THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION CASE NO 196/2016

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

V E R S U S

MATOVU FRANK & 2 ORS:::::::::::::::::::::::::::::::::::::::::::: ACCUSED

                BEFORE: HON. JUSTICE EMANUEL BAGUMA

RULING

1. Matovu Frank, Sebire Ronald and Kabalu Saaka were indicted with the Offence of Murder contrary to Sections 188 and 189 of the Penal Code Act, Cap 120. It is alleged that Matovu Frank, Sebire Ronald and Kabalu Saakaon the 3^rd day of February 2016, at Lunoni Village, in Gomba District with Malice Aforethought unlawfully killed Nzabanterura Yusuf Buteera.
2. The Accused persons denied having committed this Offence and as such, a plea of not guilty was entered.
3. The background of the case is that on the 3^rd day February, 2016 at about 0800 hours, the deceased left home and went to his carpentry business situate within Luzira village. The deceased did not return home as expected, and in the morning of 04^th February, 2016 his wife TUSHABE FULUMINA mounted a search for the deceased. She was informed by a one Byansi who owns a garage where the deceased had taken his bicycle for repair that the deceased then went to MUWONGE VINESIO’s bar, but he never came back for the said bicycle. TUSHABE FULUMINA then went to MUWONGE VINESIO who told her that the deceased was at his bar the previous night, and that he was with MATOVU FRANK (A1), SEBIRE RONALD(A2) and another called BYANSI, all residents of Luzira village, Bulwadda parish, Kabulasoke Sub County in the Gomba District. That the deceased got a misunderstanding with MATOVU FRANK (A1), Sebire Ronald (A2) and BYANSI WILBERFORCE and the said MUWONGE VINCESIO chased them out of the bar as they wanted to fight. As TUSHABE FULUMINA was still looking for the deceased, she met KABALU SAAKA who told her that the deceased had travelled a long distance and got problems, so she would never see him again. The deceased was found dead on the 6^th day of February 2016, in a bush at Lunoni village while the same had started decomposing.
4. When the Charge was read and explained to the Accused persons, they pleaded not guilty and a plea of not guilty was entered thereby setting in issue all the ingredients of the offence charged. Prosecution had to prove each and every element of the Offence charged in order to secure a conviction against the Accused person. See Ssekitoleko vs. Uganda [1967] EA 531.
5. Matovu Frank, Sebire Ronald and Kabalu Saaka were represented by Mr. Okwalinga Moses and Mr. Bwiso Charles Senior Resident State Attorney represented the state.
6. In order to consider the culpability of the Accused persons, certain several principles of the law are considered. The Accused persons are presumed innocent until the contrary is proved.
7. Therefore, the Prosecution bears the burden to prove not only the fact that the offence was committed but that it was committed by the Accused persons or that the Accused persons participated in the commission of the alleged Offence. It is therefore relevant to place the Accused persons at the scene of crime.
8. Regarding the standard of proof, the Prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt. See: Woolmington Vs. DPP [1935] AC 462. However, this does not mean proof beyond shadow of doubt. If there is a strong doubt as to the guilt of the Accused persons, it should be resolved in the favour of the Accused persons. Therefore, the Accused persons must not be convicted because they have put a weak defence but rather that Prosecution case strongly incriminates them and that there is no other reasonable hypothesis than the fact that the Accused persons committed the alleged crime.
9. The standard of proof is beyond reasonable doubt.See a case ofMiller Vs. Minister of Pensions (1947) 2 .All .ER 372 at 373
10. With respect to the nature of evidence required, the Accused persons can only be convicted on the basis of credible evidence adduced before Court and not tainted by any lies or hearsay.
11. The law is that in order to sustain a conviction, Prosecution must prove the ingredients of the Offence of Murder below;

• That Nzabanterura Yusuf Buteera is dead.
• That his death was unlawfully caused.
• With malice aforethought.
• That he was killed by the accused persons

1. The Prosecution called a total of three witnesses. Namely, Mr. Muwonge Vinesio PW1, Tushabe Fulumina PW2, and Byansi Wilberforce PW3 in a bid to prove its case. Thereafter, the Prosecution closed its case. Upon closure of the Prosecution’s case, both the defence counsel and the prosecution opted not to make submission of no case to answer and left it to court.
2. In the preliminary hearing, Post Mortem report dated 7^th/2/2016 carried out by Dr. Olupot Patience at Gombe Hospitalwas tendered in court and marked exhibit PE.1
3. Police Form 24A in respect of A1wastendered as PE.2, Police Form 24A in respect of A2was admitted and marked PE.3 and Police Form 24 in respect of A3 was admitted and marked PE.4
4. PW1 Muwonge Vinesio aged 56 years old. A peasant farmer and a resident of Kabulasoke in Gomba District, told court that he knew the deceased and all the accused persons. He said that on the 3/2/2016 at 7:00pm, he was at home in his bar at Lanoni. A1 and A2 came and started drinking and smoking. The deceased had come earlier with one Byansi and were also drinking. He told court that A1 and A2 were drinking “Walagi” smocking and dancing. The deceased and Byansi who were not smocking started quarrelling with A1 and A2, PW1 intervened and he separated them. While A1 and A2 were still drinking and smoking, the deceased and Byansi went away. The deceased asked for his items which PW1 had kept for him and after getting them, he went away. A1 and A2 remained in the bar drinking and dancing for some minutes but followed the deceased and Byansi who were still in the compound. They were all going to the same area and he closed his bar.
5. PW1 said that after 3 days, he was at home, PW2 came with her brother in law Baruga and told him that the said Nzabantanduka had gone missing. He told court that PW2 and the brother had come to ask him since the deceased used to drink from his bar. PW2 told PW1 that the deceased had gone missing three days back. PW1 told them that he was in his bar but left with A1, A2 and a one Byansi quarrelling. PW1 told court that he told PW2 to go and ask A1, A2 and Byansi the deceased’s friend. PW1 said that while he was still talking to PW2 and the brother, he saw A2 from a far and he called him. He asked A2 about the whereabouts of the deceased when they left his bar. A2 told PW1, PW2 and PW2’s brother that they separated with the deceased and he went to his former home where he had just shifted from.
6. PW1 further told court that while they were still wondering where the deceased could have got lost from, a one Kawuki who was also near where they were seated told them that he was with another called Katayi and saw abandoned shoe and the place had signs of scuffle and something wassmelling. They then decided to go and check the place, they looked around and saw the body of the deceased and it was decomposing. The body was dressed in the trouser and shirt which the deceased was in on the day he was in PW1’s bar. The shoe which Kawuki had told PW1 about was also recovered at the scene. They then went and called the chairman of the area. He said that when he came back, he found when A1, A2 and one Byansi had been arrested and were at the scene of crime.
7. In cross- examination, PW1 told court that A1 stayed in 2 miles from his bar, A2 stayed in 200 metres from his bar, A3 stayed in 200 meters from his bar and the deceased stayed in 2 miles and ½ from his bar.
8. PW2 Tushabe Fulimina aged 30 years, a peasant farmer and a resident of Luzira village in Gomba District told court that the deceased was her husband. She said that she knew all the accused persons. She said that on the 3^rd/2/2016her husband left early in the morning and he went for work. He was a carpenter but he never returned home. On the 4^th/2/2016 she went to the landing site to look for him. She found his bicycle at Byansi’s home parked in the compound. She asked Byansi about the whereabouts of her husband, Byansi told her to go and ask one Muwonge where the deceased had gone. Byansi told PW2 that the bicycle had been parked at his compound by a mechanic whom he did not recall his names. Byansi and the deceased knew each other and they used to move together.
9. PW2 told court that she was told by Byansi that the deceased had gone to Muwonge’s place to drink. She went to Muwonge’s place. When she reached, Muwonge told her that the deceased had left his place with A1 and A2 plus Byansi Matovu who also stayed in the same village. She said that Matovu was also arrested but later on released.
10. She said that when Muwonge was telling her that the deceased had left his home withA1 and A2 plus Byansi Matovu, she saw a mechanic whom she did not recall the names. The mechanic asked for money for repair of the bicycle from PW2. The mechanic told her that the deceased had paid ½ of the money and promised to bring the balance. He had parked the bicycle at Byans’s place, PW2 took the bicycle. PW2 said that while at Muwonge’s place, A3 who was near heard her asking about the whereabouts of her husband. A3 told PW2 that her husband had travelled a long journey and he will never come back. PW2 told court that she did not understand what A3 meant by that statement. She said that she checked around in different joints, but did not find her husband.
11. PW2 further told court that the next day, she went back to Byansi Matovuwhom Muwonge had told her that her deceased husband was with. She said that Muwonge told her that on the 3^rd day of February 2016,Byansi left the bar with deceased, A1 and A2 but while on the way, he left the deceased with A1 and A2. She went and reported the matter to the chairman of the area called Kato, she was then advised to tell the brother of the deceased which she did and they went together to the landing site. While at the landing site, PW1 called A2 who was near at the landing site and asked him about the whereabouts of the deceased. A2 told her that it’s true they moved together but on the way the deceased went to his former home where he shifted from. PW2 told court that the deceased’s former home nobody stays there. It is abandoned.
12. She said that thereafter, she moved to A3 with the brother of the deceased and she asked him why he was saying that the deceased went a long journey but he replied them and said that he did not know luganda and he did not understand what he was saying. PW2 told court that she then went with her brother in law to the deceased’s former place but as they were moving, they heard an alarm and many people were moving and running, A2 and A3had been arrested. When she reached the scene where the dead body was, PW2 said that she saw when the body of the deceased was decomposing. It had injuries at the neck with a deep cut and his trouser was ½ way. After recovering the body, it was taken by police
13. In cross- examination, PW2 told court that A3’s home is near Mwonge’s home about 40 metres away. She said that the body was recovered in the bush on the road coming from the drinking joint going to Luzira village going to their home. She said that the route also goes to Byansi Matovu’s home.
14. PW3 Byansi Wilberforce aged 45 years, a peasant farmer and a resident of Luzira village in Gomba District told court that he had known the deceased for one year and was his friend. He told court that he also knew all the accused persons. He told court that on 3^rd/2/2016 between 6-10pm, he was in the village at Lunoni in the bar of Muwonge drinking with the deceased and A3. In the same bar, A1 and A2 were also drinking on their own. PW3 said he was seated with the deceased and A3. As they were drinking, A1 and A2 were smoking from outside, A1 and A2 started quarrelling with the deceased but Muwonge took A1 and A2 in another room. PW3, the deceased and A3 remained seated in their place. After words Muwonge the owner of the bar wanted to close the bar and they decided to go home. He said that he proceeded with the deceased as A1 and A2 followed them. When he reached on the way at the junction going to his home, he branched to his home and the deceased proceeded with A1 and A2. A3 was the first to branch off before PW3. He said that after two days, he got information from the deceased’s wife that the deceased disappeared. They started looking for the deceased till when he learnt that the deceased was found in the bush dead.
15. In cross- examination, PW3 told court that A3 stays near Muwonge’s bar.He said that it is a short distance of 300 metres from A3 to PW3’s place, for A1 its 500 metres and for A2 its 1km.
16. PW3 said that the deceased had a former place which is one mile from his place but the deceased’s body was recovered in Lunoni which was between the home of A1 and A2 after the junction going to A1’s home.
17. He said there was a quarrel in the bar but when Muwonge separated A1 and A2 there was no more quarrel. He said the T-shirt A2 was putting on was yellow in colour and had blood on it and it was taken to police

RESOLUTION

1. It is trite law that prior to placing an Accused person to his/her Defence, the Prosecution is required to have established a prima facie case against such Accused person. It is now a well-established law that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence would convict the Accused person, if no evidence or explanation was set up by the Defence. See Rananlal .T. Bhatt vs. R [1957]E.A 332,in the Bhatt case, the East African Court of Appeal held that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited Prosecution evidence.

1. I have carefully looked at the Prosecution evidence and I find that, the prosecution has established a prima facie case that require you Matovu Frank, Sebire Ronald and Kabalu Saaka to give your defence.

1. There are three options for you Matovu Frank, Sebire Ronald and Kabalu Saaka; you may decide to keep quiet and not say anything or you may decide to give sworn evidence and when you give sworn evidence, you will be cross- examined or you may decide to give unsworn evidence and if you give unsworn evidence, you will not be cross-examined. So choose the option of your choice through your Lawyer.

………………………

Emmanuel Baguma

Judge

24^th/09/2018

19/10/2018- 10:00 a.m.

Three accused in court.

Attendance:

Mr. Bwiso Charles  Senior  State Attorney for state.

Mr. Kumbuga  for accused on state brief.

Tabula Edward

Najjemba Regina      Assessors.

Mulinde  Victorious court clerk.

Prosecutor:      For judgment.           

Defence:                       I am ready to receive the  judgment.

Court:               Judgment ready and read in open court.

Emmanuel Baguma

Judge.

19/10/2018

Prosecutor:                   Aggravating factors

A1 and A2  have no criminal record.

I pray for 25 years  imprisonment , based on nature of the offence and circumstances.

Defence:                     Mitigating factors

The two accused person are the first offender.  They are remorseful they had quarreled with the deceased.  They were also friends to the deceased whom they were drinking together.  They were misled by drinking.  I pray that since the accused have been on remand since 11/3/2016.  They have sufficient two years, seven months and 8 days.

I pray for 20 years imprisonment, the accused will reform.

Court:               Sentence and reasons for sentence for A1 and A2.

I have considered the submissions by both the prosecution and defence.  I have also considered the nature of the offence and   circumstances under which the offence was committed.  This was full trial and the accused A1 and 2 murdered the Innocent person.  I will sentence A1 and A2 to 24 years, seven months and 8 days.  I will deduct the time spent on remand i.e 2 years seven months and 8 days.

Each accused (A1) and A2 are sentenced to serve a period of 22 years imprisonment.

Emmanuel Baguma

Judge

19/10/2018

Court:             Right of appeal within 14 days  explained to A1 and A2.

Emmanuel Baguma

Judge

19/10/2018