IN THE SUPREME COURT OF UGANDA
CORAM: TSEKOOKO, KAROKORA, MULENGA,
KANYEIHAMBA AND KATUREEBE, JJ.SC.
CRIMINAL APPEAL NO. 24 OF 2002
1. NANYONJO HARRIET
2. SENYONJO KATO PETER::::::::::::::::::::::::: APPELLANTS
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(Appeal from the judgment of the Court of Appeal (Mpagi-Bahigeine, Engwau and
Twinomujuni JJ.A) at Kampala, in Criminal Appeal No. 51, dated 8th May 2002)
JUDGMENT OF THE COURT.
Nanyonjo Harriet, the 1st appellant named above, is the wife of Senyonjo Kato Peter the 2nd appellant. On 2nd May 2001, they were jointly convicted by the High Court (Mwondha J.) sitting at Mubende, for the murder of Nsereko Patrick, a two and half years old baby who was the biological son of the 2nd appellant with another woman. They appealed, but on 8th May 2002, the Court of Appeal dismissed their appeals; hence their appeals to this Court.
Prior to his death, the deceased lived with the appellants. Apparently he had the unfortunate habit of soiling his beddings during sleep and his step-mother, the 1st appellant, frequently chastised him for it. On 23rd November 1998, the deceased defecated where he had been prohibited. To chastise him, the 1st appellant beat him and forced him to eat his faeces. Later, the deceased died. The post-mortem examination revealed that he sustained haematoma on the left side and back side of the head. The cause of death was certified as severe brain damage. At the trial of the appellants, the prosecution contended that the deceased’s death resulted from the assault on him by the 1st appellant and that the 2nd appellant participated in the assault and/or was present and had common intention with the 1st appellant.
In this Court, the appellants were separately represented and filed separate memoranda of appeal. The 1st appellant’s only ground of appeal is -
“I. The Honorable Justice of Appeal erred in law when they failed to correctly re-evaluate the 1st Appellant’s evidence, especially her defence that the deceased died of acute epilepsy which was so recurrent, and the grudge, bias and malice of PW3 (Nsereko Mukasa Swaibu).
On the other hand, the 2nd appellant appeals on two grounds, namely -
“1. The learned Justices of Appeal misdirected themselves on what constitutes malice aforethought and thereby came to the wrong conclusion that the case had been proved beyond reasonable doubt against the Second Appellant.
2. The learned Justices of Appeal erred when they upheld the trial court’s finding that the doctrine of common intention applied to the facts of this case.”
Clearly, the first two grounds of appeal offend Rule 82 of the rules of this Court for being drafted in narrative and argumentative forms. However, in substance the appeal raises three criticisms against the judgment of the Court of Appeal, namely:
(a) failure to re-evaluate all the evidence on the cause of death, (b) misdirection on mens rea for the offence of murder, and (c) erring in application of the doctrine of common intention to the facts of this case. It is pertinent to point out at this juncture, that much as the first criticism is raised by the 1st appellant alone and the second criticism is raised by the 2nd appellant alone, our finding on each of the two criticisms is bound to affect both appellants. We shall consider the criticisms in the order they are listed.
(a) Cause of death
The 1st appellant’s only ground of appeal criticizes the Court of Appeal for failure to correctly re-evaluate the defence evidence on the cause of death and on the grudge of PW3 against the appellants. However, in his written submissions, counsel for the 1st appellant does not point to any error or omission by the Court of Appeal in that regard, but only asserts that the court ought to have reached a different conclusion. Learned counsel contends that the case is based on circumstantial evidence and argues that the prosecution had to show that the inculpatory facts were incompatible with the innocence of the appellants and incapable of explanation other than their guilt. In his view, the evidence that the deceased suffered attacks of epilepsy at least twice a month and that there was a grudge between PW3 and the 2nd appellant shows that there are co-existing exculpatory facts, which are compatible with the 1st appellant’s innocence. He submits that if the Court of Appeal had re-evaluated the evidence as a whole it would have realized the possibility that the severe injuries found on the deceased were caused accidentally in a fall resulting from an epileptic attack; and that