THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN
AT TORORO
CRIMINAL SESSION CASE NO. 48/93
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR
VERSUS
DONATO OKWARE OTHIENO::::::::::::::::::::::::::::::::::::::::::::::::::::::ACCUSED
BEFORE: THE HON. MR. JUSTICE C.M.KATO
JUDGEMENT
 

The accused person Donato Okware Othieno is indicted for the murder of one Pius Ochieng Jadwong contrary to the provisions of suction 183 of the Penal Code Act.

The gist of the case for prosecution has been that on the night of 26^th October, 1991 at the village of Nyim-Nyim in the District of Tororo the accused murdered the deceased Pius Ochieng Jadwong.

The accused pleaded not guilty to the indictment and set up a defence of alibi.

It is trite law that when an accused person pleads not guilty to any charge the prosecution is enjoined to prove each and every ingredient of the offence with which the accused is charged.

It is also required by the law that the prosecution must prove its case beyond reasonable doubt because the accused has no duty to prove, his innocence: Woolmington v D.P.P. [1935] AC 462. Uganda v Joseph Lote [1978] HCB 269. It is our principle of the law that as accused person should be convicted on the strength of the case as proved by prosecution but not on weakness of his defence: Insrail Epuku s/o Achietu v R [1934] I 166 at page 167.

In a case of murder like the one now under consideration the prosecution must prove that somebody was killed, that the killing was unlawful, that the killer had malice aforethought and that the accused indirectly or directly participated in the killing. In the instant case it is not seriously disputed that on the night of 26^th October, 1991 Pius Ochieng, Jadwong, was violently killed at his home. It is also an accepted fact that his killing was effected by shooting. These facts clearly show that his death was not accidental and therefore it was unlawfully caused. It was said in the case of Gusambizi s/o Wesonga v R [1948] 15 EACA 65, that in all cases of homicide death is said to have been unlawfully caused unless it is accidental or has been authorized by law. In the present case it cannot he justifiably said that