporal Francis testified as follows:

On 15th February 2009 while at Lyantonde Police Station) we went to
investigate a murder at Kyabazala village together with the DPC.

Towards the scene) we reached the home of one of the suspects
Kazarwa where he and his fellow workers were. When we stopped

     25        Kazarwa started running away) I knew him) through his banana
plantation) and Police gave chase but in vain.
..

DW 3, wife to the appellant also testified that when the police
approached their home on
the 15th February "my husband walked
away and I don't know where he was
going".

     30        Referring to the said testimony, the trial judge came to the
conclusion that such behaviour was inconsistent with the conduct
of an innocent man. The learned judge also considered the fact that
the appellant later on left Lyantonde and went to Rukungiri for
months
. In the view of the trial judge, the departure of the appellant

23

 

 

 

 

 

       5   mentioned above which aided the positive identification of the
appellant ruled out the possibilities of mistaken identification.

I am aware that it is only PW 4 who testified that he had seen the
assailants who then ran away from the scene of crime. None of the
other witnesses said they had found the appellant or indeed any of

     10 the other persons mentioned in the dying declaration, at the scene of
crime. This difference in the substance of the testimonies is
understandable since PW 4 was the first to arrive at the scene of
crime and arrival of would be witnesses would certainly cause the
assailants to run away.

     15        I take note that in arriving at its decision, the Court of Appeal
Justices concentrated on witnesses PW 3, 4 and 5 but made no
mention of the testimonies of PW 8 and 10
. I consider such lapse to
be an example of failure, albeit partial, by a first appellate court to
evaluate the material evidence presented before the trial court and

     20       such is an error in law." (See Kifamunte vs. Uganda and Bogere
Moses vs Uganda Supra).
In line with the said authorities, I have
found it necessary to re-valuate the evidence of these particular
witnesses as if I were a first appellate court.

PW8 who was the deceased's employer testified that the deceased had
25 confided in him a week before he died that he was getting death
threats from Ruta and the workers, Kazarwa and Kizza. He testified
that:

"I know Kyakabale as my former worker in Kyabazala Lyantonde as
a herdsman got to know of the death of Kyakabale
... in the morning.

30 I think he was killed because of a land wrangle between me and Ruta.

One time a group of people from Ruta 's farm attacked him at his home
in
1998 ... Another time Kyakabale fought with Kizza and Kazarwa,
Ruta's workers around the same time. He was arrested and locked up.
 was summoned to Police and court and
stood surety. As we were

     35       leaving court, Ruta found us outside and expressed dissatisfaction
and he said he would deal with him
. One time while on the way to

22

 

 

33.

 

34.

        5                       out. In so doing, the court must consider the
evidence as a whole, namely the evidence if any of
factors favouring correct identification together
with those rendering it difficult.

Regarding the evidence of identification (recognition) of the

     10   appellant by PW 4; the Court of Appeal stated that the presence
of moonlight and the distance of 10metres at which PW4
recognized the appellant as one of the assailants favoured
correct identification.

It is an accepted fact that the deceased was attacked at night. I also

     15 note that the scene of crime as described by PW 1 0 on cross-
examination is that it was bushy with spear grass. These two details
may be looked at as factors which render correct identification
difficult. However, PW 4's evidence reproduced above shows he was
able to identify the appellant as one of the deceased's attackers at a

     20        distance of 10 meters with the aid of moonlight, a distance which I
consider close enough to identify a person who is well known to you.
The appellant was not a stranger - he was residing in the same village
at Lyantonde. In
R vs. Turnbull (supra), court held that
"identification by recognition may be more reliable than

     25        identification of a stranger." And PW4 had also stated that he had
been with the assailants at a bar earlier on in the evening and seen
what they were wearing and that this helped him identify them while
they were running away from the scene of the crime.

Furthermore, the presence of moonlight was a factor that aided the

     30 positive identification of the appellant as one of the assailants at the
scene of crime. Indeed although PW 4 testified that he did not see the
third assailant, he mentioned Kazarwa (appellant) as one of the
assailants he managed to identify at the scene of crime. I am
convinced that in spite of the evidence of factors which may be

35 considered to render correct identification difficult, various factors

21

 

 

32.

 

       5                   of the identification or identifications. The reason for
the special caution is that there is a possibility that a
mistaken witness can be a convincing one, and that
even a number of such witnesses can all be mistaken.
The judge should then examine closely the

     10                 circumstances in which the identification came to be
made particularly the length of time, the distance, the
light, the familiarity of the witness with the accused.
All these factors go to the quality of the identification
evidence. If the quality is good the danger of a

     15                 mistaken identity is reduced but the poorer the quality
the greater the danger. When the quality is good, as for
example, when the identification is made after a long
period of observation or in satisfactory conditions by
a person who knew the accused before, a court can

     20                safely convict even though there is no other evidence
to support the identification evidence, provided the
court adequately warns itself of the special need for
caution.
[See also: Abdulla Bin Wendo & Another vs. R
(1953) 20 EACA 166 and Roria vs. Republic (1967) EA

     25                  583].

In Bogere Moses vs. Uganda SCCA No. 1 of 1997, this Court
restated the law on identification and gave guidelines on the
approach to be taken in dealing with evidence of identification of an
assailant as follows:

     30                    The starting point is that court ought to satisfy itself
from the evidence whether the conditions under
which the identification is claimed to have been
were or were not difficult and to warn itself of the
possibility of mistaken identity. The court then

     35                   should proceed to evaluate the evidence cautiously
so that it does not convict or uphold a conviction,
unless it is satisfied that mistaken identity is ruled

20

 

 

30.

 

31.

       5    In Abdalla Bin Wendo and Another v. R. (1953), 20 EACA 166
the East African Court of Appeal held that:

(a) The testimony of a single witness regarding identification must
be tested with the greatest care
.

(b) The need for caution is even greater when it is known that the

     10   conditions favouring a correct identification were difficult.
(c) Where the conditions were difficult, what is needed before

             convicting is 'other             evidence' pointing to          guilt.

(d) Otherwise, subject to certain well known exceptions, it is lawful
to convict on the identification of a single witness so long as the

     15 judge adverts to the danger of basing a conviction on such evidence
alone.

In R v Turnbull [1976] 3 All ER 549 Lord Widgery Chief Justice
stated the law on identification by an eye witness as follows:

Whenever the case against an accused depends wholly

     20            or substantially on the correctness of one or more
identifications, the judge should direct the jury to
examine closely the circumstances in which the
identification by each witness came to be made. How
long did the witness have the accused under

     25               observation? At what distance? In what light? Was the
observation impeded in any way, as for example by
passing traffic or a press of people? Had the witness
ever seen the accused before? How often?
...

In Abdalla Nabulele & Another vs. Uganda Criminal Appeal.
30 No.9 of 1978 court held:

Where the case against an accused depends wholly or
substantially on the correctness of one or more
identifications of the accused which the defence
disputes, the judge should warn himself and the

     35               assessors of the special need for caution before
convicting the accused in reliance on the correctness

19

 

 

29.

 

       5    who took him to the hospital. As I mentioned earlier in this judgment,
although the fact of consistency is no automatic guarantee of
accuracy, it goes to the weight given to the dying declaration.

I must also point out that the nature of the assault necessitated the
attackers to be in close proximity with their victim - the deceased was

      10 cut with a panga. This factor would make it easy for the victim to
recognize his assailants who in any case he knew very well since they
were village mates.

Arising from the above analysis, I come to the conclusion that the
first appellate court properly re-evaluated the evidence of the dying

     15   the declaration, appropriately subjected it to the law and arrived at
its own conclusion that it was reliable and admissible as evidence of
the appellant's participation in the assault that killed the deceased.

Identification of the appellant at the scene of crime

The case for the prosecution was that the appellant was one of the
20 assailants identified at the scene of crime by PW 4 who answered the
deceased's alarm. The evidence was accepted by the Court of Appeal
as evidence which corroborated the dying declaration.

Aware of the possibility that a witness though honest may be
mistaken, case law on guidelines for testing the reliability of

     25 testimony placing an accused at the scene of the crime abounds and
courts have over the years evolved rules of practice to minimize the
danger that innocent people may be wrongly convicted. I however
note these guidelines have in the main been developed within
contexts where conviction
would be based solely on visual

     30        identification evidence, which is not the case in the matter before this
Court. Nevertheless I have used the said guidelines to test the
reliability of the evidence of the only witness who testified that he was
able recognize the appellant as he run away from the scene of the
crime.

18

 

 

 

27.

 

28.

5  PW 5 stated:

When we reached home and had decided to sleep} we heard an alarm
of Kyakabale saying people were killing him. My husband
(PW 4) and
Bayendeza went first then Mrs. Kyakabale and I followed
. By that
time} we found that he had already been lifted and was being brought

      10  to his bed. There was a lot of blood flowing from his wounds. Then he
said that Kenneth, Tobias and Kazarwa had cut him with a panga.

PW 7 stated:

I know Kazarwa Henry and Nyakahungura Kenneth. I was in
Lyantonde that day then around
11 pm, I got a call from Kaguta road

     15   Police Post where Ntwale and Bayendeza had reported a case. Police
asked
me to go because two people were reporting that Kyakabale had
been cut. I drove to the Police Post and found there two policemen. I
drove to Georqe's place} found Nalongo his Wife} Nakanjako and
Kyakabale in critical condition. By this time Ntwale and Bayendeza

     20 had gone to town to look for me. Kyakabale told me that Kazarwa,
Tobias and Kenneth are the ones who had cut him. That Kazarwa
came (rom the (ront and Tobias cut him from behind with a panga.

When I tried to put him in a vehicle I found five cuts; three on the arm)
one on the shoulder and another by the ear... The reason for cutting

     25 him is because there has been a prolonged land wrangle between
George and Ronald Ruta whereby one time Kazarwa fought with
Kyakabale
... I got Dr. Charles Mugenyi who tried to give first aid
because he was bleeding severely and died at 6.30 am. Thereafter I
rushed to Lyantonde Police Station and reported. When we reached

     30        the scene we found all the workers gathered in front of Kazarwa's
house. When he saw a pick
-up with Police he ran away, they gave
chase but could not get him
. They arrested Kazarwa's Wife that day.

It is also clear from the evidence that the deceased was consistent in
his dying declaration
, having told PW4 and PWS who arrived at
35 different times at the scene of the crime that the appellant and two
others had assaulted him and later repeated the same names to PW7

17

 

 

 

 

 

 

 

 

 

 

 

       5     corroborated by any other evidence. We find that the dying declaration
was sufficiently corroborated by other evidence.
"

It is clear from the judgment of the Court of Appeal that the learned
Justices re-evaluated the evidence which the prosecution presented
regarding the dying declaration and arrived at its own conclusion

      10 that the dying declaration was reliable evidence that the appellant
participated in the assault which led to the death of the deceased
.

I also find that the court was alive to the need for caution in admitting
a dying declaration as evidence that the appellant participated in the
assault of the deceased
. This is evident in the fact that the court

      15 pointed out the circumstances surrounding the identification of the
appellant by the deceased i.e. the appellant was well known to the
deceased, the two had been at the same bar that evening and at the
time of the attack, there was moonlight. It must also be for the same
reason that the court went to great lengths in pointing out other

     20 evidence which linked the appellant to the crime such as testimony
of PW 4 which placed the appellant at the scene of crime and which
the Justices of Appeal accepted as corroboration of the dying
declaration
. The learned Justices also evaluated the circumstances
that surrounded the identification of the appellant by PW 4 as a

     25 further test of the reliability of the dying declaration. Thus they made
mention of the fact that PW4 knew the accused persons very well
since they lived on the same village, that there was moonlight and
this enabled PW4 to identify the appellant and the other accused
persons
. The appellate court also made mention of the fact that

     30        witnesses other than PW4 who arrived at the scene of the crime were
told the same story by the deceased. Although the court did not in its
judgment specify who these witnesses were, I am inclined to believe
that the court was referring to the testimony of PW 5 as well as that
of PW 7 which was on record and in which each of these witnesses

     35        stated that when they answered the alarm the deceased mentioned
the appellant as one of the three persons who had cut him with a
panga.

16

 

 

 

 

 

, .

 

 

  5       I observe that 3 of the 4 people who testified in regard to the dying
declaration mentioned Kazarwa as one of the people mentioned by
the deceased as an assailant. Only PW 3 mentioned one assailant -
Kamugisha To bias and said nothing about Kazarwa. I however
observe that PW 3 arrived at the scene of crime at a different and

10        later time than PW 4 and PW 5 who were consistent in their
testimonies that the appellant
's name was mentioned by the
deceased.

While dealing with the evidence of the dying declaration, the Court of
Appeal stated as follows:

15        "The learned trial judge analyzed the evidence of the dying declaration
and found it consistent and reliable. He also found that the dying
declaration was corroborated by the witness who reported that he saw
the three accused persons fleeing from the scene. That he knew the
accused persons and there was moonlight which enabled him to

20        identify them. We find it appropriate at this juncture to first state the
law on dying declarations
. »

The learned Justices then went on to state the guidelines highlighted
in
Tindigwihura Mbahe vs. Uganda (supra) and then held that:

"In. the instant case there was evidence that the appellant was well

25        known to the deceased. They lived in the same village. They had been
in the same bar that evening
. There is also evidence that there was
moonlight that evening
. It was because of the moonlight that PW4 was
able to identify the same accused persons. PW4 testified that he saw
them flee the scene of crime
. He testified that he saw them when he

30 was about 10 meters away.

We find that there was corroboration of the dying declaration in the
test
imony of PW4 on the identification of the appellant and the two co-
accused at the scene of crime ... we do not accept the submission of
counsel for the appellant that the dying declaration was not

15

 

 

25.

 

26.

        5     accuracy, the fact of consistency may also go to the weight given to
the dying declaration.

It can be concluded that where the prosecution seeks to rely on a
dying declaration as evidence of who caused the death of a deceased
person, a court is inclined to look for other circumstances which go

      10 to show that the deceased could not have been mistaken in
mentioning an accused as the person who led to his/her death. I
opine that where the record shows that in order to convict an
accused, a court considered other evidence in addition to a dying
declaration, such is proof that the court received the dying

15  declaration with caution.

A look at the record reveals that four witnesses, (PW 3 - Bashome
John, PW 4 - Ntwale George, PWS - Nakanjako and PW7 - Atwijukire
also known as Jone Jones) testified in regard to the dying declaration.

The first witnesses to arrive at the scene of crime were Beyendeza

     20  and PW4. However, Beyendeza did not testify. PW 4 testified that the
deceased stated that it was Kazarwa, Kenneth and Kamugisha Tobias
who cut him. On cross-examination, PW4 also maintained that while
taking the deceased to hospital (with PW 7), the deceased was telling
them that he had been cut by Kenneth and Kazarwa.

     25        PW 5 testified that, her husband (PW 4) and Beyendeza were the first
to arrive at the scene of crime followed by Mrs. Kyakabale and herself.
That on arrival, they found the deceased had already been lifted and
was being brought to his bed with blood flowing from his wounds.
That the deceased then told them that Kenneth, To bias and Kazarwa

30 had cut him with a panga.

PW 3 testified that the deceased had told him that Kamugisha Tobias
had cut him.

PW 7 who took the deceased to hospital (with PW 4) testified that the
deceased told him that Kazarwa , Tobias and Kenneth are the ones

35 who had cut him.

14

 

 

23.

 

24.

       5                  absence of the accused and not subjected to cross

                       examination         unless         there         is         satisfactory

corroboration.

I opine that at the core of case law guidelines regarding the weight to
be attached to a dying declaration is the need for a court to accept

10 such evidence with caution. This principle is rooted in the fact that
the person who uttered the declaration is deceased and cannot
therefore be cross examined.

On the need for corroboration of a dying declaration, the Court of
Appeal for East Africa stated in R
vs. Eligu s/o Odel, Epongu s/o

     15        Ewunyu (1943) EACA 90 that whilst corroboration of a statement as
to the cause of death made before his death by the deceased is
desirable, it is not always necessary in order to support a conviction.
In the words of the court,
"to say so would be to place such evidence
on the same plane as accomplice evidence and that would be

20  incorrect."

I must however emphasize that although it is not a rule of law that
in order to support a conviction based on a dying declaration, the
declaration must be corroborated by other evidence, there is no doubt
that the presence of corroborative evidence adds weight to the

25  credibility of the declaration.

Nevertheless, in requiring corroboration, evidence of a material
particular implicating the accused with the offence is needed. It is
not enough that the corroboration shows the witness to have told the
truth in matters unconnected with the
guilt of the accused but the

     30        corroboration should be sufficient to afford some sort of independent
  evidence. (See:
Mande alias Mayambwa Mande vs. R [1965] EA
 193).

Furthermore, although the fact that the deceased told different
persons that the appellant was the assailant is no guarantee of

13

 

 

21.

 

22.

       5                  nature of the proceeding in which the cause of his or her

death comes into question; (My emphasis)

Acceptance of a dying declaration is an exception to the hearsay rule
which prohibits the use in court of a statement by someone other
than the person who repeats it while testifying during trial.

      10 Courts have developed guidelines for the acceptance of dying
declarations as evidence to prove the truth of a matter asserted. And
it can be said that the law in this
. area is now well settled as contained
in decisions of this Court. (See e.g.
Tindigwihura Mbahe vs. Uganda
Criminal Appeal NO. 9 of 1987; Mibulo Edward vs Uganda

      15 Criminal Appeal 17 of 1995.) The Court's pronouncement in
Tindigwihura Mbahe vs. Uganda was cited with approval in Mibulo
Edward vs. Uganda
thus:

Briefly the law is that evidence of dying declaration
must be received with caution because the test of cross

     20                 examination may be wholly wanting; and particulars of
violence may have occurred under circumstances of
confusion and surprise, the deceased may have stated
his inference from facts concerning which he may have
omitted important particulars for not having his

     25                  attention called to them. Particular caution must be
exercised when an attack takes place in the darkness
when identification of the assailant is usually more
difficult than in daylight. The fact that the deceased
told different persons that the appellant was the

     30                 assailant is no guarantee of accuracy. It is not a rule
of law that in order to support conviction, there must
be corroboration of a dying declaration as there may
be circumstances which go to show that the deceased
could not have been mistaken. But it is generally

     35          speaking very unsafe to base conviction solely on the
dying declaration of a deceased person made in the

12

 

 

 

 

 

 

 

 

 

 

 

 

        5    its duty laid out above, appropriately handled the evidence which led
to the conviction of the appellant. The relevant evidence can be
summarized under major three categories - the dying declaration,
identification of the appellant at the scene of crime and the
appellant's alibi. But such categorization is only for purposes of legal

      10   analysis because a conviction must necessarily be based on
evaluation of all evidence and analysis of the case in its entirety. It is
perhaps for this reason that when the Court of Appeal re-evaluated
the evidence concerning the identification, it did so in relation to its
value as corroboration of the dying declaration. Again, the evidence

      15   of the appellant's alibi in this case is discussed/evaluated alongside
the evidence which was adduced by the prosecution to prove that the
appellant was squarely placed at the scene of the crime.

The Law on dying declarations

Section 30 of the Evidence Act provides for situations in which
20 statements by a person who is dead can admitted as evidence in a
criminal trial. The section provides as follows:

(a) Statements, written or verbal, of relevant facts made by a
person who is dead
, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance

      25                cannot be procured without an amount of delay or expense
which in the circumstances of the case appears to the court
unreasonable, are themselves relevant facts in the following
cases
-

when the statement is made by a person as to the cause of

     30                  his or her death, or as to any of the circumstances of the
transaction which resulted in his or her death, in cases in
which the cause of that person's death comes into question
and the statements are relevant whether the person who
made them was or was not, at the time when they were

     35                       made, under expectation of death, and whatever may be the

11

 

 

 

 

 

        5               concurrent findings by the two lower courts. ... It is
rare for a second appe
llate court to interfere with
concurrent findings of two courts below on the same
case
.

Analysis of Court
10 Ground 1

The essence of the appellant's submission in ground 1 was that since
one of the co-accused (Kamugisha To bias) had pleaded guilty to the
charge, it was wrong in law for the Court of Appeal to re-evaluate
the
evidence and come to the conclusion that the appellant participated

15 in killing the deceased.

On the other hand, the respondent submitted that the leamed
Justices of Appeal could not be faulted for re-evaluating the evidence
despite the fact that there was a plea of guilty made by one of the c
o-

     20        accused persons. The respondent argued that Rule 30 (1) (a) of the
Court of Appeal Rules gives power to the court to re-appraise
evidence as a first appellate court.

I find this argument of the appellant misconceived. In the persuasive

     25        authority of Litako & Ors vs. S (584/2013) [2014] ZASCA 54, the
Supreme Court of Appea
l of South Africa held that the accepted
principle of law is that a man's confession is evidence only against
himself and not against his accomplices
. If a prisoner pleads guilty,
it does not affect his co-prisoner.

30 I therefore opine that it a plea of guilty by an accused does not
exonerate other individuals who have been accused of having
participated in the same crime. Every accused has to go through his
own trial.

Having resolved what appeared as ground 1 in the Memorandum of
35 Appeal, I will now resolve whether the Court of Appeal, in line with

 

 

19.

 

20.

5

3.  

This Court can interfere with the conclusions of the Court of
Appeal if it appears that the Court of Appeal failed in its duty

                       as a           first appellate court.

     10                 4. This Court will only consider the facts of the appeal to the

extent of considering the relevant point of law or mixed law
and fact raised in the appeal
.

In addition to above laid out duty of this Court as second appellate
court, I must also point out what this Court has said in several cases

     15 when dealing with a matter in which two lower courts (the High Court
and the Court of Appeal) have reached concurrent findings.
In
Kakooza Godfrey vs. Uganda, Criminal Appeal 03 of 2008,
the
issue that had to be resolved by the Supreme Court was whether the
Court of Appeal as well as the trial court correctly evaluated the

     20        evidence, correctly applied the doctrine of recent possession, and
correctly convicted the appellant. This Court had this to say:

As a second appellate court, we are aware that the two
lower courts reached concurrent findings of fact as to
whether the appellant was in fact found in possession

     25            of the stolen motor vehicle. We can only interfere in
those concurrent findings if we are satisfied that the
two courts were grossly wrong and or applied wrong
principles of the law. We are mindful of the fact that
we did not see the witnesses at the trial.

     30        And in Akbar Hussein Godi vs Uganda, Criminal Appeal No 03 of
2013,
while handling a second appeal arising from the judgment of
the Court of Appeal which upheld the conviction of the appellant in
a murder trial
, this Court stated inter alia that:

It is now well established that when both sides in a

     35                second appeal present arguments at this level this
Court has to bear in mind areas where there are

9

 

 

17.

 

18.

        5    acting in its original jurisdiction, the court may decide
matters of law or mixed law and fact ... "

In Bogere Moses and Anor vs. Uganda, Criminal Appeal
no.1 of 1997,
this Court restated the principle in Kifamunte
in regard to its duty as a second appellate court and held that

     10 it is only in the clearest of cases that a second appellate court
re-valuates the evidence presented before the trial court. The
court went on say that where it is apparent to the second
appellate court that the first appellate court did not evaluate
the evidence as a whole, and in particular in respect of

     15        material issues, with the result that it cannot be ruled out
that a different result would have been arrived at, then the
second appellate court would re-evaluate the evidence like a
first appellate court. The court pointed out that:
"failure by a
first appellate court to evaluate the material evidence as

20 a whole constitutes an error in law."

The import of the Bogere decision is the principle that where
the Court of Appeal has failed to re-evaluate material
evidence, the second appellate court should correct the error
(in law) and step in to scrutinize the evidence as if it were a

25  first appellate court.

It is the principles set out in case law and in the Rules set out above
that have guided me in resolving this appeal to wit:

1. 

The Court of Appeal (as a first appellate court) had the duty to
subject the whole evidence presented before the High Court to

     30               fresh scrutiny and thereafter to come up with its own
conclusions.

2.  

The duty of this Court (as second appellate court) is to
determine whether the Court of Appeal duly re-evaluated the

     35                      evidence.

8

 

 

 

 

 

 

 

 

 

 

 

 

       5     It is in line with the above principles that I have evaluated the
dec
ision of the Court of Appeal to uphold the decision of the trial
court
.

On the other hand, the duty of a second appellate court was stated
in
Kifamunte Henry vs. Uganda (Supra) thus:

     10                  "It does not seem to us that except in the clearest of
cases, we are required to re-evaluate evidence like a
first appellate court. On second appeal, it is
sufficient to decide whether the first appellate court
in approaching its task, applied or failed to apply

     15                        such principles.

The Court went further to state that:

... This Court will no doubt consider the facts of the
appeal to the extent of considering the relevant point
of law or mixed law and fact raised in any appeal, if

     20                 we re-evaluate the facts of each case wholesale we
shall assume the duty of the first appellate court and
create unnecessary uncertainty, we can interfere
with the conclusions of the Court of Appeal if it
appears that in consideration of the appeal as a first

     25                appellate court, the Court of Appeal misapplied or
failed to apply the principles set out in such
decisions such as Pandya (Supra), Ruwala (Supra)
Kairu (Supra)
... as a second court of appeal we do not
have to reevaluate the evidence.

     30        I must also refer to Rule 30 (1) of the Supreme Court Rules
w
hich provides that: "Where the Court of Appeal has
reversed, affirmed or varied a decision of the High Court

7

 

 

 

 

 

 

 

 

 

5 Respondent's submission

The respondent submitted that the contention of whether the
sentence of life imprisonment meant imprisonment for natural life or
imprisonment for 20 years did not arise in the Court of Appeal. The
respondent referred to the Memorandum of Appeal filed in the Court

     10 of Appeal and submitted that no particular ground addressed the
issue of variance of sentence. Further that the appellant's prayer was
that the court sets aside the conviction and sentence and did not call
upon the court to pronounce itself on the legality of the sentence of
life imprisonment.

15 Duty of Appellate Courts

The duty of the Court of Appeal as a first appellate court is provided
for in Rule 30 (1) (a) of the Court of Appeal Rules thus:
"On any
appeal from a decision of the High Court acting in the exercise
of its original jurisdiction, the court may reappraise the evidence

     20       and draw inferences of fact." This duty was expounded in
Kifamunte Henry vs. Uganda (Criminal Appeal No.10 of 1997)
[1998]
UGSC 20 by this Court as follows:

... A duty to hear the case and to reconsider the
materials before the trial judge. The appellate court

     25            must then make up its own mind not disregarding the
judgment appealed from but carefully weighing and
considering it.

In Pandya vs. R [1957] EA 335, the East African Court of Appeal
pointed out the advantage enjoyed by the trial court over the first

     30       appellate court when it stated that: "This being the first appeal,
it is our duty to re-evaluate the evidence ourselves and
determine whether the conclusions reached by the trial court
should be allowed to stand or not, bearing in mind that we have
neither seen nor heard the witnesses
. "

6

 

 

 

 

 

 

 

 

 

 

      Ground 2

Appellant's arguments

The appellant stated in his memorandum of appeal that the learned
Justices of the Court of Appeal failed to re-evaluate the mitigation of
sentence and thereby dismissed the appeal against the sentence of

     10   life imprisonment. However, in his written submissions, counsel did
not make reference to the ground but proffered arguments relating
to the legality of the sentence of life imprisonment.

Counsel submitted that the law gives the appellate court power to
vary sentences. In support, the appellant cited
Section 11 of the

     15 Judicature Act - which gives the Court of Appeal powers of the court
of original jurisdict
ion when determining an appeal. He also cited
Section 132 of the Trial on Indictments Act and Section 34 of the
Criminal Procedure Act which gives an accused person the right to
appeal against conviction and sentence on a matter of law, fact or

     20      mixed law and fact and also allows the Court of Appeal to vary or
confirm the sentence where the appeal is against sentence only.

Counsel also relied on the authorities of Tigo Stephen vs. Uganda
SCCA No. 8 of 2009 and Livingstone Kakooza vs. Uganda SCCA
No.17 of 1993
and argued that the sentence of life imprisonment

     25       has never been legally defined. That whereas in the former case life
imprisonment was defined to be the natural life of the prisoner, in
the latter it was said to mean 20 years in line with Section 47 (7) of
the Prisons Act.

In light of the above authorities, counsel submitted that the legality

     30        of a sentence of life imprisonment was never addressed by the Court
of Appeal and that the prosecution did not argue that the sentence
of life imprisonment be maintained
. That therefore, the learned
Justices of Appeal upheld an illegal sentence.

5

 

 

 

 

5        At the hearing of this appeal, both the appellant and respondent
counsel adopted their written submissions. No clarifications were
made on the written submissions
.

Ground 1

Appellant's submission

     10 Although the essence of ground 1 in the memorandum of appeal was
that the learned justices erred in re-evaluating evidence and
confirming the appellant
's conviction of murder yet Kamugisha
Tobias had pleaded guilty to the murder, counsel did not support this
ground with any arguments.

     15        In his written submissions, the appellant disputed his participation
in the murder
. It was argued that the appellant had pleaded an alibi
in his defence which was not d
isproved by the prosecution and not
properly assessed
. by the trial court. That as such, the learned
justices of Appeal failed to exercise great care when confirming the

20  appellant's conviction.

Respondent's submission

On the other hand, the respondent made submission in relation to
the grounds as they appeared in the memorandum of appeal. It was
submitted that the learned Justices of Appeal could not be faulted

     25      for re-evaluating the evidence despite the fact that there was a plea
of guilt made by one of the co
-accused persons. The respondent urged
that that Rule 30 (1) (a) of the Court of Appeal Rules gives power to
the court to re-appraise evidence as a
first appellate court.

As to whether the Learned Justices of Appeal considered the
30 appellant's alibi, the respondent referred to page 11 of the judgment
of their Lordships and submitted that the appellant's defence of alibi
was considered.

4

 

 

-

, ,

 

 

   5        the scene of crime. That the accused persons were known to the
witness as village mates and were sufficiently identified by moonlight.

In regard to ground 2 on the defence of alibi, the Court of Appeal
agreed with the trial judge that the appellant was placed at the scene
of crime. In analyzing the evidence, the Court of Appeal found that

10         the appellant in his own testimony stated that he was in Lyantonde
on the night of 14/2/2009 - the area where the offence was
committed. That the appellant left Lyantonde the following day
without giving a justifiable reason.

For grounds 3 and 4, the Court of Appeal found that the appellant's
15 conviction was based on proper analysis of the available evidence by
the trial judge.

In conclusion, the Court of Appeal dismissed the appeal and
confirmed the conviction and sentence of the appellant by the High
Court.

20        The appellant being dissatisfied with the decision of the Court of
Appeal lodged a second appeal in this Court on the following grounds:

1. 

The learned Justices of the Court of Appeal having found
that Kamugisha Tobias pleaded guilty as a person that
murdered late Kyakabale Willy on
14th February 2009 at

25                        Kyabazala erred in law by re-evaluating evidence thereby
wrongly confirmed appellant's conviction of murder.

2.  

The learned Justices of the Court of Appeal erred in law by
failing to re-evaluate mitigation of sentence basing on

                 30               circumstances of the case thereby wrongly dismissed
appellant's appeal against life imprisonment.

The appellant prayed that this Court quashes the conviction and the
sentence be set aside and in the alternative, the period of

35 imprisonment be reduced.

3

 

 

15.

 

        5    appellant together with 2 other co-accused attacked and killed
Kyakabale Willy who was returning from a bar
. The deceased raised
an alarm which was answered by PW 4 Ntwale, PW5 Nkanjako and
Beyendeza who found him lying in a pool of blood
. The deceased
stated that the people who had attacked assaulted him were Kazarwa

10 (the appellant), Kenneth Nyakahangura and Kamugisha Tobias.

The three accused were arrested and charged with murder.
Kamugisha Tobias was found guilty on his own plea of guilty and
sentenced to life imprisonment. Although the appellant entered a
plea of not guilty
, the trial court after evaluation of the evidence found

     15 him guilty of murder and sentenced him to life imprisonment. The
conviction was based on what the Trial Court accepted as a Dying
Declaration.

The appellant was dissatisfied with the High Court decision and
appealed to the Court of Appeal on the following grounds:

     20                 1. The trial judge erred in law and fact when he relied on the dying

declaration adduced by the prosecution to convict the
appellant.

16.

The trial judge erred in law and fact when he ignored the
appellant's alibi and convicted him of murder.

     25                3. The trial judge erred in law and fact when he did not properly

evaluate the evidence before court thereby arriving at the wrong
decision
.

4. 

The trial judge erred in law when he disregarded rules of
evidence and procedure thereby rendering the whole
trial

      30                       irregular and a nullity.

In regard to ground 1, the Court of Appeal found that the trial judge
analyzed the evidence of the dying declaration and found it consistent
and reliable. That the dying declaration was corroborated by the

35 witness who reported that he saw the accused persons fleeing from

2

 

 

 

 

 

 

 

 

 

(An Appeal from the decision of the Court of Appeal at Kampala before Nshimye,
Mwangusya, Buteera
, JJA dated 20th January, 2014.)

            20       REPRESENTATION

The appellant was represented by Mr. Rukundo Henry Seith on State
Brief. The respondent was represented by Ms. Lucy Kabahu
ma,
Senior State Attorney.

DISSENTING JUDGMENT OF PROF. LILLIAN TIBATEMWA-
25     EKIRIKUBINZA, JSC.

The appellant was convicted of murder contrary to Sections 188 and
189 of the Penal Code Act and sentenced to life imprisonment.

The brief facts of this case as accepted by the High Court and the
Court of Appeal were that, on the night of
14th February, 2009, the

 

 

 

 

 

UGANDA

 

 

.................

 

 

RESPONDENT

 

 

 

 

 

,

(

 

 

5

10

15

 

 

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO. 17 OF 2015

[CORAM: KATUREEBE CJ, KISAAKYE, ARACH-AMOKO, MWONDHA,
TIBATEMWA-EKIRIKUB
INZA, JJSC]

BETWEEN

   KAZARW A HENRY ................................... APPELLANT

VS

 

 

 

The prayer in the instant case was to quash the conviction and set aside the
sentence
. The first ground of appeal succeeds, the learned Justices failed in
their duty as a 1
st appellate Court to reappraise the evidence and subject it
to fre
sh scrutiny which resulted into ~ wrongly confirming the conviction
against the appellant. The conviction is accordingly quashed
.

Having quashed the conviction the sentence falls by the wayside and it
cannot stand.

In the circumstances of this case we allow the appeal, quash the conviction
and set aside the sentence of life imprisonment.

The appellant should be released and set free unless if he is being held on
other lawful charges aga
inst him.

           Dated at Kampala this .. .10th ............. day of .August 2017

 

 

Hon Justice Bart Katureebe,

CHIEF JUSTICE

 

Hon. Lady Justice Dr. Esther Kisaakye

JUSTICE OF THE SUPREME COURT

JUSTICE OF THE SUPREME COURT

 

 

Hon. Justice Faith Mwondha,
JUSTICE OF THE SUPREME COURT

Hon. Lady Justice Prof. Tibatemwa Ekirikubinza
JUSTICE OF THE SUPREME COURT

24

 

 

 

 

'

(2) The trial Judge erred in law and fact when he ignored the appellants
alibi and convicted him of murder.

(3) The trial Judge erred in law and fact when he did not properly evaluate
the evidence before Court thereby arriving at the wrong decision.

(4) The trial Judge erred in law when he disregarded Rules of Evidence and
procedure thereby rendering the whole trial irregular and a nullity. The
appellant prayed for orders that

(a) The appeal be allowed and the judgment of the High Court be quashed
and set aside.

(b) The conviction and sentence of the appellant be set aside.

It is apparent that, failure by Court of Appeal to re-evaluate mitigation of
sentence basing on the circumstances of the case, was not a ground bef
ore
the Court of Appeal, We cannot therefore fault the Learned Justices for a
matter that was not before them. The appellant's prayer was to have the
convicti
on and sentence set aside. We accept Counsel for the respondent's
submissions on this ground. This ground Would
fail.

Be as it may we are compelled to say something about the way the trial
Judge handled the sentencing proceedings. There was no mention of
mitigation of sentence. There was a misdirection in law by the learned
Justices of the Court of Appeal to have failed to direct themselves on the
issue of sentencing when it had been part of the prayers. The judgment of
the Court of Appeal simply stated:
I find that conviction was based on ~
proper analysis of the available evidence by the trial Judge. I found no
merit in th
is appeal and accordingly dismiss it. The conviction of the
trial Judge is upheld and sentence imposed is confirmed
.

The Learned Justices of Court of Appeal caused a miscarriage of justice,
therefore when they confirmed the sentence without properly analysing the
judgment and sentencing procedure of the trial judge to appreciate how the
sentence came about. They also didn't give reasons for their upholding the
sentence of life imprisonment for the rest of natural life of the appellant.

23

 

 

· ~' ,

Kyakabale. There was no evidence to prove that it was the wrangles which
culminated in Ky
akabale's attack which resulted into his death.

The law on inconsistencies and contradictions have been stated over and
over again by this Court. In
the Bumbakali Lutwama and 4 others SC Cr.
Appeal No
. 38 of 1989 (unreported) citing with approval Alfred Tejar v.
Uganda Cr. Appeal No. 16
7 of 1969 EACA (unreported) it was held among
others that
"inconsistencies and contradictions in the prosecution case
ma
y be ignored if they are minor or do not point to deliberate
untruthfulness on the part of the prosecution witnesses
..... " The
learned Justices of the Court of Appeal ought to have reappraised this
evidence. If they had done so, they would not have confirmed the trial
Court's conviction.

Accordingly we find that the Learned Justices of the Court of Appeal erred in
Law and fact when they failed to properly reappraise the evidence before the
Leaned trial Judge which resulted into wrongly confirming the appellant's
conviction.

The second ground of appeal was to the effect that the learned Justices
failed to re-evaluate mitigation of sentence basing on the circumstances of

the case and wrongly dismissed the appellant's appeal against the sentence

of life imprisonment. We perused the High Court record regarding
sentencing proceedings recorded on the 28-4-2011. At page 45 the trial ~
Judge only mentioned Nyakahangura (A
i) and gave reasons for imposing the
sentence of life imprisonment. He wrote:

"I have noted the reasons and pleas of leniency in mitigation. I
have borne in mind the grav
ity of the offence committed by the
convicts
. They are each sentenced to life imprisonment.

Right of appeal against conviction and sentence explained."

In the Court of Appeal the appellant had 4 grounds of appeal, namely

(1) The trial Judge erred in law and fact when he relied on the dying
declaration adduced b
y the prosecution to convict the appellant.

22

 

 

·  

.
, .

any innocent people are convicted today I should think that in
nine cases out of ten - if they are as many as ten - it is on a
question of identity. That danger is of course greater when the
only evidence against the accused person is identification by one
witness and although no one would suggest that a conviction based
on such identification should never be upheld, it is the duty of
this Court to satisfy itself that in all circumstances it is safe to act
on such identification
."

The circumstances the trial Court relied on were that the appellant walked
away or run away when he saw the Police come to his house
. But this was
the next day after the murder and many hours after. It was not the night of
the murder.

Besides the appellant in his testimony stated that he went to Rukungiri in
June 2009 to burry his daughter. There was no evidence by the prosecuti
on
to discredit or shake it
. These were four months after the murder. One has
to assume that those four months the appellant was in Lyantonde at his
place of work
.

The material and relevant issue was the scene of crime whether there was
evidence placing him at the scene of crime, i.e. the particular place where
the attack was done.

In regard to the inconsistencies in the prosecution evidence which could not
have been overlooked by the trial Judge and also by the learned Justices
of
the Court of Appeal, the evidence of PW3, PW4and PW5 as a whole was
~
i
nconsistent in the material particulars of the case as already discussed in
this judgment.

These inconsistencies were major and deliberate lies to Court. The
prosecution through PWI0 and PWll adduced ev
idence of the wrangles
between the workers of Ronald Lutta and one George. Also the appellant and
DW3 testified about them
. There were police cases that ended in Court.
The appellant had b
een arrested only 2 (two) days before the attack on

21

 

 

Appeal stated. The deceased was attacked at about 10:00 p.m. and was
taken to hospital around 11 :00 p.m. or slightly after, and the police had
been informed. There was no way the appellant could have been
put
squarely at the scene of crime in light of the evidence available on rec
ord.
The alibi the appellant raised could not arise since he left his home in Jun
e
2009 when the offence was committed in February 2009.

The trial judge wrote as follows:-

In addition to this evidence the conduct of the accused persons
especially Kazarwa Henry po
int to behavior inconsistent with an
innocent person
. He saw a police truck coming to his home the
day after
the murder and he ran away or walked away fast, if you
are to be
lieve him. His version of why he moved in the opposite
d
irection as police came to his home leaving his wife was cowardly
act of a gui
lty person who well knew that his murder of an
innocent person had caught up with him. His twist on why he ran
away is
intended to make a fool of Court and make it believe that
he accused was wa
lking away simply because a one Lubega had
harassed him
..... I am satisfied that he fled to Rukungiri to try and
ev
ade arrest after killing the deceased. His conduct after the
murder and the fac
t that the dying declaration names him as
stated by th
ree witnesses places him squarely at the scene of
cr
ime.

As we have already discussed in this judgment, the evidence of the weak
dying declaration and un
reliable evidence of PW4 which the trial judge as
confirmed by the Court of Appeal had believed. There could not be proper
identification of the appellant. The evidence of conduct or circumstances
was so wanting that the appellant could not be put squarely at the scene of
crime as the trial judge found and eventual confirmation by the Court of
Appeal
.

It is trite law which has been stated by this Court over and over again
that the prosecution always has the burden to prove the case beyond

19