THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
CRIMINAL SESSION CASE NO. 0312 OF 2013
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION
VERSUS
JACKLINE UWERA NSENGA ::::::::::::::::::::::::::::::::::::::::::: ACCUSED
BEFORE:HON. JUSTICE DUNCAN GASWAGA
JUDGMENT
[1]JacklineUweraNsenga (accused) stands charged with the offence of murder contrary to section188& 189 of the Penal Code Act. The particulars of offence are that the accused on the 10th day of January 2013 at plot 6 Muzindalo road, Bugolobi, Nakawa Division in Kampala District, with malice aforethought caused the death of one Nsenga Juvenal. The accused denied the charges and the prosecution called 13 witnesses in a bid to prove its case beyond reasonable doubt. For her defence, the accused presented evidence from five (5) witnesses.
[2] Briefly, the case is as follows. On the night of 10th January, 2013 at about 09.00 pm the accused returned to their residence in Bugolobi where she parked outside the gate and waited. She pressed the bell and her husband, Juvenal Nsenga (hereinafter referred to as “Nsenga” or “deceased”), came to open the gate. It was during the process of opening the gate that the accused’s car knocked it open and overrun the deceased. The deceased was then dragged on the rough surface of the driveway for a distance of 10.3 metres. He sustained multiple injuries on his body. Immediately after the incident, the accused sought assistance from some people to put the deceased into the same vehicle and delivered him to Paragon Hospitalin Bugolobi. About five hours later, Nsenga was pronounced dead at the said hospital. The prosecution contends that the deceased was knocked intentionally given the marital acrimony between the deceased and accused. The defence case is that although the accused had admitted to overrunning her husband with the car she was driving, she didn’t intend to kill him. It was her testimony that the car simply jerked and ended up knocking him. The couple had been married since 1994 and blessed with two children.
[3] It is important to state from the outset that its common knowledge that there is a civil suit filed in the Family Division of the High Court regarding the estate (property/ assets and liabilities) of the deceased involving the accused and some of the prosecution witnesses in this case. I must warn that the matter before me is not a civil case that will determine property and other rights. This court is sitting as a criminal court with a mandate to establish the culpability or guilt or innocence of the accused at bar, and nothing else!
Prosecution Case / Evidence
[4] I find it imperative to start by summarizing the evidence adduced in this case. PW1 Dr. Moses Byaruhanga, is a pathologist by profession. He isemployed as a Commissionerof Police and Chief of Health Services by the Uganda Police Force. He testified that on the 12th of January, 2013 at 11.30 a.m., he carried out a post-mortem examination on the body of Nsenga which was identified to him by one Ahimbisibwe Bernard. The deceased had injuries all over his body including fractured ribs and damaged lungs. There was accumulation of blood in the chest and bleeding on the heart. He had fractures on his left wrist and the lower leg was broken. That other injuries included closed fractures of the thighs, spine and tibia, visible proximal skin tags or heaping of the skin at the distal end which signifies that the body was dragged and the skin peeled off, and linear friction abrasions indicating that the body was dragged over a rough surface on the back. There were more abrasions on the gastric area, mouth, forehead and shoulders with destocking tags. It was also his evidence that he noticed patterned abrasions (tyre marks) on the body meaning that a vehicle had gone over the deceased’s body. His left external ear (the pinna) was detached from the head and brought separately in a plastic bottle. The Doctor concluded in his post-mortem report (PE2) that the cause of death was multiple blunt force injuries. He was not cross-examined.
[5]PW2 Innocent Bisangwa, was an elder brother to the deceased. Hetold court that the accused had called him at about 09.30 pm on the 10th of January, 2013 to say that she had knocked Nsenga as he was opening the gate for her to enter their home. That she was crying and kept talking. That she also told PW2 that given that he knew their marital relationship, the world was going to misunderstand her and think she tried to kill her husband. PW2 advised the accused to stop judging herself and the conversation ended. He then called one of his young brothers, Joseph Kananura (PW4) and instructed him to immediately go to Paragon Hospitalwhere Nsenga had been admitted. PW2 explained that his young brother (Nsenga) and the accused did not have a good relationship in their marriage and home at all. They did not talk very easily and tended to avoid each other. That they were living together in the same house but in different rooms although the husband provided for the family.
[6] It was also his evidence that the accused, in the presence of her sisters and one Faustin Mbundu, her brother -in-law, explained to them that the car had jerked as she was waiting for the gate to be opened. Further, that it was unintended for her to knock the gate and run over her husband. PW2 had observed that the car had no dent at all, not even at the front. He however noticed the bent bolt and the gate itself which looked intact.
[7] In cross-examination PW2 had said that he was close to the couple and was the best man at their wedding in 1994 and used to advise them whenever they had problems. That he had started receiving complaints of misunderstandings between the accused and deceased five years after their wedding. The accused was the first to complain while the deceased lodged the last complaint two weeks before his death that the accused was not communicating with him, she was never at home most of the day and would come back late in the night. That she would never attend to domestic affairs, leaving everything to house helps who were incompetent with young children. On the other hand, the accused’s complaint was that she never understood Nsenga’s behaviour. That he could remain silent and not respond or act quickly to things.
[8]PW3DonatKananura,the father of the deceased, told court that he had been called to Paragon Hospitalby his son Joseph Kananura. On arrival he found Mrs Angella Kayihura seated with the accused at the reception and just bypassed them as he proceeded to the Emergency room where Nsenga was. That Nsenga told him that “Jackie (accused) had knocked him and not the gate”. He said that the relationship between Jackie and her husband before that incident was very bad from way back. They used not to communicate; they had separated beds. That the wife was not listening to the husband. That his son used to go and tell him that his wife had defeated him. That he could not tell her anything and she listened. Further, that she used to come back at night yet she was not working. That PW3 used to sit with Nsenga and he could tell him all about his wife and everything was not good. He called the accused and talked to her not once, not twice, but several times. PW3 also told her that she had destroyed her marriage and advised her to listen to her husband. That when Nsenga told her not to go out at night she would just go. It was PW3’s evidence that sometime back the accused chased away his other children (Nsenga’s sisters) from her home. That when PW3 was operated on she never went to see him. Neither did she go to see his wife (mother-in-law) when she was admitted to NakaseroHospital for a month and underwent surgery. PW3had spent many years without seeing the accused.
[9] That while at home in the bedroom and in the presence of Mrs Kayihura, accused’s elder sister Chantal, and Faustin Mbundu, PW3 said “have you seen what Jackie has done? I talked to her and she never listened. Jackie has killed my son and all she did showed that she would kill him”. That at that point Jackie’s sister Chantal (DW4) told her to ask for forgiveness whereupon she knelt down and said “Mzee, I am sorry”. PW3 forgave her. In cross-examination, PW3 admitted having told Jackie at Nsenga’s wedding not to separate his family because his other children were staying at Nsenga’s home.
[10]PW4 Joseph Kananura, testified that at about 9.00 pm to 10.00 pm on the 10th of January, 2013 while at his hotel on Namirembe road he received a call from his brother, Innocent Bisangwa, instructing him to go to Paragon Hospital where Nsenga had been admitted. He found the accused sitting with Mrs Kayihura near the reception and just proceeded to where Nsenga was. That Nsenga was in deep pain and when he turned his head he noticed that one of the ears was missing. PW4 sent one of his brothers to go to the scene and retrieve the ear. It was brought by Saad Ndangiza in an envelope and handed over to the Doctors. That Donat Kanura (PW3) entered the room and as PW4 was explaining to him what had happened to Nsenga, as narrated to him by the accused that Nsenga had been hit by the gate, Nsenga said “no”. He also said in Kinyarwanda that “my wife has killed me in my own home”.It was also his evidence that he was on good terms with the accused and whenever he went to Nsenga’s home the accused could greet him and just pass without greeting her husband. PW4 had also confirmed that none of their family members went to police to report this case but that it was the hospital adminstration that stopped them from taking away the body before the police came. And subsequently, the police came to them for statements after the burial.
[11] PW5 MosesKananura told court that on the 10th of January, 2013 at about 9.00 pm while at his father’s residence in Muyenga, Joseph Kananura called him to go to Paragon Hospital. That he found Nsenga in a pool of blood and his leg was twisted. Upon asking Nsenga what had happened, he told him in Kinyarwanda that “my wife has killed me from my own home.” That since the room was small, PW5 stepped out to allow other people in. When he spoke to Nsenga again, Nsenga told him that “my own vehicle has knocked me from my own home”. He also testified that, while in the emergency room, Nsenga asked him to get his car keys from the accused. But the accused said she did not have the keys.
[12] That PW5 knew Nsenga kept most of his valuables in his cars. He kept some of his confidential documents and money in his cars and not in his house due to lack of trust. PW5 returned to the accused several times but could not get the keys. Meanwhile Nsenga insisted that PW5 should remove the car keys from the accused. PW5 searched the accused’s car twice before recovering those keys from the door jacket. Nsenga also demanded that PW5 retrieves his phone from the accused who was at the time holding his torn trouser. His car keys and phone had been left in the torn trousers and Nsenga remembered this very well. The accused denied having the phone. PW5 advised her to check in her handbag wherefrom the phone was eventually found. It was returned to Nsenga and he switched it off. He directed PW5 on where to find the key for the van and the one for the BMW which was kept in the van. Nsenga then instructed PW5 to keep all those things. PW5 also said that they worked together with Nsenga, he used to go to his residence every day to discuss business and was always in charge of Nsenga’s things.
[13] It was his evidence that the accused and deceased didn’t speak for several years, or even greet, for about 5 years or 3 years. PW5 had lived with them in their home for some time. That their relationship hadn’t really gotten to that worst point but it wasn’t also good. That Nsenga had told PW5 that most of the time his wife was not around and he had to be there for the kids. He further testified that at the hospital, the accused never interacted with Nsenga and she was all the time outside the room sitting at the reception area with Mrs. Kayihura. That even when she tried to assist Nsenga to ease himself (urinate), he (Nsenga) ordered her out of the room and said that he needed PW5 only in the room.
[14]PW6SaadNdangiza, a friend and business partner to Nsenga testified that he was informed about Nsenga being admitted in Paragon Hospital at about 09.40p.m. and he went there. That he found Nsenga in deep pain withwounds all over and broken bones on the left side. That he held Nsenga’s arm as they continued talking. Nsenga told him in Kinyarwanda that “see what my wife has done to me”. PW6 also testified that Joseph Kananura sent him home for Nsenga’s ear which was missing. That when he entered the compound, he found two men whom he had seen earlier on at Paragon Hospital escorting and guarding the Police Commissioner’s wife (Mrs. Kayihura). That the two men were already at the scene of crime claiming to be searching for the ear. He then searched the area and recovered the ear from a pool of blood in the corner of the driveway about 7 to 10 metresfrom the gate. He placed the ear in a paper bag and took it to Moses Kananura. That PW6 had also assisted with the pumping of Nsenga’s chest (resuscitation) until shortly thereafter when they were told that he had passed on. They wrapped the body. Saad then drove the accused’s vehicle back home from Paragon Hospital. He said that the exhaust pipe was not in its position because whenever he went over humps he could hear it crushing down. He had also noticed the color of the gate on the bumper of the car.
[15] PW7 Loretta Mutoni, a cousin to the deceased, testified that her deceased father had been a brother to Nsenga’s father and shelived with the accused and the deceased for over 10 years (2000 to 2011). Nsenga was her guardian since her parents passed away, and used to pay her school fees before and at the University in Malaysia. She related that on the 29th of December 2012, Nsenga had called her at his residence to go and pick up money for her ticket to return to school. That while in the sitting room, talking normally with Nsenga and hischildren, the accused came and asked the children to go to the kitchen, she then requested to talk to Nsenga and Lorreta. That she was speaking to them in an angry tone saying that Nsenga and Lorreta were no longer listening to her. That Lorreta was disrespectful to her and would come to her home and ignore her and not greet her. In her further evidence, Lorreta said that the accused’s last words to her and Nsenga were, “by the way, I am capable of doing very many things that I myself I’m scared of the length I can go.” These threats were met with silence from both Nsenga and Lorreta. In addition, Lorreta stated that she had never disrespected, argued or fought with the accused, only that in 2011, a few days before she left for university in malaysia, the accused had spoken to her in a rude way when she was angry and she decided to go and live with her sister for the remaining days. Lorreta told court that the couple’s relationship was estranged; it was not a normal happy family or happy couple. The husband used to have his own room and they would not even say “hello” to each other for quite a while. They would all go out and come back separately and not interact.
[16] In cross-examination PW7 said she had left the accused’s home on her own because the accused had become rude to her and denied having been sent away. Asked when she started getting problems with the accused, Lorreta answered that she hadn’t realized that she had a problem with the accused until the accused started treating her in a rude way around 2009-2010. She denied having gone to Nsenga’s bedroom or dressed skimpily while in Nsenga’shouse. Mutoni also specifically denied having had an intimate affair with Nsenga and or competing with the accused for a man. She said that the accused was not violent but has a short temper and would easily get angry, shout, quarrel and once almost slapped a maid.
[17]PW8 No. 40291 Detective Sergeant Munaku John Bosco the Scenes Of Crime Officer (SOCO) told court that on the 11th 2013 he received a call from Detective SP Bogere Ronald OC CID Jinja road at around 8pm telling him to respond to a crime scene of accident at Bugolobi. Thattogether with his team, PW8 examined the motor vehicle Reg. No. UAL 933M Toyota Mark X, blue in color, and found that the left side of the bumper had greenish striation marks originating from the number plate. He examined the scene (sketch plan PE5) and also the vehicle; took photographs of them (PE4) and prepared a report (PE3) ofhis findings. He noticed that the vehicle did not get any damage although it had hit the metallic gate. The witness had also led the court to the scene of crime where he took it through his report while pointing out the various salient points on the ground. He also made several demonstrations with the car at the gate.
[18] PW9 Detective AIP Nabalanyi Christine told court that she was in office when Inspector Onen OC Traffic asked her to go to Paragon Hospital where a victim of an accident had passed on. That while in the hospital she saw the deceased’s body which bore multiple injuries and without the left ear. She then informed the OC CID Jinja road that they needed to take his body to Mulago for examination. It was her evidence that at the scene she saw a bent bolt and blue paint at the lower part of the green gate. She also marked the points where the vehicle and the victim rested after the incident. She interviewed the accused and recorded her first and second statements on the 11th January 2013 and 24th January, 2013 respectively.
[19] PW10 Prof. Jackson Mwakali, head of the team of engineers from Makerere University Kampala, told court that on 1st February 2013 the Uganda Police requestedthem to carry out some investigations relating to a gate in Bugolobi. He stated that, save for the horizontal bolt; the vertical bolts were not damaged meaning that the gate had not yet been opened when it got hit. He also opined that given the damage caused and bearing in mind the strength of the horizontal bolt and the weight of that car, the car must have been moving at a speed of between 41 - 61 Kph when it came into contact with the gate. For such speed could produce the requisite force to bend the bolt at an angle of 129 degrees.
[20] PW11 Mugimba Andrew the Inspector of Vehicles and his team examined the vehicle for any scratches and damages. They also carried out road testing to look for any strangenoises or vibrations by touching or by feeling the vehicle. They noticed that the vehicle has interior safety devices, four air bags and seat belts. It has exterior safety devices like obstacle sensors. In his expert opinion, none of the vehicle systems was found defective at the time of inspection and the vehicle was fit for road use.
[21] After the incident, the accused with the help of PW12 Ouma Richard, a security officer with protectorate SPC, the neighbour’s gardener and the accused’s house girl Jessica Namwanjje DW4 carried the deceased into the car. The accused took him to Paragon Hospital. PW12 and DW4 heard the accused saying “sorry sweet heart, sorry darling” to the deceased who only kept groaning in pain.
Defence Case / Evidence
[22]DW1, Jackie Uwera Nsenga, the accused, stated that she was a business woman and met the deceased in Nairobi before getting married in 1994. That the accused and the deceased enjoyed a good marriage without secrets and oftenwent out together. However, when the accused returned from the USA after giving birth to their second born child, she noticed a lot of changes in her husband’s behaviour. That he was secretive and wouldn’t go out together any more. He was no longer spending time with the accused as before which she found to be a challenge. The accused talked about it to Innocent Bisangwa who was their best man. That when she spoke to the father-in-law, he asked her whether Nsenga was not buying food at home and advised her to relax with the hope that things will get back to normal.
[23] That by 2003, 2004 and 2005, the number of times Nsenga was going out had increased from around two times a week to seven times a week. Mrs Bisangwa counselled the accused and advised her to pray andwait on God. That in 2005 the accused turned her life to Christ and used to fellowship with a group of women Mrs Bisangwa used to pray with but nothing changed at home. That since Nsenga’s going out was worsening the accused reported the matter to her father-in-law. Be that as it may, the accused said that these were just challenges and nothing serious. Nsenga had never fought her nor argued with her. And that if there was any issue they would sit down and discuss.
[24]She confirmed that Lorreta had lived with them from 2001 to 2011 and that by the time she left, her sister and brother-in-law, Kamikazi had come from Canada and were also living in their home. The accused also considered Lorreta as her own daughter given that her biological parents were deceased. That the accused ensured that Lorreta had everything she needed for school and took her to hospital when she fell sick. That by 2012 she was at university and would come back to their home for holidays. That one evening the accused heard a door open and when she checked, she saw Lorreta go down the stairs. She was dressed in skimpy shorts and a see-through blouse. After a while, the accused also went downstairs where she found Lorreta’s cousin blaming her for dressing inappropriately, especially before Nsenga. It is the accused’s evidence that Lorreta’s response was, “He doesn’t mind”. That this disturbed her cousin and the cousin slapped her. That the accused was equally in shock that Lorreta could give an answer like that. That from that point, Lorreta’s attitude towards the accused changed. That she would just look at her and walk away whenever the accused talked to her and when asked to do something she would either slam the door or go and complain to the girls at home.
[25] In her further evidence, the accused said that when Lorreta left her phone on the table, a text message (“SMS”) from her husband (Nsenga) came through. It read, “I don’t hate you. I am just a little bit tired. I love you”. That in her wisdom, the accused did not think it was a problem to pick up Lorreta’s phone and without her permission read the message. She later talked to Kamikazi who had already found a house, to take Lorreta, and in Kamikazi’s presence, asked Lorreta to move out. Further, the accused also talked to Nsenga about it, who just kept quiet. The accused did not want Lorreta close to her children and also confronted Nsenga about it who again just kept quiet. She confirmed that sometime in 2012, when Lorreta had come on vacation and visited their home, the accused confronted her and Nsenga. She asked the children to go to the kitchen then told Lorreta, in the presence of Nsenga, that she wasn’t comfortable with her coming to their home. With regard to the issuance of threats to her husband and Lorreta as was intimated in Lorreta’s testimony, the accused simply answered that “she lied.”
[26]That on the morning of the day of the accident, Alex, the shamba boy had asked for his salary to travel to the village to bury his sister. That when the accused returned from town at about 3.45 to 4.00 pm she found Nsenga having a late lunch and asked for the shamba boy’s money which she passed on immediately to the shamba boy and he left. That the accused had later joined Nsenga in the living room where they talked about visiting their daughter in school in Kenya and also suggested to him that he could go together with Bisangwa whose daughter had also joined the same school. She then informed Nsenga that she was leaving for town to attend some meetings. While at the meetings she took some milk shake, water and biscuits before returning home. That all this time she had not communicated with Nsenga. While at the gate, the accused pressed the bell expecting one of the girls to open for her since the shamba boy was not present. She did not expect Nsenga to be around at that time. That he used to go out without telling her.
[27]She stated that when she finally saw the gate moving she returned to the car, sat with her left leg inside and as she was putting her right leg into the car and at the same time closing the door, the car jerked off! That while at the gate she had left the lights on and the engine running. That since the car had taken off so fast she reachedfor the steering wheel, fighting to take the car on her right side where she did not expect to find anybody. That she was in panic and could not tell how she got in or how she stopped.
[28]When the accused came out of the car she ran towards the house while calling Nsenga’s name. But she heard somebody groaning in a hoarse voice from behind and thought she had knocked one of the girls. She then returned and found Nsenga lying on the ground. Eventually the accused called JessicaNamwanjje DW4 the maid and Ouma Richard PW12, the guard from the neighbourhood, to come and assist her to put Nsenga in the vehicle. That the accused kept apologizing to Nsenga as she drove him to Paragon Hospital who in turn said it was okay. At Paragon Hospital the accused noticed Nsenga’s broken leg when she was removing his phone from the trouser pocket.
[29] Back at home, the accused’s in-laws never spoke to her. At some point her father -in-law came to her room with some of his sons and daughters and accused her of not visiting them when he and his wife were sick. Her sister Chantal told her to ask for forgiveness and indeed the father-in-law, DonatKananura, forgave her. That even the sisters-in-law forgave her, and just like the father-in-law, they announced it in church during Nsenga’s requiem mass. But to her surprise, after the burial of Nsenga, the accused started receiving death threats and sought police protection. She was kept in police cells at a police facility in Kireka until formerly charged in court. During this time, the accused had also lodged a caveat on the application for letters of administration in respect of Nsenga’s estate by Nsenga’s father, Donat Kananura. She believes this act angered her in-laws who then pushed for her prosecution.
[30] It was the accused’s evidence that communication between her and Nsenga had not broken down. If she was around she would serve him with food and they eat together. That they shared the same bedroom only that Nsenga would sleep in the guest room if he came home drunk. The evidence of the accused person is generally to the effect that this was an accident. She denied having intended to kill the husband. That she was only pinned by the family because of the estate (property) of her husband which was worth 50 billion Uganda Shillings. That she loved her husband and they were on good terms.
[31] DW2Musana John Geofreyis a Senior Commissioner of Police designated as the Deputy Director of CID in charge of criminal investigations. He testified that on the 11th of January 2013 at 12:45p.m. he received a call from the OC CID Jinja road police station informing him that the previous night one Juvenal Nsenga had been knocked by a motor vehicle which was driven by his wife. That upon receiving that information he instructed Detective Assistant Commissioner of police Okalany William who heads the department of homicide investigations at CID headquarters to proceed to the scene and guide the investigations. He also informed court that he later took over the matter as the principal supervisor and lead investigator in this case. That as such, on the 23rd of January 2013, DW2 Musana, together with a team of engineers from the inspectorate of motor vehicles, mechanical engineers from the Uganda police, the Scenes of Crime Officer (SOCO), Detective Sergeant Munaku and Andrew Mubiru from the government analytical laboratory reconstructed the scene of crime. That this was also in the presence of the accused who had been asked by the police to drive the vehicle through the stages she had taken on the fateful night.
[32] DW2 also re-interviewed Namwanje Jessica the accused’s maid, the neighbour’s Shamba boy called Okurut and security guard Richard Ouma at the scene who narrated what they had seen immediately after the incident. It was his evidence that Richard Ouma narrated that at about 8:30 Pm on the 10th of January 2013 he heard a motor vehicle stop. That shortly thereafter he heard a loud bang then after some time he and the Shamba boy saw the accused person running to them for help while screaming. That they assisted lifting the deceased into the vehicle. He further said that Namwanje Jessica told them that she heard the bell ring twice but remained in her bed room thinking that her fellow maid was going to open the gate. That shortly thereafter she responded to the accused’s screams and on coming out found Nsenga lying behind the motor vehicle with serious injuries. That the team also picked interest in the greenish striation marks which were on the left side (near side) of the bumper of the vehicle.
[33] That on further examination of the vehicle they saw stains of what was suspected to be blood on the back seat and on the right back tyre. DW2 Musana requested for and got a team of engineers from the department of Civil and Environmental Engineering in Makerere University headed by Prof. Mwakali to examine the bent bolt at the gate. That a number of demonstrations were done with the motor vehicle at the gate from different angles and positions. That during the whole reconstruction process which included speed trials and acceleration of the vehicle at the scene DW2 Musana instructed the SOCO to take photographs and also video record the whole process. That he later received reports from the various experts commissioned. The one from the Inspector of vehicles concluded that the vehicle was fit for road use while that from the government analytical laboratory indicated that all the blood samples taken from the various spots belonged to Nsenga. The government analytical laboratory also concluded that the paint which was extracted from the gate was of the same component material with what was got from the striation marks on the motor vehicle.
[34] That he also got a report from the Director of Face Technologies that the accused had a valid permit which she had acquired in 2012 and was to expire in 2015. That DW2, according to the findings in his analysis, concluded that the motor vehicle in question knocked the deceased. That through the demonstrations that were carried out at the gate, those who were behind the gate at that point couldn’t see what was right behind it. That at a certain point where the striation marks match both at the gate and at the bumper of the motor vehicle, the vertical bolts were disengaged and that if they were engaged they wouldn’t move.DW2 also assembled and analyzed all the evidence and the file was submitted to DPP for perusal and legal advice but with the recommendation that the suspect be charged with man slaughter and not murder. That when accused was asked if she could recall whether by the time she got out of the vehicle the gear lever was engaged into drive or not, and whether the foot brake was disengaged, she could not recall.
[35] DW2Musana also stated that in his own analysis along with the team was that the accused had not taken due care to know about the safety of the vehicle at that time and they concluded that there was carelessness and negligence on the accused’s part which as a result could have caused the vehicle to take her by surprise by not recalling the exact position she had left the hand brake as well as the foot brake. That the team had initially recommended that the suspect be charged with ‘causing death by rush and negligent act’but the DPP returned the file with instructions to charge her with murder. The accused was also examined by a police surgeon and she was found to be normal and of a sound mind.
[36] It was DW2’s evidence that the first information to police in this case was given by Paragon Hospital and not family members of the deceased. He confirmed to court that he interviewed PW3 Donat Kananura but did not tell him about any confession by the accused person in respect of this crime. He also said that although they were guarding the scene of crime (home) where the accused was still staying, when the accused said she was being threatened by her in-laws the police made arrangements for her to stay under protection in a police facility at Kireka. DW2 Musana also talked to accused’s father -in-lawDonatKananura, Innocent Bisangwa, Moses Kananura and Joseph Kananura about the accused’s fears but they said they were not aware of those threats.
[37] In cross examination Musana DW2 confirmed that the accused was still being treated as a suspect while kept under police protection in a police cell for females from 2nd February to around 5th July 2013. When further grilled by the prosecution, Mr. Musana Geofrey admitted that although the DPP had severally written ordering the police to charge the suspect with murder, the police replied suggesting that due to some technical issues in the evidence they would recommend another offence other than murder. That they also sought advice on the matter from the Attorney General. The witness clarified that by doing so, the police was not taking a decision to disagree with the DPP’s instruction but they only wanted to iron out what he called ‘some technical issues’ and that is why they filed for judicial review in the High Court. With further grilling, DW2 Musana conceded that the police had no choice but to comply with the instruction of the DPP and consequently the suspect was charged with murder. In re-examination, Musana stated that their communication to the DPP was regarding the lack of evidence to prove the ingredient of malice aforethought in a murder charge which was their main disagreement with the Principal State Attorney.
[38]DW3 Joseph Nsubuga is an operations manager with Uganda Funeral Services. He testified that his company conducted funeral arrangements including videography and photography for the late Nsenga. Joseph Nsubuga screened the recording of the funeral (DE8) especially that part where Nsenga’s sisters forgave the accused during their speech in church on 14th January 2013. In the same footage, PW3 Donat Kananura speaking on behalf of the Kananura family also forgave the accused and said that nobody should judge her apart from God because they were only the two of them when it happened.
[39]DW4Namwanje Jessica was working as a maid at the accused’s home from December 2012 to April 2013. She stated that on the 10th of January 2013 between 8:30 pm and 9:30 pm while sleeping she heard someone crying and calling for help at her window. That she recognized the voice as that of the accused who was calling her to assist and take Daddy Jermaine (Nsenga) to hospital. That she went out and found Nsenga in a lot of pain and bleeding. That she called the neighbours who assisted them to lift and put Nsenga into the car. That Nsenga was mourning in pain while the accused kept saying to him “Am sorry darling.”She also said that for the time she was in their home, she never witnessed any fights or quarrels between the couple. In cross-examination she said that Nsenga had spent 4 days without going out although he used to go out in the evenings.
[40] DW5Chantal KarungiIsan elder sister to the accused and lives in Kigali, Rwanda. That on hearing about the death of Nsenga, she came to Uganda the next day. She confirmed to court that while at Nsenga’s home she took part in a meeting called by Donat Kananura PW3 and attended by the accused, Mrs. AngellaKayihuraand Joseph Kananura among others. That during the meeting, Donat Kananura started complaining about the accused and blaming her for not going to see them when they were sick and admitted in hospital. That the accused tried to relate her version of the story where upon Chantal told her to ask for forgiveness from her father-in-law, DonatKananura. That the accused asked for forgiveness for not visiting her in-laws in hospital where upon Donat Kananura forgave her. She was not cross-examined and her evidence remained standing.
Analysis of Witnesses’ Testimonies/ Evidence
[41]On the whole, although PW2, PW3, PW4 and PW5 were blood relatives with the deceased, in my view this did not in any way bolster or embellish their testimonies. Contrary to the defence belief, their evidence was credible and reliable. They were consistent and truthful. They knew a lot about the couple, some having lived in the home of Nsenga with both accused and deceased for a number of years. They were confident and their evidence withstood the cross examination by the defence. PW6 also was equally a truthful witness. PW5 was very close to the deceased. He knew some of his secrets including the marital problems.
[42]PW2 Innocent Bisangwa was not cross-examined on the most crucial aspects of the damning evidence which he adduced. Where evidence is not challenged in cross-examination, it must be admitted as true and this refers to cross-examination on evidence in chief. The purpose of cross examination is to test the veracity of the witness on his / her evidence in chief. Indeed I find cross-examination to be the most effective toolever invented by man to establish the truth in court from the witness testimonies. It was held in Kabengevs Uganda UCA Cr App. No. 19 of 1977 (Unreported), and James Sowoabm & Anor vs Uganda (SC) Cr App No. 5 of 1990 (Unreported) by the then Uganda Court of Appeal and the Supreme Court respectively, that:
“Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross – examination it must follow that he believed that the testimony given could not be disputed at all therefore, an omission or neglect to challenge the evidence-in–chief on a material or essential point by cross- examination would lead to the inference that the evidence is accepted subject to its being assailed as inherently incredible.”
See also Eladam Enterprises Ltd vs. SGS (U) Ltd & Ors. Civil App. No. 05 of 205, reported in [2007] HCB Vol 1 and Sakaar on Evidence Vol. 2, 14t Edition, 1993 by Sudipto Sarkar & V.R Manohar Pg. 2006 -2007.
[43]Further, the defence had particularly submitted that PW3 Donat Kananura was “a schemer, untruthful and un credible” and that his evidence should be rejected. A closer scrutiny of his testimony reveals that he forgave the accused for chasing away his children from Nsenga’s home, and for not coming to see him and his wife in hospital when they were sick, but not for murdering Nsenga. This became very clear during cross - examination. The accused’s testimony, as well as that of her sister,Chantal (DW4), corroborate this version. Be that as it may, Donat Kananura did not appear to the court as a person who was out to tell lies deliberately. What I made out of his testimony regarding this particular aspect was that his mind was not on the same page as that of the accused. He seemed to think that the apology was in respect of the accused’s conduct towards her in-laws, and Nsenga as well as her action of killing Nsenga.
[44]This reasoning is fortified with his testimony when he said during the meeting that “have you seen what Jackie has done? I talked to her and she never listened. Jackie has killed my son and all she did showed that she would kill him”and immediately after which Chantal (DW5), told Jackie (accused) to kneel down and ask for forgiveness from Mzee, which she did. PW3 Mzee Donat Kananura forgave her. So, the forgiveness was not in respect of the accused killing Nsenga as Donat Kananura may have thought.
[45]The other thing is that some of the properties which may actually appear to be part of the estate of the late Nsenga were registered in the names of a company called “Katraco” in which Donat Kananura (PW3) and Nsenga were some of the shareholders. Donat Kananura had even paid for the renewal of the lease of the Nsenga matrimonial home. These facts were confirmed by the accused herself during cross - examination.
[46] Like I have already stated before, matters of Nsenga’s property/ estate will be dealt with by the Family Court. But for purposes of PW3’s testimony in this case, and in light of the facts on record, it would be unfair by the defence to refer to DonatKananura as a “Schemer.” On the whole, he was a credible and truthful witness whose evidence this court will rely on.
[47]The defence has urged the court to find the evidence of PW3, PW4, PW5 (accused’s in-laws) and PW6 not worth any consideration because they were motivated by the struggle for property (Nsenga’s estate) to prosecute the accused. Further, that if the accused had not lodged a caveat on the application for letters of administration (AC No. 189 of 2013) in respect of Nsenga’s estate by his father DonatKananura (PW3), she would not have been prosecuted. Indeed defence counsel Mr. Nsubuga Mubiru had categorically submitted that this trial was about property and nothing else. DW2 Godfrey Musana stated that the police force is mandated to investigate all crimes, whether reported or not. According to DW2 Godfrey Musana’s further evidence, in this case the first information was entered on 11/01/2013 by the O.C Traffic as a ‘fatal accident’ before the file being forwarded to O.C CID of Jinja Road Police Station for investigation on whether there was a crime committed by the accused.
[48]It should be remembered that the incident had just happened on the night of 10/01/2013. PW4 Joseph Kananura said that when they went to pick Nsenga’s body, the Paragon Hospital management refused to release it to the family until the police authorized them to do so. Thistallies with what PW9 Detective AIP Nabalanyi Christine said that the police had been called in that morning by the management of Paragon Hospital. Joseph Kananura had also testified that none of the family members ever reported the matter to police. Further, that it was the police that requested them to make statements immediately after returning from the burial in the village. For instance, Donat Kananura PW3 made his statement (DE1) on 6/02/2013 while that of Ndizeye Moses Kananura (DE2) was made on 20/01/2013. This evidence was not contradicted by the defence. According to the accused’s own testimony the caveat to PW3’s application for letters of administration was lodged by M/S Kabega, Tumusiime & Co. Advocates after an advert for the said letters appeared in the ‘Daily Monitor’ Newspaper of Friday, 29th March, 2013 (DE5).
[49]It now becomes apparent that this case is a result of the State (the Government of the Republic of Uganda[See Art.250(4)Constitution. Also see Uganda vs. John Texas Tibesigwa Crim. M/A No. 2 of 2001- arising from Mbarara 00-CR-0-0259-2001 before Kibuuka-Musoke, J]) carrying out its duty of preventing and prosecuting crimes by acting through the police force and the Directorate of Public Prosecutions (DPP), which organs work independently of each other. For the DPP is mandated by the Constitution (See Art.120(3)(a)) to direct the police to investigate any information of a criminal nature and report to him or her expeditiously. Perhaps I should say a little bit more given the background of this case as reflected on the record. Only the DPP, and nobody else, enjoys the powers to decide what the charges in each file forwarded to him or her should be. Although the police may advise on the possible charges while forwarding the police file to the DPP, as explained by DW2 Godfrey Musana to court and in his various letters to the DPP (DE6), such opinion is merely advisory and not binding on the DPP See Art.120(6), Constitution. Unless invited as witnesses or amicus curiae (friend of the court), the role of the police generally ends at the point the file is forwarded to the DPP.
[50]The Kananura family members were called in as mere State witnesses. There is no evidence on record whatsoever suggesting that the accused’s in-laws (the Kananuras) initiated the charges or pushed for the prosecution herein. In fact they have no powers to stop or discontinue this case, even if it were in exchange for the removal of the caveat by the accused as intimated by the defence. That is a function exercised by the DPP exclusively.See Arts.120 (3) (d) and (4) (b),Constitution. From this evidence, it would be totally wrong for the defence to take the view that this case is about property. This is not only misconceived but also misleading and diversionary. What appears to be a struggle for Nsenga’s property started much later after the death of Nsenga, when a caveat was lodged against the application for letters of administration as indicated above. Even the accused’s in-laws who gave evidence against her never said anything regarding property; they stuck to their evidence as recorded in the police statements they offered way before the alleged fight for property started. Actually this aspect of the struggle for property only came up during the defence case. It never even featured in cross-examination of the prosecution witnesses.
[51] The statements (DE1 & DE2) sought to be tendered by the defence counsel indeed corroborated the testimonies of PW3 and PW4 respectively. Their testimonies in court are substantially the same as the contents of their said statements which were made to the police who are the authority legally competent to investigate the facts of the murder circumstances. Section 156 of the Evidence Act is instructive. It states:
“In order to corroborate the testimony of a witness, any former statement made by the witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, maybe proved”.
[52]Meanwhile, the State (police) on its own picked interest in this case immediately Nsenga passed on. I wish to categorically state that Nsenga’s property is not what this court is dealing with in this case. This is a criminal trial for the accused regarding her actions of driving and knocking down Nsenga. The court is concerned with those events that unfolded at the gate on 10th January, 2013, with the main question to be determined being: whether the accused knocked and killed Nsenga intentionally or accidentally. Therefore, as to whether the accused knowingly or unknowingly executed powers of attorney before Advocate Sam Bitangaro authorizing Donat Kananura to take out letters of administration for Nsenga’s estate is not a question for this court to answer but for the Family Court to determine. As such, I find no evidence to support the submission that the accused’s in-laws were induced to prosecute her because of the struggle for property or because she had lodged a caveat against her father in-law’s application for letters of administration.
[53] In the same vein, the defence case was also based on the theory that the accused’s in-laws had publically forgiven her but due to the struggle for property, especially when the accused lodged a caveat on Donat Kananura’s application for letters of administration, the in-laws decided to press for her prosecution. This is clear from the defence’s line of cross-examination and the kind of evidence they adduced. Indeed considering the evidence of Donat Kananura and the video footage (DE8) presented by DW3 Nsubuga of Uganda Funeral Services as well as the prosecution’s submissions on the matter, there is no doubt that the accused’s in-laws forgave her. The video footage screened in court showed Nsenga’s sisters hugging and embracing the accused after forgiving her in their speech during the church service. Speaking on behalf of Nsenga’s family, the recording shows Donat Kananura forgiving the accused and “said no one should judge her apart from God”. As stated during the prosecution’s final submissions, the Kananura family still maintains their forgiveness.
[54] It should however be remembered that this is a case for the State and not the Kananura family. Most modern criminal justice systems focus on a crime, a lawbreaker and a punishment.As such, neither individual nor family forgiveness will diminish or erase the accused’s criminal responsibility.This is not uncommon even in other jurisdictions. For example, in the famous case of Mehmet Ali A
