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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CRIMINAL APPEAL NO. 0030 OF 2014

(Coram: Katureebe; CJ, Tumwesigye; Arach-Amoko; Mwangusya;
10         Tibatemwa-Ekirikubinza; JJ.S.C)

Between

                                1. KATO JOHN KYAMBADDE                                 APPELLANTS

2. BUKEERA GEOFREY

And

                15      UGANDA                 RESPONDENT

(Appealfrom the decision of the Court of Appeal of Uganda at Kampala before
Nshirnije, Buteera and Kakuru JJA) on the 1^st day of July 2014 in Criminal
Appeal No.0190 of2009)

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JUDGMENT OF COURT

This is a second appeal from the decision of the Court Appeal dismissing the
appellants' appeal against their conviction for murder by the High Court
sitting at Mubende.

The background to the case leading to the conviction of the appellants is as
25 follows:-

The first appellant, Kato John Kyambadde and the deceased, Senkubuge
Hillary were brothers. Upon the death of their father the deceased obtained
Letters of Administration of the estate which included a piece of land. The
first appellant wanted to sell the piece of land but the deceased objected.

               30        The appellant is alleged to have made death threats against the deceased as
                     a result of the wrangle.

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   5        On the 24th April 2008 the deceased was seen going to his customary land
(kibanja) by Namuli Margaret (PWl), Sentalo Peter (PW2) and Mawanda
Charles (PW4) at different times. Then at 1:00 p.m. PWI saw the appellants
with a third person going in the direction of the deceased's Kibanja. She
saw them again at 2:00p.m. coming back from the deceased's banana

          10              plantation where Mayambala Kityo (PW3) claims to have seen them dragging
the deceased. PW3 had branched at the home of the deceased for
assistance as he had got a flat bicycle tyre. He heard voices behind the
deceased's house and when he went to check what was happening he saw
the two appellants, dragging the deceased towards a coffee tree. The first

          15              appellant was armed with a spear. Later the body of the deceased was
found tied by the neck on a coffee tree. He had been badly beaten and
stabbed in the neck. Both appellants did not attend his burial.

At the trial both appellants denied having killed the deceased.

In his defence the first appellant advanced a defence of alibi. He testified

          20               that on 24th April 2008 at about 2:00p.m. he had a patient whom he took to
hospital. He returned home at about 3:00 p.m. and stayed home until
6:00p.m. when one of his sisters called him to inform him that his brother
was dead. He denied having gone to the home of the deceased on that day
and neither had he previously threatened to kill him. He explained that he

          25            had not attended the burial of the deceased out of fear because he was being
mentioned as one of the killers.

The second appellant testified that he was in a bar at Kayembe when he
heard of the deceased's death. He went to the scene where he saw the body
of the deceased. He explained that he did not bury the deceased because he

30 had been buried far from his home and he did not have money for transport.

He was arrested 4 - 5 days after the incident and charged with an offence he
never committed.

At the conclusion of the trial the two appellants were convicted by the High
Court and sentenced to seventeen years imprisonment. They appealed to

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         5     the Court of Appeal which dismissed their appeal and being dissatisfied with
the judgment of the Court of Appeal, appealed to this Court with a prayer to
allow the appeal, quash the conviction and set aside the sentence.

The memorandum of appeal filed by the appellants raises only one ground of
appeal. This is that the Learned Justices of Appeal erred in Law when they
 failed to adequately re-evaluate the evidence on record as regards
identification thereby coming to an erroneous decision.

The appellants were represented by Mr. Henry Kunya on state brief while
Mr. Brian Kalinaki, Principal State Attorney, represented the respondent.
Both Counsel filed written submissions which they adopted at the hearing.

      15   Mr. Henry Kunya submitted that the Court of Appeal as a first appellate
Court failed in its duty to adequately subject the evidence on record to a
fresh re-evaluation and invited this Court to re-evaluate the evidence on
record.

He submitted that he was fully aware that the Supreme Court on a second

      20 appeal can only re evaluate evidence and interfere with the concurrent
findings of the lower Courts where it is apparent that the Court of Appeal
has failed in its duty or in circumstances where the findings are not
supported by cogent evidence.

On the evidence adduced by the prosecution, he submitted that it was

      25        circumstantial because none of the six prosecution witnesses actually saw
the appellants kill the deceased. He added that there were other existing
circumstances which would weaken or destroy the inference. He referred
Court to the evidence of PWI who testified that he saw the appellants leave
at 2:00p.m. and yet the alarms were made at 5 - 6 p.m. which means that

      30        other persons could have killed the deceased during the interval. These
persons included the deceased's wife who was the first person to raise an
alarm and PW3 who claimed to have witnessed an incident where the
deceased was being dragged to a coffee tree but did not report the incident
to anyone.

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         5    He also submitted that the prosecution evidence was full of inconsistencies
especially regarding the time when some of the prosecution witnesses claim
to have met the appellants and a third person who was not identified. He
drew Court's attention to the evidence of PW 1 who testified that she saw the
appellants at 1 :00 p.m. passing through the boundary going towards the

      10 deceased's Kibanja and PW2 who testified that he had seen the appellants
following the deceased at about 9:00p.m. Furthermore PW3 testified that
he saw the appellants dragging the deceased behind his house between 2-3
pm when PW 1 had testified that she saw the appellants going away from the
deceased's Kibanja at 2:00p.m. He also urged this Court to draw an adverse

      15        in reference to the fact that the prosecution did not call the wife of the
deceased who had discovered the body and raised an alarm.

In response Counsel for the respondent submitted that the Court of Appeal
had clearly and exhaustively re-evaluated the evidence adduced during trial
and had no reason to interfere with findings of the trial Court. He prayed

      20        this Court not to interfere with decision of the Court of Appeal arising out of
a thorough re-evaluation of the evidence.

On the evidence adduced by the prosecution he submitted that the
appellants had been properly identified by Mayambala Kityo (PW3) who
saw them pulling the deceased from a distance of 60 meters. He knew the

      25       appellants very well and the incident was in broad daylight. There was
evidence that the two appellants had been seen going to the deceased's
plantation and coming out. He also urged Court to take into account the
fact that although the first appellant and deceased were brothers he never
attended his burial.

      30       We will begin with the appellant's assertion that the Court of Appeal failed to
adequately re-evaluate the evidence on record as regards identification
thereby coming to an erroneous decision. The duty of a first appellate
Court and that of a second appellate Court, which this Court is, has been
spelt out in a number of decisions of this Court including Bogere Moses &

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         5    Another vs Uganda Criminal Appeal No. 97 where this Court had this to
say:

"What causes concern to us about the judgment, however, is that
it is not apparent that the Court of Appeal subjected the evidence
as a whole to scrutiny as it ought to have done. And in particular

       10      it is not indicated anywhere in the judgment that the material
issues raised in the appeal received the Court's due consideration.
While we would not attempt to prescribe any format in which a
judgment of the Court should be written we think that where a
material issue of objection is raised on appeal, the appellant is

       15      entitled to receive an adjudication on such issue from the
appellate Court even if the adjudication is handed out in summary
form. ... In our recent decision in Kifamunte Henry vs Uganda we
reiterated that it was the duty of the first appellate Court to rehear
the case on appeal by reconsidering all the materials which were

       20     before the trial Court and make up its own mind. Needless to say
that failure by a first appellate Court to evaluate the material
evidence as a whole constitutes an error in Law." (Underlining for
emphasis)

In the judgment of Kifamunte Henry vs Uganda (Supreme Court Criminal
25 Appeal No. 10 of 1997 this Court held:-

"We have not been persuaded that the learned judges erred in Law
or in mixed fact and law to justify our intervention.

Once it has been established that there was some competent
evidence to support a finding of fact, it is not open on a second

      30     appeal to go into the sufficiency of that evidence or
reasonableness of the finding. Even if a Court of first instance has
wrongly directed itself on a point and the first appellate Court has
wrongly held that the trial Court correctly directed itself, yet, if
the Court of first appeal has correctly directed itself on the point,

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         5          the second appellate Court cannot take a different view R
Mohamed all Hasham vs R (1941) 8 EACA 93.

On second appeal the Court of Appeal is precluded from
questioning the findings of fact of the trial Court, provided that
there was evidence to support those findings, though it may think

       10        it possible, or even probably that it would not have itself come to
the same conclusion; it can only interfere where it considers that
there was no evidence to support the finding of fact, this being a
question of law. Re vs Hassan Bin Said (1942) 9 EACA 62"
(underlining for emphasis).

      15 The two authorities bring out two elements that would help a second
appellate Court determine the issue as to whether or not a first appellate
Court has met the requirement to re-evaluate the evidence and come to its
own conclusion. The first element is whether as a matter of fact the Court
did a re-evaluation. Out of this element an issue as to whether the re-

      20        evaluation was adequate arises as pointed out in the memorandum of
appeal. The second element is whether upon a re-evaluation of the evidence
there was evidence to support the concurrent finding that the two appellants
are the ones who had killed the deceased. Counsel's contention being that
the Court of Appeal did not adequately re-evaluate the evidence regarding

        identification.

On the first consideration our perusal of the record shows that seven
grounds of appeal were raised. All the grounds were argued by the
appellants' Counsel and all of them were adjudicated upon by the Court of
Appeal. Counsel for the appellants did not demonstrate how the Court of

      30       Appeal had failed to re-evaluate the evidence and it is not enough for
appellant/ appellants to make an allegation that Court failed in its duty
without demonstrating the failure. We shall consider in detail the re-
evaluation by the Court of Appeal especially the evidence of identification in
order to determine the adequacy of the evaluation.

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         5   As rightly pointed out by both Counsel the case against the appellants was
mainly dependant on circumstantial evidence. There are many decided
cases which set out the principles which Courts apply in deciding cases
based on circumstantial evidence. These were set out in the case of Janet
Mureeba and two others vs Uganda where this Court stated as follows:

      10         "Generally in a criminal case, for circumstantial evidence to
sustain a conviction, the circumstantial evidence must point
irresistibly to the guilt of the accused. In R vs Kipkering Arap
Koske and Another (1949) 16 EACA. 135 it was stated that in
order to justify, on circumstantial evidence, the inference of guilt,

      15        the inculpatory the facts must be incompatible with the innocence
of the accused and incapable of explanation upon any other
hypothesis than that of guilt. That statement of law was approved
by the EA Court of Appeal in Simon Musoke Vs R (1958) EA 715
[and see Bogere Charles case (supra) .... "

      20        In the instant case, the learned trial judge and the Court of Appeal
evaluated the circumstantial evidence and applied the tests set out in the
above decision.

In order to determine whether upon re-evaluation there was evidence to
support the concurrent finding that the two appellants were the ones who
25 killed the deceased we shall set out the evidence relied on by the Courts
below.

The first piece of evidence relied on by the Courts below to convict the
appellants is that there was a grudge between the 1 st appellant and the
deceased resulting from a dispute over land inherited from their father.

      30        According to Section8 (3) of the Penal Code Act, the motive by which a
person is induced to do or omit to do an act, or to form an intention, is
immaterial so far as regards criminal responsibility. However, in the case of
Godfrey Tinkamanyire and Another Versus Uganda Supreme Court
Criminal Appeal No. 5 of 1988 it was observed that while motive was

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         5   irrelevant in a criminal prosecution, it was always useful since a person in
his normal faculties would not commit a crime without a reason or motive.
The existence of a motive made it more likely that an accused person did in
fact commit the offence charged. It is one of the factors that may be taken
into account.

       10 The second piece of evidence to be taken into account is that following the
above misunderstanding the first appellant threatened to kill the deceased
because he was standing in his way to make money. The evidence of the
threats was given by Charles Mwanda (PW4) who was Chairman LCI
Kitigoma. According to this witness the deceased used to report the threats

       15 to his life to him and he in return reported them to the Police who never did
anything. The value to be attached to evidence of a prior threat was
discussed in the case of Waihi and Another vs Uganda [1968] EA 278 at
page 280 where the East African Court of Appeal stated as under:-

"Evidence of a prior threat or of an announced intention to kill is

      20       always admissible evidence against a person accused of murder,
but its probative value varies greatly and may be very small or
even amount to nothing. Regard must be had to the manner in
which a threat is uttered, whether it is spoken bitterly or
impulsively in sudden anger or jokingly and reason for the threat,

      25       if given, and the length of time between the threat and the killing
are also material. Being admissible and being evidence tending to
connect the accused person with the offence charged, a prior
threat is, we think capable of corroborating a confession .... "

      30        In the instant case the deceased took the threats seriously and reported to
the L.C.I and Police, who unfortunately did not take any action. The reason
for the threats was also known because of the motive already discussed.
Therefore when the case against the appellants is considered, the threats
cannot be ignored and like in the case of Waihi v. Uganda (Supra) where a

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         5    prior threat was used to corroborate a confession, the threats in this case
may be used to corroborate the other evidence tending to link the appellants
with offence for which they were convicted.

It should be observed that the evidence of motive and prior threat concerns
only the first appellant. However, if the evidence that on 23.04.2008 the

      10   two appellants were seen together in a bar and that on 24.04.2008 they
were seen together with a third person dragging the deceased in his
plantation is to be believed, then the principle of common intention to which
we shall revert in this judgment may be applied.

The events of 24.04.2008 are narrated by four witnesses whose evidence

      15   was attacked by Counsel for the appellants as being full of contradictions
and inconsistencies. The first of these witnesses is Sentalo Peter (PW2) who
saw the deceased heading to his banana plantation at 8:00t.m. and the first
appellant following him on his motorcycle. Namuli Margaret (PWl) who saw
the deceased going to his plantation at 11 :00 a.m. and saw the appellants

      20 and a third person going to the deceased's plantation at 1 :00 p.m. and
coming out at 2:00 p.m. Then Mayambala Kityo (PW3) who branched at the
deceased's home after getting a bicycle tyre puncture. He heard persons
talking behind the deceased's house between 2:00 p.m. - 3:00 p.m. He went
to check what was happening. He heard a voice of someone saying 'cut'. He

      25        saw three people whom he identified as the two appellants. The first
appellant was armed with a spear. The deceased was dragged towards a
coffee tree and that was when the witness got away feared that he would be
seen. When the body was found, two witnesses, namely Namuli Margaret
(PW 1) and Mawanda Charles who viewed the body found that the deceased

      30        had been badly beaten and had been stabbed on the neck. He had been tied
on a coffee tree and in a sitting position.

The inference to be drawn from PW3's testimony is that the three persons
who were seen in broad day light dragging the deceased are the ones who
had beaten him and stabbed him with a spear which the first appellant was

      seen holding. We find the suggestion that either the deceased's wife who
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         5   had discovered the body or PW3 who claimed to have seen the three
assailants but failed to report them to the authorities are the ones who had
killed the deceased farfetched.

Counsel submitted that the prosecution witnesses who claimed to have seen
the two appellants at the home of the deceased should not have been

       10 believed because they contradicted each other as to the time when they saw
him. We shall set out the evidence of the prosecution witnesses because we
see no contradiction in their testimony. They only saw the appellants at
different times.

According to PW2 he saw the deceased going to his Kibanja at 8:00 a.m. and

       15         saw the first appellant following him. PW4 also claimed to have seen the
deceased going to his plantation at 9:30 a.m. These encounters may be
relevant to the killing of the deceased because according to PW3 he saw his
assailants dragging him between 2:00 p.m. and 3:00 p.m.

The witnesses who claim to have seen the appellants at the time the

       20      deceased was killed are Namuli Margaret (PWl) who stated that she saw the
deceased going to his plantation at 11 :00 a.m. and saw the appellants and a
third person taking the same direction at 1 :00 p.m. She saw the appellants
going away at 2:00 p.m. On the other hand PW3 stated that he branched at
the deceased's home between 2:00 p.m. and 3:00 p.m. which is an

       25      indication that he is not certain of the exact time. He, therefore, cannot be
said to have contradicted a witness, who may also not be exact, when she
says that she saw the appellants going away at 2:00p.m.

The law of contradictions and inconsistencies is well settled.

Major contradictions and inconsistencies will usually result in the evidence of the

30 witnesses being rejected unless they are satisfactorily explained away.

Minor ones on the other hand will only lead to rejection of the evidence if
they point to deliberate untruthfulness (see Alfred Tajar Vs Uganda EACA
Dr. Appeal No. 167 of 1969 (unreported). We have explained what Counsel
described as grave inconsistencies relating to the time the appellants went

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   5      to the deceased's plantation. We consider it very minor and inconsequential
as far as the events leading to the death of the deceased are concerned.

The appellants' Counsel also complained about the failure of the prosecution
to call the wife of the deceased who discovered the body. The law regarding
the duty of the Director of Public Prosecutions to call material witnesses is

10         also well settled. In the case of Bukenya and others vs Uganda [1972] EA
549 the Court of Appeal for East Africa set the principle which has Since
been followed by our Courts as follows:

"it is well established that the Director has a discretion to decide
who are the material witness and whom to call but this needs to be

               15       qualified in three ways. First, there is duty on the Director to call
or make available all witnesses necessary to establish the truth,
even though their evidence may be inconsistent. Secondly, the
Court itself has not merely the right but the duty to call any
person whose evidence appears essential to the just decision of the

               20        case (Trial on indictments Decree, S.37). Thirdly while the
Director is not required to call a superfluity of witnesses if he calls
evidence which is barely adequate and it appears that there were
other witnesses available who were not called, the Court is
entitled, under the general law of evidence, to draw an inference

              25        that the evidence of those witnesses if called, would have been or
would have tended to be adverse to the prosecution case,"

In the first place we do not think that the wife of the deceased was such a
material witness that the failure by the prosecution to call her was fatal to
the prosecution case. The discovery of the body was never in issue. Secondly

30        we do not think that the prosecution deliberately intended to conceal the
evidence for Court to draw an adverse inference that the evidence was
unfavorable to the prosecution.

The other aspect of the case we wish to comment on is that two of the pieces
of evidence relied on to convict the appellants, notably, the motive and prior

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          5     threat concern only the first appellant. However, according to Ssonko
Edward (P.W.5) the two appellants were seen together in Sepi's bar on
22.04.2008 with another man whom he did not know. Then on 24.04.2008
the two appellants were seen entering the deceased's plantation together
with another person. The two were seen together dragging the deceased

        10   towards a coffee tree. The first appellant was armed with a spear. In terms of
section 20 of the Penal Code Act the three were acting in concert. Section 20
provides as follows:-

"Joint offenders in prosecution of common purpose

When two or more persons form a common intention to prosecute

       15        unlawful purpose in conjunction with one another, and in the
prosecution of such purpose an offence is committed of such
nature that its commission was a probable consequence of the
prosecution of that purpose, each of them is deemed to have
committed the offence"

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The doctrine of common intention is well defined in the case of No. 441
P.C. Kisegerwa and Anor Vs Uganda SCCA No.6 of 1978 as under:-

"In order to make the doctrine of common intention applicable it
must be shown that the accused had shared with the actual

      25        perpetrator of the crime a common intention to pursue a specific
unlawful purpose which led to the commission of the offence. If it
can be shown that the accused persons shared with one another a
common intention to pursue a specific unlawful purpose, and in
the prosecution of that unlawful purpose, an offence is committed,

      30       the doctrine of common intention would apply irrespective of
whether the offence committed was murder or manslaughter. It is
now settled that an unlawful common intention does not imply a
pre-arranged plan. See R vs Okute [1941] 8 EACA at p. 80.
Common intention may be inferred from the presence of the

      35              accused persons, their actions and the omission of any of them to

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   5              dissociate himself from the assault. See R. vs Tabulayenka (Supra)

In our view the doctrine of common intention is applicable in this case. The
first appellant was the one who had a reason to kill the deceased but the
second appellant was seen with the first appellant dragging the deceased in

10         his plantation. The first appellant was the one armed with a spear but the
second appellant did not dissociate himself from the actions of the first
appellant. In other words they were acting in concert and there is no way
their actions can be separated. That is the essence of the doctrine of
Common Intention.

15        The two appellants raised defences of alibi which were considered by both
Courts especially the Court of Appeal which made an exhaustive analysis of
the law regarding the defence of alibi and correctly applied it to the facts of
this case. In his defence the first appellant had stated that on 24. 04. 2008
he had taken a patient to Kiboga and was not at the scene of crime as

20        alleged by the prosecution. The second appellant stated that at the time he
is alleged to have killed the deceased he was in Sepi's bar at Kayembe in
Kigoma and not at the scene of crime as alleged by the prosecution.

In respect of the first appellant he was seen by various prosecution
witnesses at 7:00 a.m. and 11:00 a.m. and between 1.00 p.m. and 2:00 p.m.
25 when the deceased was killed. He had a motor cycle and the incident did not
take such a long time that it would prevent him from going about his other
errands before and after the killing of the deceased.

The same applies to the second appellant who, before or after the killing of
the deceased could have gone to have a drink in a nearby bar.

30        In conclusion, we hold that there was ample evidence to justify the
conviction of the appellants. The Court of Appeal was justified in upholding
the conviction and sentence against the appellants by the learned trial
judge. As a second appellate Court we find no reason for interfering with
the concurrent findings of the two Courts that the appellants were

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         5      responsible for the death of the deceased. The basis of this finding is the
strong circumstantial evidence as evaluated by the two Courts and as
analysed in this judgment.

Therefore we find no merit in this appeal. It is accordingly dismissed.
Dated this ... 15th.. day of  September 2017

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