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THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA
CRIMINAL APPEAL NO: 17 OF 2014

    8           (Appeal from the judgment of the Court of Appeal at Kampala, before Justice Remmy Kasule,

Solomy Bosa and Geoffrey Kiryabwire, JA, dated 27th June 2014).

                          MAGEZI GAD........................................................ APPELLANT  

VERSUS

UGANDA :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

CORAM: TUMWESIGYE; KISAAKYE; MWANGUSYA; OPIO-AWERI; MWONDHA;
J.J.S.C.

16

JUDGMENT OF THE COURT

Introduction

This is an appeal from the decision of the Court of Appeal which dismissed
an appeal against conviction and sentence by the High Court for the
appellant for murder contrary to Sections 188 and 189 of the Penal Code
Act Cap 120 amended.

Back ground of the case.

On the 28^th January 2008 at around 7:30pm, two strangers (the appellant

          24    and another person (now deceased), went to the home of a one Kabuzi
         Daudi (the deceased and victim) claiming to be his relatives who wanted to
         spend the night at his home.

They were welcomed by PW5 (Nshabirye), a granddaughter to the
deceased. The deceased failed to recognize the visitors but nevertheless
entertained them. After a while, the deceased left for the kitchen and the
appellant's colleague followed him with the excuse that he wanted to speak
to him. PW4 (daughter to the deceased) stayed chatting with the appellant.

                32      When Nshabirye (PW5) returned from the shop, she found the deceased

  dead in the kitchen. On seeing that the door to the main house was not
  open, she proceeded to inform her uncle Rubasa (PW3) about the death of

                                                 [1]

the deceased. PW3 went to the crime scene, forced open the door to the
main house and announced the death to PW4 and the appellant. Upon
hearing the sad news, the appellant got up, opened the main door and fled.

         8  Being at night, the appellant got lost in the village and was arrested under
suspicion of being a wrong character. The appellant was taken to the
chairman (PW8) who interrogated him and upon being satisfied about his
identity as Magezi s/o Sebbi of Kitojo, gave him direction to Kitojo Village.
The appellant was later arrested from his home in Rubare, Ntungamo District
and identified vide an identification parade at Kabale Police Station.

Dr. Mugabi Mathia (PW2) of Mporo Health Centre carried out a postmortem
examination on the deceased vide police form 48B and established that the

       16        deceased had two deep cuts on the head into the brain and it was
   extending to the right and left ear with the skull bones cut through. He
   concluded that the deceased died from hemorrhagic shock and the weapon
   used was a panga. The same Doctor also examined the appellant and found
  that he was normal and had a minor abrasion in the left palatial area. The
  appellant was consequently indicted together with his colleague for murder
  contrary to Sections 188 and 189 of the Penal Code Act in the High Court at
  Kabale. His colleague however died before the conclusion of the trial.

       24       At the trial, the prosecution led a total of 11 witnesses to prove the
    ingredients of murder.

The accused pleaded alibi in defense and claimed that he was in his village
all the while. He also stated that he was identified by a young girl (PW5)
only after being pointed at by a certain woman.

On the 20^th April 2009, the appellant was convicted for murder contrary to
Sections 188 and 189 of the Penal Code Act and sentenced to life
imprisonment.

      32        Being dissatisfied with the High Court decision, the appellant appealed to
the Court of Appeal vide Criminal Appeal No. 61 of 2009 against both
conviction and sentence on the following grounds:

(2)

1)   

That the learned trial judge erred in law and fact when he failed to
properly evaluate the evidence as a whole and consequently arrived at
a wrong decision.

8

2)   

That the learned trial judge erred in law and fact when he erroneously
concluded that, on the evidence on record, the appellant was correctly
identified and placed at the scene of crime and positively linked to the
offence charged.

3)   

That the leaned trial judge erred in law and fact when he concluded that
the chain of identification by the prosecution witnesses rendered the

     16                 appellant's alibi and issue of contradictions in the manner of dressing
by the accused person irrelevant.

4)   

That the learned trial judge erred in law and fact when he concluded
that common intention to commit the offence charged had been proved
against the appellant.

5) That the learned trial judge erred in law and fact when he sentenced the

     24                appellant to life imprisonment which was manifestly excessive in the
circumstances of this particular case.

On the 2yth of June 2014, the Court of Appeal dismissed all the grounds of
appeal and confirmed the decision of the High Court. The appellant
dissatisfied with the decision of the Court of Appeal, lodged this appeal on
the 6^th day of May, 2016.

The memorandum of appeal contained the following grounds:-

     32                1) The Honorable Justices of the Court of Appeal erred in law when they

failed to properly re-evaluate the evidence in this case and so reached
a wrong decision.

2)   

The Honorable Justices of the Court of Appeal erred in law when they
rejected the appellant's alibi and instead confirmed that he had been
placed at the scene of crime.

[3]

3)    

The Honorable Justice of the Court of Appeal erred in law when they
concurred with the High Court that common intention to commit the
offence had been proved against the appellant.

8

4)    

The Honorable Justices of the Court of Appeal erred in law when they
confirmed the sentence of the life imprisonment which was manifestly
excessive in the circumstances of the case.

The appellant thus prayed this honorable court to quash the conviction, set
aside the sentence of life imprisonment and in the alternative, reduce the
sentence of life imprisonment.

     16        Representation.

The appellant was represented by Senkezi Steven on state brief while the
respondent was represented by Betty Khisa, the Deputy DPP. Both counsel
made oral submissions.

Submissions of counsel.

Counsel for the appellant argued grounds 1, 2 and 3 together since they all
concern participation of the appellant in the crime.

Counsel argued that the learned Justices of the Court of Appeal did not
24 abide by their duty to properly re-evaluate the evidence which was lacking
in many areas which included:-

a)    

The appellant was identified vide an identification parade which was not
properly conducted.

b)   

That PW3 and PW4 in their testimonies as eye witnesses stated that on
the date in question when the offence was committed, it was their first
time to see the appellant and they next saw him in court.

c)    

That the conditions for identification were that, it was dark and the only

     32                       lighting was a candle in the main house.

He further contended that the Justices of the Court of Appeal erred when
they observed that the appellant spent close to two hours with PW4 and
PW5, and yet no evidence on record showed the time that the appellant
spent with the witnesses, especially PW5.

[4]

.r" .

Counsel concluded that there was no proper conditions for identification
and thus prayed this honorable court to quash conviction of the appellant.

In response to the above submissions, the Deputy DPP contended that

            8    evidence on record was properly re-evaluated by the Court of Appeal and
therefore saw no need for this honorable court to re-evaluate this evidence
again. She thus prayed court to dismiss these grounds.

COURT'S FINDINGS.

The duty of the Court of Appeal as a first appellate court is provided under
Rule 30 (1) of the Court of Appeal Rules as follows>

"On any appeal from a decision of the High Court acting in the exercise of
the original jurisdiction, the court may,'

       16         Reappraise the evidence and draw conclusion of fact".

The Supreme Court in the case of Kifamunte Henry VS Uganda, SCCA No.1 0
of 1997 held that it is the duty of the first appellate court to rehear the case
on appeal by reconsidering all the materials which were before the trial court
and make its own mind. Failure to do so amounts to an error of law; Also
see Bogere Moses and Another VS Uganda, Supreme Court, Criminal Appeal
No. 1 of 1997".

This being a second appeal, this court does not have the duty to re-

         24        evaluate evidence on record unless it has been shown that the first
appellate court did not re-evaluate the evidence on record. In Areet Sam VS
Uganda, Criminal Appeal No. 20 of 2005, the Supreme Court reiterated the
above duty in the following terms:-

"We also agree with counsel for the respondent that it is trite law that as a
second appellate court we are not expected to re-evaluate the evidence or
question the concurrent findings of facts by the High Court and Court of
Appeal. However, where it is shown that they did not evaluate or re-evaluate

         32        the evidence or where they are proved manifestly wrong on findings of fact,
this court is obliged to do so and to ensure that Justice is properly and truly
served”.

(5)

In dealing with the evidence of identification, alibi, common intention and
contradictions, the learned trial judge, in a very well reasoned judgment,
stated as follows-

       8    "If I analyze this evidence against the defence submission that PW4, PW5
and PW6 were mistaken about the identity of the accused, I establish the
following facts. That the visitors to the deceased's home went there when it
was still day time and when they started conversing with the deceased, one
could still see. It is later that the deceased called for a candle, secondly, the
time the two spent with the deceased and PW4, was not a brief encounter
like is the case in a sudden attack. Though the visitors were strangers to the
family members of the deceased, they engaged in a friendly conversation that

16  offered the witnesses ample opportunity to observe their visitors.

When PW6 met them and they asked him about where they could buy peas,
he knew or recognized the accused and one Ngurusi who was pushing their
bicycle. He knew the accused by name as Magezi son of Sebbi and this is
what he told PW4 when he answered the alarm announcing the death of
Kabizi. When this evidence is taken together with that of PW3 that when he
entered and found PW4 having a conversation with a man as soon as he
informed that Kabizi is dead, the man got up and ran away. Why could a

     24        visitor run away upon being told that the host is dead, unless the visitor is
   aware of the circumstances of that death?

This evidence when compared with that of PW8 who interrogated the accused
at 9:00pm which is the time from the running away from Kabizi's home, and
the subsequent revelation by the accused that he is Magezi son of Sebbi
makes the prosecution evidence credible that the Magezi son of Sebbi that
PW6 saw go to the deceased's home is the same one who ran away from
that home got lost along the village paths and is the same one PW8

     32        interrogated and after establishing his identity released him and gave him
   directions on how to reach his fathers' village. The evidence of PW4, PW5,
   PW6 and PW8 accounts for the movement of the accused with certainty. The
   bicycle that PW6 saw with Magezi son of Sebbi is the bicycle that was found
   in the bush by PW7 and exhibited in court.

Again this piece of circumstantial evidence raises strong inference of guilt
beyond mere suspicion. The chain of identification from PW4, PW5, PW6 and

[6]

PW8 renders the alibi and the issue of contradictions in the manner of dress
irrelevant. The thread or chain of evidence places the accused in the home of
the deceased on the evening and early night of 28/01/2005".

       8     The Court of Appeal after re-evaluating the evidence on record, agreed with
the trial judge that the appellant was correctly identified as found by the trial
judge. The court also agreed with the trial judge that the contradictions
raised by the appellant as to the time, descriptions of dressing and colour
of the bicycle seat did not raise any doubt in the prosecution case because
the appellant was correctly identified by PW4 PW5 PW6 and PW8 and that
the evidence did place the applicant at the scene thereby destroying his
alibi.

     16         Submissions of both counsel.

After perusing the submissions of both counsel, we agree with the
conclusions of the trial judge and the Court of Appeal in holding that the
appellant was correctly identified at the scene through the evidence of PW4,
PW5, PW6 and PW8 which evidence amply placed the applicant squarely at
the scene of crime to the extent that the appellant could not have been seen
at the scene at 8:00pm and be at his home village far away at 9:00pm. We
also agree with the conclusion of the Court of Appeal that the contradictions

     24 as to the time, descriptions of dressings and the colour of the bicycle seat
  were minor and did not raise any doubt in the prosecution case because the
  appellant was correctly identified by PW4, PW5, PW6 and PW8.

With regard to common intention both the trial Judge and Justices of the
Court of Appeal were alive in the application of the law on common intention
as provided under Section 20 of the Penal Code Act. Both courts concluded
that the appellant was with his colleague who murdered the deceased and
disappeared. The two were seen together at the home of the deceased.

     32        They had a discussion together. The appellant first tried to send pw4 away
    to go and buy them drinks but pw4 refused to go. Further proof of common
    intention was that as soon as PW3 broke the news that the deceased was
   dead, the appellant ran away from the scene. That scheme was intended to
   create opportunity to have the deceased killed quietly. In further pursuance
   to allow the assailant chance to be alone with the deceased, the appellant
   stopped pw4 from joining the company of the deceased in the kitchen. That

[7]

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was not a natural conduct. The only plausible inference is that the appellant
ran in fear because he was part and parcel of the scheme to kill the
deceased. We agree with the conclusion of the trial judge and the Court of

   8        Appeal that the conduct of the appellant as summarized above laid the
strategy through which his colleague murdered the deceased while his
running away was proof of his guilt. In short both the appellant and his
colleague had a common intention to kill the deceased; see Charles
Komwisa VS Uganda [1997] HCB 86.

In conclusion, we find that grounds 1, 2 and 3 must fail.

Ground 4

Harsh and Excessive sentencing.

16        Counsel for the appellant argued that the sentence of imprisonment for life
was excessive given the circumstances of the case. His argument was that
since the appellant did not commit the murder himself, his sentence should
be reconsidered and substituted for a lighter sentence. He further
contended that Article 23 (8) of the Constitution implores courts while
sentencing to consider the period spent by an accused on remand. That
this was not considered by the lower courts yet it was manifestly addressed
by appellant's counsel. He prayed that court should reduce the sentence.

24        In response, the learned Deputy DPP argued that in line with the facts of the
case, the deceased was brutally killed yet he was a helpless old man. She
contended that life imprisonment was justified. Counsel however conceded
to the fact that the period the appellant spent on remand should have been
considered by the lower courts. She thus prayed court to issue guidance on
this point.

Court's findings.

After perusing the court record and both counsel's submissions, we now

32        proceed to consider the above grounds.

The main complaint was that the sentence of life imprisonment was harsh
and that the Court of Appeal erred in law for confirming it without
considering the period of five years the appellant had spent on remand,
contrary to Article 23 (8) of the Constitution.

[8]

            ..

~

•
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It is a well established principle in our jurisprudence that an appellate court
is not required to interfere with the sentence imposed by a trial court which
has exercised its discretion on sentence unless the exercise of the

             8    discretion is such that it results in the sentence imposed being manifestly
excessive or so low as to amount to a miscarriage of justice or where a trial
court ignores to consider an important matter or circumstances which ought
to be considered when passing the sentence or where the sentence
imposed is wrong in principle; see Kiwalabye Benard VS Uganda; Supreme
Court, Criminal Appeal No. 143 of 2001.

In confirming the sentence imposed by the trial court, the Court of Appeal
had this to say;

           16         "In the instant case, the appellant was sentenced to life imprisonment for the
offence of murder. It is argued that it was excessive since the appellant was
not actively involved in the murder of the deceased. However, in consonance
with S. 20 of the Penal Code ACT, CAP 120 the appellant is presumed to
have committed the offence. In light of that, we too agree with the trial Judge
that life imprisonment sentence is appropriate in the circumstance of this
case. The sentence of the trial judge is hereby upheld as we see no valid
reason to interfere with it".

           24        We agree with the above conclusion. The Court of Appeal did apply correct
   principle and did re-evaluate the mitigation of sentence and rightly came to
  the conclusion that the sentence of life imprisonment imposed by the Trial
  Judge in the case of murder was appropriate in the circumstances.

We therefore have no reason to interfere with the above conclusion.

It was further contended that the learned trial judge in passing sentence of
life imprisonment did not take into account the period of five years the
appellant had spent on remand contrary to Article 23 (8) of the Constitution.

32   The above Article provides as follows:-

"Where a person is convicted and sentenced to a term of imprisonment for
an offence, any period he or she spends in lawful custody in respect of the
offence before the completion of his or her trial shall be taken into account in
imposing the term of imprisonment".

[91