Ajupo Esther v Uganda (Criminal Appeal 216 of 2022) [2026] UGCA 180 (18 May 2026)

UDI ND GA THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA [Coram; Obura, Tibulya & Nambayo, JJA] CRIMINAL APPEAL NO. O2I6 OF 2022 AJUPO ESTHER APPELLANT VERSUS UGANDA .....RESPONDENT (An appeal against the decision of Tadeo Asiimwe J. delivered on 3l"March 2022 at Kampala in High Court Criminal Session Case No.843 of 2020) JUDGMENT OF THE COURT l. The appellant was convicted of murder. The particulars of the offence were that on 25rr'August,, 2020 at Kiwatule Central Zone in the Kampala District, with malice aforethought, she unlawfully killed Masembe Ian. Background. 2. The facts are that on the 25tr'day of August2020, the appellant visited the deceas who was her boyfiiend. During the night, Pw8 (Sylivia Page 1 of 13 a (J Kamatsiko) had a groaning sound from the deceased's house. Edward Kiggwe (Pw2), Patrick Wamulanga (Pw3) and Sylivia Kamatsiko (pwS) went to the deceased's house. They fbund the appellant standing outside making a phone call. When they inquired fiorn the appellant, she at first infbrmed them that there was no problem but upon further probing she responded that the deceased had killed himself. q 3. The appellant was taken to the local authorities. The matter was subsequently reported to the police, who later visited the crime scene. The deceased's body was found on the bathroom lloor in a pool of blood with about l0 stab wounds. A postmortem examination revealed the cause of death as hemorrhagic shock due to the loss of blood. The appellant was arrested and indicted with Murder. She was convicted and sentenced to 25 years and 7 months imprisonment, hence this appeal. 4. She appealed on two grounds. i. That the learned trial .Iudge erred in law and fact when he failed in his duty to evaluate the whole evidence on record regarding the ingredient of participation when convicting the appellant. ii. That the learned trial Judge erred in law and fact when he sentenced the appellant to 25 years and 7 months which was excessive in the circumstances of the case, without su ct ntl king into consideration the mitigating factors. Page 2 of 13 Representation. 5. Mr. Mohammed Dauda Walugembe and Mr. Hassan Sebyala appeared for the appellant on state brief while Ms. Immaculate Angutoko, Chief State Attomey in the Office of the Director Public Prosecutions represented the respondent. Considerations. 6. This being a first appeal, the court is enjoined to re-appraise the whole evidence on record and draw its own inferences of fact and come to its own conclusion of facts and law but be cautious that it did not have the opportunity to see the witnesses testify. See Kifamunte Henry Ys. Uganda (1998) UGSC 20 wherein the court held: - i. "The first appellale court has a duty to revieu the evidence ofthe case and lo reconsider the materials before the trialjudge. The appellate Court must Ihen make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. The Court of Appeal is precluded liom questioning the findings of the trial Court. provided that there was evidence to support those findings, though it may think il possible or even probable that it would not have itself come to the same conclusion. it can only interfbre where it considers that there was no evidence to support tinding of lact". t4^ Ground | y'u' Whether the learned trial Judge erred in law and fact when he failed in his duty to evaluate the whole evidence on record regarding the ingredient of participation when convicting the appellant. 7. The appellant's principal contentions are that the prosecution case depended umstantial and hearsay evidence. o Page 3 of 13 8. Regarding the cornplaint about the courts reliance on circumstantial evidence, counsel argued that coufts have been cautious about reliance on circurnstantial evidence to ground a conviction. He cited Mulindwa James v Uganda l20l7l UGSC 6, in which Simon Musoke v R [958[ 715 was cited, for the argument that the court must, befbre basing a conviction on circumstantial evidence,, determine that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any reasonable hypothesis than that ofguilty 6 9. The respondent's principal contention was that the circumstantial evidence on which the court based its decision was cogent, strong and well- corroborated. That evidence, it was argued, proved the appellant's participation in committing the off-ence. In this regard, there was medical evidence of Pw6 (Afayo Richard) which established that the deceased's body had multiple stab wounds which varied in size from lcm to 2cm [ong, with a penetration level of injury of up to a bone and muscles of the chest. What is circumstantial evidence? l0.Circumstantial evidence is evidence in a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. See: Godi vs. Uganda, I20l5l UGSC 17. I l.This kind of evidence relies on an inference to connect it to a conclusion. Unlike direct evidence, which proves a fact directly (e.g., an eyewitness saying, "l saw the defendant stab the victim"), circumstantial evidence proves a set of surrounding circumstances from which the court can infer the f-act in qu lo Page 4 of 13 I 2.The key characteristics of circumstantial evidence are: a. it requires inference. It does not directly prove a key fact. It instead presents a collection of facts that, when considered together, logically lead to a conclusion. While direct evidence proves a fact (e.g., that X stabbed the victim), circumstantial evidence supports a fact (if Y and Z are ln)e, X must have stabbed the victim). b. It can be physical objects (a fingerprint, a weapon) or testimony (a witness testifying that they saw the defendant running from the scene at the time of the crime. c. circumstantial evidence is treated with the same legal weight as direct evidence. A person can be convicted based solely on circumstantial evidence. l3.Since the conviction decision was based on circumstantial evidence it must be determined whether the inculpatory facts were incompatible with the innocence of the Appellant and incapable ofexplanation upon any reasonable ft hypothesis than that of guilty. l4.We have considered Pw8's (Sylivia Kamatsiko) evidence that during the night, she heard groaning noise from the deceased's house which went on for an hour. Pw8's further evidence was that she got out of her house and, with her landtady and another neighbor, and went to the Appellant's gate' They found the appellant standing next to the tap, speaking on phone. When they asked her what the problem was, she said that there was none. Upon further probing, the appellant told them that she had a patient who she had come to treat had stabbed himself-. Page 5 of 13 l5.When they asked her why she did not raise an alarm, she replied that she did not know that the deceased was in the bathroom while she was in the kitchen preparing him something to eat. When they asked her why she did not raise an alarm after finding the deceased dead, she stated that she was shocked and terrified and could not raise an alarm. That Pw8's landlady made an alarm which was responded to by other people. l6.We have also considered relevant aspects of the Appellant's test ony at the trial are: "So he told me musawo let me go and have a shou,er . . . I did not hear him showering... Then afier a moment of time I heard him crying in a loud voice. So I ran since thc door ofthe bathroom was shut I went and pushed the door I was like lan whal arc you doing sceing thal he was pointing the knil'e on his chest. Yes, I went and pushed the bathroom door seeing him pointing the knil'e on his chest and the blood was already dripping down. So I tried telling him please drop the knit'e down don't do that he just told me just leave me alone and again he shut the door and I could not help him. I'hen I came back this side where I was seated. I did not go back to him again. My lord I was already seeing the blood dripping down. when I tried to stop him he closed the door and told me leave me alone. He just shut the door tiom inside. Ile just pushed the door and he told me leave me alone go. I movcd back to lhe silting room so when I came fiom where I was seated I tried looking for the key bccause I needed help. I was crying lbr help that moment..." l7.A key aspect of the above evidence is that the Appellant was at home at the material time. It is implausible that after she saw the deceased stabbing himself (as she testifies), she did not raise any alarrn or infbrm neighbors about what was happening. Equally implausible is that she we.nt to the sea roo s the deceased continued to stab himself-. Page 6 of 13 q l8.lt is of note that the defence does not contest the evidence that Edward Kiggwe (Pw2), Patrick Wamulanga (Pw3) and Sylivia Kamatsiko (Pw8) found the Appellant standing outside making a phone call, and that when they inquired, she at first informed theln that there was no problem. Only after further probing did she disclose that the deceased had killed himself. lg.There can be no reason for the Appellant's having told her neighbors that there was nothing wrong when to her knowledge there was something seriously wrong. There can be no reason for the attempt to conceal the deceased's death. 20.The learned trial Judge rightly based the decision to convict on the following factors; i. the deceased met his death on the material day, ii. the appellant was at the scene of crime, iii. she did not raise any alarm, yet she was with the deceased, iv. she informed the neighbors that there was nothing wrong and yet the deceased lay dead in the house, v. it was immaterial that there were no blood stains on the Appellant's body, since she had all the time to clean up. The incident happened at 4:00am and the neighbors went to her home at around 5:00am. 2l.We do not fault his decision. While there were no witnesses to the murder, the above circumstantial evidence pointed to the Appellant's guilt. The inculpatory facts were therefore incompatible with the Appellant's innoce and incapable ofexplanation upon any reasonable hypothesis than Page 7 of 13 ^. that of guilty. The first leg of the first ground (reliance on circumstantial evidence) therefore fails. Hearsay evidence. 22.1t was argued for the Appellant that the learned trial Judge relied on the hearsay evidence of Pw2 (Edward Kiggwe), Pw3 (Patrick Wamulanga) and Pw4 (D/C Abias Tuhwerane), who neither heard nor saw the appellant kill the deceased. The people who heard noises and fighting coming from the Appellant's house did not testify. Only those who were informed about the fighting testified. These include: - Pw2 (Edward Kiggwe), who testified that he was called by a one Nalungwa who infbrmed him that she heard people fighting in the deceased's house, Pw3 (Patrick Wamulanga) who testified that people came yelling and knocking at his gate saying that his tenants were killing each other, and Pw4 (D/C Abias Tuhwerane) who testified that one ofthe witnesses stated that she had heard people fighting in the deceased's house 23.Counsel for the Appellant incorrectly argued that the state's evidence was hearsay. PwS's evidence was direct. This included that during the night, she heard groaning noise from the deceased's house which went on for an hour. She got out ofher house and, with her landlady and another neighbor, they went to the Appellant's gate. They found the appellant standing next to the tap, speaking on phone. When they asked her what the problem was, she said that there was none. Upon further probing, the appellant told them that she had a patient who she had come to treat and he had stabbed himself to death. Further that the patient had died long ago. When they asked her why she did not raise an alarm, she replied that she did not know that he was in the bath II. nd, that she had been in the kitchen preparing him what to eat. Page 8 of 13 ,rffi" 4?- She was asking him that lan, are you OK? Ian was responding that he was fine. When they asked her why she did not raise an alarm after finding him dead, she stated that she was shocked and terrified and could not raise an alarm. She also testified that her landlady raised an alarm which was responded to by other people. The fact that Pw8's evidence was direct evidence negates the assertion that the state evidence was hearsay. 24.The appellant advanced two other arguments to demonstrate that she rs innocent l) that there was no DNA and fingerprint evidence linking her to the crime, 2) that the deceased's body did not bear defensive injuries which would negate the suggestion that the deceased put up resistance against the appellant. That ifthe appellant had participated in the murder, then the deceased's body would have bore defensive injuries. 3) that the stab wounds came from the front which was suggestive of suicide 25.Regarding the alleged absence of DNA and fingerprint evidence, Counsel argued that since the results of the finger prints on the knife were not retumed, and the DNA results from the blood samples obtained from the scene, the appellant, the deceased and the knife failed to link the appellant to the crime, the appellant's participation was not proved by the prosecution. It was also argued that since the appellant's clothes did not bear any blood stains and since the police did not subject her clothes to a DNA test, the lnve ga tions were unreliable. Page 9 of 13 ,6ff 26.According to the court record, Pwl0 (a government analyst) he was only required to test and establish whether the blood samples were human blood and the source of that blood. He fbund that the blood samples were human blood which belonged to the deceased. He opined that the genetic evidence did not support the preposition that the suspect was the donor ofthe blood stains on the knif'e and the blood sample from the crime scene. 27.Since Pwl0 was not required to conduct a DNA analysis to link the Appellant to the knif-e, counsel arguments in this regard are misconceived. 28.While we think that such an analysis would have added value to the investigation, its absence did not prejudice the state case, given incriminating evidence on record. We think that the available evidence sufficiently proved the appellant's guilt. ^. 29.Arguments that the deceased's body did not bear defensive injuries which would negate the suggestion that the deceased put up resistance, that the crime scene looked normal and well organized and showed no sign of a scuffle, which supports a preposition that the deceased committed suicide, that the stab wounds came from the front which was suggestive of suicide must all fail, on the basis that they are speculative. We reiterate that there is sufficient incriminating evidence on record. 30.1n the result we find that while the evidence on which the court based its decision was circumstantial, it was not hearsay. We also find that the evid C SLI fl'icient to convict the Appellant. Page 10 of 13 3l.Therefore, the complaint that the leamed trial Judge erred in law and fact when he failed in his duty to evaluate the whole evidence on record regarding the ingredient of participation when convicting the appellant fails. The first ground is therefore dismissed. Ground 2 Whether the learned trial Judge erred in law and fact when he sentenced the appellant to 25 years and 7 months which was excessive in the circumstances of the case, without sufficiently taking into consideration the mitigating factors. 32.Counsel submitted that the learned Judge ignored the fact that she had two young children who depended on her. Further that the children have the right to be cared for by their parents pursuant to article 34(l) ofthe Constitution and section 4(l) of the Children's Act. Under section 3(l) of the Children's Act, the welfare of a child shall be a paramount consideration whenever the state, a court or tribunal is determining any question to the upbringing of the child. Since the children in question were young and had lost their father, their best interest is best served by their mother. For that reason, the sentencing Judge should have co nsidered this factor before sentencin her TA 33.Counsel cited article 30(a) of the African Charter on rights and welfare of a child, which requires its members to provide special treatment to expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law. It requires its members to ensure that a non-custodial sentence will always be first considered when sentencing such mo ers. Page 11 of 13 34.The respondent submitted that sentencing is a discretion ofa trial Judge. For an appellate court to interfere with this discretion, it must be shown that he or she acted on a wrong principle or overlooked a material factor or the sentence is manifestly harsh or excessive given the circumstances ofthe case. In this case, the sentence of 25 years and 7 months was neither harsh nor excessive. It is consistent with sentences of murder that were imposed by this court and the Supreme court. The sentencing Judge considered all the aggravating and mitigating factors that were brought to his attention. 35.It is now settled that an appellate court can only interf-ere with sentence if it is either illegal, or founded upon a wrong principle of the law, or a result of the trial court's f'ailure to consider a material f'actor, or harsh and manifestly excessive in the circumstances of the case. See Kiwalabye Bernard v Uganda,, Supreme Court Criminal Appeal No. 143 of 2001. We may not interfere with a sentence simply because we would have imposed a different sentence. (Bashir Ssali v Uganda [20051 UGSC 2l). ^. 36.The mitigating factors which were brought to the courl's attention were that the appellant was a first offender, she was ofyouthful age and capable of reform, she was provoked since the deceased had tested HIV positive. In aggravation it was argued that the offence was grave and carries a death sentence, the circumstances under which it was committed were grave since the deceased had multiple stab wounds. 37.In sentencing the Appellant, the learned Judge observed as follows; "Submitting in aggravation of sentence, the state Attorney submitted that although the convict has no previous criminal record, the deceased bodv had LI s ( l0 stab wounds), that he was a young man with big dreams. that cre ln Page 12 of 13 @-- the off'ence is grave and attracts a maximum sentence oldeath. He finally prayed for a deterrent sentence ol40 years. In response as mitigation, the Iearned defense counseI submitted that the convict is a flrst-time offender, was provoked by the [llV report. 'fhat the convict is young aged 24 years, a nurse capable of reforming. He finally prayed for a lenient sentence ol l0 years on each counl to run concurrently" (sic). 38.Clearly, the leamed trial Judge considered all the factors that were brought to his attention. Crucially, the arguments that are now being advanced were never brought to the trial court's attention. Among these is that the Appellant had young children that were under her sole care. We cannot fault the leamed Judge for the alleged failure to consider such factors. 39.Since the Judge considered all the mitigating factors that were brought to his attention, we find no reason to interfere with the sentence. There is no material factor that was overlooked by the Judge. We thus find no merit in ground 2 of the appeal as well, and we dismiss it. 40.1n the result, the appeal fails on all grounds. It is hereby dismissed. We uphold the conviction and Signed, dated and delivered at sentence of the lower court. We so order. Kam pal tris..l*a y orffffiozo. Hellen Obura .l ustice of A peal ^ Marg et Tibulya ,Ius A ppeal Esta Nambayo .Iustice of Appeal Page 13 of 13