THE REPUBLIC OF UGANDA

 
   IN THE HIGH COURT OF UGANDA, AT MBARARA

           CRIMINAL SESSION CASE NO. 254 OF 1997

UGANDA……………………………… PROSECUTION
                                          VS
Al NUWAYINAMANI YUBU)
 A2 KAMWESIGYE ) ………………………..ACCUSED
 A3 KAVIGI EDSON )

BEFORE: THE HON. JUSTICE V. F. MUSOKE-KIBUUKA

                               JUDGMENT
Introduction
The village of Mugono, in Itojo sub-county, Mbarara District, was thrown into extraordinary disquiet on 4^th August 1996. At about 9.00 p.m.a loud thundering noise occurred in the home of Rwakanigane Festo, the deceased in this case. After a short time, the deceased’s dead body was found lying near his kraal.

 Subsequently, the three accused persons were jointly charged with the murder of the deceased contrary to sections 183 and 184 of the Penal Code. Each of them pleaded not guilty.

 The prosecution alleged that the three accused persons, on or about the 4^thday of August, 1996, at Mugono village, in Itojo sub-county, Mbarara District, murdered one Rwakanigane Festo.

The original indictment contained the names of six accused persons. They were all jointly charged with the same offence of murdering Rwakanigane Festo. The six included the present three accused and Twesigye Herbert, Mugume Baker and Bataringaya Geofrey. However, on 5^thJuly, 2000, The Director of Public Prosecutions entered a nolle prosequi withdrawing charges against Twesigye Herbert, Mugume Baker and Bataringaya Geofrey.

 
Prosecution’s Case

In summary, the prosecution’s case, based upon the evidence adduced by the prosecution and accepted by this court, is as below:

 The deceased lived in Mugono village, Itojo, in Mbarara District. He was aged about 53at the time of his death. He was the biological father of Al andA2 and both accused lived with the deceased more or less in the same homestead.

The deceased was not a man of little means. He owned several heads of cattle. He also had a large and well-attended banana plantation.

 When, in 1996, about three months before his demise, the deceased married a second wife, relations in the home became sour. The elder wife who was the mother ofAl and A2 left the home.

 A3 had no relation with the deceased. He was an LDU who hired a single room as his residence at Nyamukana trading centre. He used to guard Nyamukana trading centre and used to carry a gun whenever he would be on duty.

On 31^st July, 1996, one Twesigye presented to A3 a proposal allegedly made by Al offering Shs. 600,000 for the killing of Al’s father. On 1^st August, 1996, at Nyeihanga, along Mbarara/Kabale Road, Twesigye and Al met A3 and a fellow LDU called Baker Mugume. The terms of the contract were further discussed.

 The final meeting to conclude the contract was held on Saturday, 3^rd August,
1996. The contractual sum was confirmed to be Shs. 600,000. The day for
the performance of the contract was also fixed to be Sunday 4^th August,
1996.

 On Sunday 4^th August, 1996, A3, who was on duty, withdrew from it. Accompanied by Mugume Baker and armed with a rifle, A3 proceeded to the home of Al at about 8.30 p.m.

 After final briefings, at Al‘s house, Al sent his young brother A2 to the house of the deceased to call him outside. The deceased was already in bed. A2 deceived the deceased that his cattle had broken the kraal and strayed into the gardens. In the meantime, Al, A3 and Mugume Baker had taken up a position among the banana plants. The deceased had moved 58 paces from his house and was about 34 paces to the kraal when he was struck by a single bullet on the right side of the lumber posterior. He died instantly.

PW6, Dr. Kworora, then at Itojo Hospital, examined the body of a well- nourished African male of about 53 years of age. It was identified to him as that of Rwakanigane Festo by PW 1, Kweyamba Godfrey, a brother to the deceased.

 PW6, found a penetrating wound on the right lumber posterior, measuring
21/2inches in diameter. A corresponding penetrating wound measuring 5 inches in diametre was on the right-based regional of the chest. The 7th, 8th and 9th ribs had been shattered and the right lung and the liver had been injured. The cause of death was stated to be hemorrhage following the injuries to the lung and liver. The post mortem report made by Dr. Kworora is marked as Exhibit P6.

 
On 5^th August, 1996, PW2 and PW3 — No.28276 and No. 13567 Dt. Cpl. Tukwasibwe Robert and Dt. Sgt. Turyagumisiriza David, visited the scene of crime. PW3 drew up a sketch plan, Exhibit P3. They arrested Al at the scene of crime.

 
On the August, 1996, both witnesses travelled to Nyamukana trading centre where they found A3 already arrested by the LCS. A3 revealed to the two witnesses that he had shot the deceased and that he was with Al and two others. A3 led PW2 and PW3 to a single room house which he rented at Nyamukama trading centre as his residence. He showed an SMG rifle, AK47, No. 56.128031839, with its magazine containing 9 rounds of ammunition, which he told the two witnesses that he had used to shoot the deceased. They recovered both the gun and magazine of ammunitions and handed them over to PW7, Dt. Constable Nyanzi Rashid at Mbarara Police Station. The rifle is Exhibit P.1 while the magazine with 9 rounds of ammunition is marked as Exhibit P2, on the record.

 
On 12^th August, 1996, A3 recorded a charge and caution statement before PW5, Dt. AlP Kwezi Josua. The exhibit is marked as Exhibit P5. A3 narrated, in details, the circumstances leading to the death of the deceased. He admitted his personal participation and implicated both his co-accused’s in varying degrees.

 Similarly, on the same day, A2 recorded a similar statement before the same police officer. His statement is marked as Exhibit P7. In that statement A2, to some degree, exculpated himself, but he fully implicated both co-accused.

 On the other hand, in his charge and caution statement, Exhibit P4, made before PW4 Dt. IP Barutagira, on 8th August, 1996; Al totally denied the offence.

 During the course of the trial both A2 and A3 repudiated and retracted their respective statements. However, each statement was subsequently proved against the respective accused during a trial within a trial. The two statements are marked as Exhibits P7 and PS, respectively.

 
Defence 
The defence comprised of a statement by each accused, made upon oath.

 Al presented a total denial of the offence. He confirmed that the deceased died on 4thi August, 996. He stated that he was spending most of the days at Bubare where he operated a shop and a coffee buying business. However, he admitted that during the three days preceeding the death of his father he had been at his home at Mugono. He spent the entire day of 4th August, 1996, at his home. While he was sleeping, during the night, he heard a thundering sound. He sought it was going to rain. But after some ten minutes, he heard an alarm which was coming from the direction of his father’s house.

 Al went to his father’s house and was informed by his step mother whose name he did not know that thieves had invaded the home. He reported to the LC 1 chairperson, Kabwekyere Donozio, who, together with the village’s defence secretary and Al reported the case to Itojo sub-county from where they obtained two armed Local Administration police personnel who accompanied them to the scene. Al denied that he took part in the killing of his own father.

 A2, in his sworn statement, also admitted that the deceased is dead. He however denied any knowledge of how he died. He put up an alibi claiming that he had left his father’s home on 25th July, 1996 for a visit to his uncle’s home at Rukoni. The uncle was called Kangwamu. A2 claimed that he had remained at