Baitwabusa Francis v Uganda [2017] UGSC 26 (14 August 2017)

'a blast from the Television set. He noticed that the house had caught fire

35 and all attempts to open the door were futile because it had been locked
from outside. His mother who was sleeping in a separate house raised an
alarm which attracted neighbours who removed iron bars from a window
through which PW2 and his wife escaped. The deceased were not so lucky.
They were all burnt beyond recognition as the post mortem reports on all

40 the five dead bodies indicated. They all died of multiple organ damage due
to extensive burns.

The District Police Commander Masindi District, Alex Twebaze( PW5) on
receiving the report about this incident visited the scene that very night. On
reaching the scene he confirmed that five people had perished in the fire and

45 the name of the appellant was being mentioned in connection with the
burning of the house in which the deceased persons perished.

He, together with the Local Council Chairman, Masindi and PW2 headed for
the home of the appellant at Katama village where the wife of the appellant
opened for them. The appellant was called out of his house and informed of

50 the allegation that he had burnt PW2's house in which the deceased were
burnt. He was then arrested. He did not resist the arrest. His only
response to the arrest was that it was okay. He was taken to Masindi Police
Station from where he was later taken to the Chief Magistrate Court where
he was charged with murder. He was later indicted in the High Court sitting

55 at Masindi where the prosecution adduced evidence to link him with the
offences.

The appellant denied the alleged offences. He testified that on 8^th July 2008
he had gone to bed at 10:00 p.m. and was sleeping when he was awakened
by his wife who told him that someone wanted him. The District Police

60 Commander called him out and placed him under arrest. He was taken to
Masindi Police Station where he denied having burnt the house in which the
deceased persons died.

2

'Norah Kyakuhaire (DW2) in support of her husband's alibi testified that on
8^th July, 2008 she returned home at 6:00 p.m. from school where she was a
65 teacher. She found her husband and children at home and they remained
together till his arrest in the night.

The arrest of the appellant was prompted by information circulating at the
scene that he was not on good terms with PW2 whom he suspected of
having a love affair with his wife. The suspicion arose from the fact that

70 PW2 had left a phone with the appellant's wife for whom he was doing some
casual work.

According to PW2 and DW2, the phone was a pledge for a sum of
Shs 20,000/= which PW2 had borrowed from the appellant's wife. PW2 had
also taken a sum of Shs.850,000/= from DW2 on the pretext that he had a

75 cure for her medical condition. These two incidents had soured the
relationship between PW2 and the appellant who had allegedly warned PW2
that something was going to happen to him following which his house was
burnt.

Both the High Court and the Court of Appeal found that the case depended

80 on circumstantial evidence and we agree. Both Courts rightly stated the
principles which Courts apply in deciding cases based on circumstantial
evidence as was re-stated in the case of Akbar Hussein Godi Vs Uganda
(Supreme Court) Criminal Appeal No 03 of 2013) as follows:-

"There are many decided cases which set out the relevant

85 principles which Courts apply in deciding cases based on
circumstantial evidence. In the case of Simon Musoke Vs R.
(1958) E.A. 715 at page 718H, the Court of Appeal for East Africa
held that in a case depending exclusively upon circumstantial
evidence, the Court must, before deciding upon conviction, find

90 that the inculpatory facts are incompatible with the innocence of
the accused, and incapable of explanation upon any other
reasonable hypothesis than that of guilt "see also Teper Vs R.

3

(1952) 2 ALL ER 447. Also see Andrea Obonyo & Others Vs R.
(1962) E.A. 542 where the principles governing the application by

95 Courts of circumstantial evidence were considered".

The circumstantial evidence relied upon by the two Courts to convict .the
appellant consisted of the threat by appellant to do harm to PW2 and
evidence that he was seen fleeing from the scene on his motorcycle. The
appellant denied both incidents throughout his trial and in his appeal he

100 raises two grounds as follows:-

1. That the learned Justices of Appeal erred in law and fact when they failed
to properly re-evaluate the circumstantial evidence on record to come up
with their own conclusion.

2. That the learned Justices of Appeal erred in law and fact in upholding an
105 illegal sentence of the Appellant spending the rest of his life in prison (Life
imprisonment) which was a manifestly excessive sentence.

He prayed that

1. The appeal be allowed.

2. The harsh and excessive sentence of the appellant spending the rest of

110 his life in Prison be set aside or substituted with a lessor (sic) prison
term.

The second ground is badly drafted. It raises the issue of illegality of
sentence related to imprisonment of the appellant for the rest of his life and
mixes it with the issue of a manifestly excessive sentence.

115

The prayer seems to abandon the issue of illegality but it is raised again in
the appellant's final submissions. Our observation is that Counsel should
take more care in the drafting of the memoranda of Appeal so that there is
no mix up of issues on Appeal. Both grounds will be resolved as matters of

120 Law.

4

'At the hearing of the appeal the appellant was represented by Mr.
Emmanuel Muwonge, Counsel on State Brief while the Respondent was
represented by Ms Caroline Nabasa, a Senior Principal State Attorney,

125 Directorate of Public Prosecutions. Both Counsel filed written submissions
which they adopted at the hearing of the appeal.

On the first ground of Appeal, Counsel for the appellant submitted that both
the trial Court and the Court of Appeal correctly observed that the case

This Court being a second appellate Court is not required to re-evaluate the
whole evidence unless it is found that the first appellate Court did not
155 sufficiently re-evaluate the evidence to draw its own conclusion. This is the
position which was stated in the case of Kifamunte Henry Vs Uganda
SCCA 10 of 1997 as follows:-

"It is the Court of Appeal as the first appellate Court which has

160 duty to re-evaluate the evidence of the trial Court. 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 we re- evaluate the facts of each case wholesale
we will assume the duty of the first appellate Court and create

165 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 appellant Court, the Court of Appeal misapplied or failed
to apply the principles set out in such decisions as Pandya (Supra)
Ruwala (Supra) Kairu (Supra)"

170

In view of the defence of alibi raised by the appellant, it was incumbent on
the trial Court and the Court of Appeal to determine whether or not the
appellant was put at the scene of crime. The guidelines as to what amounts
to putting the accused at the scene of crime were set by the Supreme Court

75 of Uganda in the case of Bogere and Anor (Supreme Court Criminal
Appeal No 1 of 1997) where it was held as follows:

"What then amounts to putting an accused at the scene of crime?
We think that the expression must mean proof to the required

180 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

6

185 alone, but 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 that he was elsewhere at the material
time it is incumbent on the Court to evaluate both versions

190 judicially and give reasons why one and not the other version is
accepted. It is misdirection to accept one version and then hold
that because of that acceptance per se the other version is

unsustainable "

195 As already indicated the case against the appellant is dependent on
circumstantial evidence and the question is whether the Courts below
subjected it to close scrutiny as is required. The requirement to subject
circumstantial evidence to close scrutiny was emphasised in the case of
Katende Semakula vs. Uganda (Supreme Court Criminal Appeal No. 11/

200 1994) where it was stated as follows:-

"Another requirement concerning circumstantial evidence is that
it must be narrowly examined, because evidence of this kind may
be fabricated to cast suspicion on another. It is therefore
necessary before drawing the inference of the accused's guilt from

205 circumstantial evidence to be sure that there are no other co-
existing circumstances which would weaken or destroy the
inference ... "

The first piece of circumstantial evidence relied on by both Courts to

210 connect the appellant with the offence was a threat allegedly uttered by the
appellant to PW2 on phone. The value to be attached to evidence of a prior
threat was discussed in the case of Waihi and Anor Vs Uganda (1968) E.A.
278 at p. 280 where the East African Court of Appeal stated:-

215 "Evidence of a prior threat or of an announced intention to kill is
always admissible evidence against a person accused of murder,

7

but its probative value varies greatly and may be very small or
even amount to nothing. Regard must be had to the manner in
which a threat is uttered, whether it is spoken bitterly or of

220 impulsively in sudden anger or jokingly, and reason for the threat,
if given, and the length of time between the threat and the killing
are also material. Being admissible and being evidence tending to
connect the accused person with the offence charged, a prior
threat is, we think capable of corroborating a confession .... "

225 (underlining provided)

In this case, the appellant denies having made the threats and there was no
verification of any telephone contact between the appellant and PW2.
Secondly, from our reading of the case of Waihi Vs Uganda (Supra) evidence

230 of prior threat cannot stand on its own. It can only be used for corroboration
of other evidence which in this case is that the appellant was not only seen
at the scene but was also seen fleeing from the scene on his motor cycle.

According to the evidence of PW2 it was his mother, Rose Kabatoro (PW3)

235 who informed people at the scene that she knew the person who had set the
house on fire and had seen him jump on his motor cycle and ride away. But
the trial judge, rightly so in our view disregarded this evidence when he
observed as follows:-

240 "It is easily discernable that the PW3's Court version alleging that
she had identified the accused fleeing from the scene that night
was ill contrived. She was evidently influenced to state so, by the
ultimatum and threat she and PW2 claim the accused uttered for
her family; and given that indeed the tragic fire incident took

245 place within this time. In addition was her claim that she heard
some people allege the morning after the fire that the accused
had been seen with a jerrycan on a motor cycle fleeing from the
scene of the fire. This was, in any case hearsay evidence and

8

inadmissible. PW3's claim that fateful night is therefore worthless.

250 I must disregard it."

After disregarding the evidence of PW3, the only other piece of
circumstantial evidence relied on to connect the appellant was that he was
seen fleeing from the scene on his motor cycle. According to No 25383

255 D/CPL Okatayot Simon, an investigating officer who testified as a Court
witness two people namely Mukubwa Peter a motor cycle rider who did not
testify at the trial and Byakagaba Israel (PW9) a bicycle rider claimed to have
met a person riding a TVS motor cycle on which he was carrying a five litre
jerrycan.

260

Mukubwa did not identify the person while Byakagaba who testified as PW9
claimed to have identified the appellant whom he assisted to retrieve the five
litre jerry can which had fallen from the motorcycle.

But in his own testimony this is what he stated "the complainant

265 approached me and asked me to go and give evidence on how I had met
the accused. He asked me if I knew the person who had burnt his house
I told him I did not know the person, and then he asked me go and give
statement at police. I accepted but asked him for 5 million shillings.
He refused up to now".

70 Earlier he had stated that he never mentioned to anyone that he had met
Baitwabusa. He also denied having made any statement at the police. Later
he admitted recording a statement at the police and although there was a
suggestion that the appellant had approached him to influence him not to
testify against him he denied ever meeting the complainant or the appellant

275 after he had made his statement at the police. He denied having discussed
the case with his uncle George Magambo (PW8) and his mother Evasi
Kaheru (PW7). He denied having told his mother that he had seen the
accused on the night of the fire.

9

In our View, the two pieces of circumstantial evidence did not point

280 irresistibly to the guilt of the appellant. The evidence of the District police
commander who arrested the appellant from his home did not help in
linking the appellant with the offence. According to the witness he heard the
name of appellant being mentioned at the scene and he went to his home
where he found him sleeping. No search was conducted at the home of the

285 appellant especially if anybody mentioned that he had been seen fleeing on
his motorcycle whose registration number was not given but was described
as blue in colour. There was mention of a yellow small jerycan which was
never recovered. Moreover PW9 who testified that he had met the appellant,
on the night the crime was allegedly committed told court that he never told

290 any body so including the complainant whom he told that he did not know
the person who had set fire to his property. It was only after he was
promised Shs.5 million that he agreed to go and make a statement at the
police. The complainant reneged on his promise to pay him Shs.5 million
which may explain why he was reluctant to testify in Court till his relatives

295 were imprisoned. There was also evidence that he was approached by the
appellant to withdraw his statement at the police which may explain the
disappearance of his statement from the police file.

We do not see how the trial Court and Court of Appeal would find P.W.9

300 such a credible witness as to disprove the alibi raised by the appellant. On
the contrary his credibility would be in question whether he was approached
by the appellant to exonerate him of the crime or by the complainant to
fabricate a story that he had met the appellant fleeing from the scene. On
that basis we find that although both courts were alive to the principles

305 regarding circumstantial evidence, none of them subjected it to the scrutiny
required before basing a conviction on it. We are of the view that the
evidence on record left the appellant as a mere suspect. Suspicion, however
strong it may be does not lead to conviction. See R v. Israel Epuku S/0
Achietu [1934] IEACA 166.

10

310 In the result the appellant's appeal is allowed. His conviction on all counts
of murder is quashed and is to be released from custody unless he is being
held on other lawful charges.

Dat d at Kampala this 14^th day of August 2017

Tumwesigye

JUSTICE OF THE SUPREME COURT

Mwangusya

JUSTICE OF THE SUPREME COURT

Opio Aweri

JUSTICE OF THE SUPREME COURT

Mwondha

JUSTICE OF THE SUPREME COURT

Tibatemwa-Ekirukubinza

JUSTICE OF THE SUPREME COURT