Kato Kyambade & Anor v Uganda [2017] UGSC 32 (15 September 2017)

# Kato Kyambade & Anor v Uganda [2017] UGSC 32 (15 September 2017) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Kato+Kyambade+%26+Anor+v+Uganda+%5B2017%5D+UGSC+32+%2815+September+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F32%2Feng%402017-09-15) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Kato+Kyambade+%26+Anor+v+Uganda+%5B2017%5D+UGSC+32+%2815+September+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F32%2Feng%402017-09-15) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2017/32/eng@2017-09-15) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2017/32/eng@2017-09-15) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Kato%20Kyambade%20&%20Anor%20v%20Uganda%20\[2017\]%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2017/32/eng@2017-09-15) [ Download RTF (224.9 KB) ](/en/akn/ug/judgment/ugsc/2017/32/eng@2017-09-15/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2017/32/eng@2017-09-15/source.pdf) Report a problem ##### Is there something wrong with this document? 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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_ _s_ _t_ _day of July 2014 in Criminal_ _Appeal No_ _.__0190 of2009_ _)_ 20 _**JUDGMEN**_ _**T**_ _**O**_ _**F**_ _**CO**_ _**U**_ _**RT**_ 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. 1 ., , I 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 2 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. 3 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****& ** 4 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, 5 5 **the second appellate Co****urt****c****ann****ot take a d****i****fferent 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 find**_ _**i**_ _**ngs**_ _**,**__**though**_ _**i**_ _**t may think**_ 10 _**it possible, or even probably tha**_ _**t i**_ _**t would not have**_ _**i**_ _**tself come to**_ _**the same conclusion; it can only**_ _**i**_ _**nterfere where**_ _**it**_ _**cons**_ _**i**_ _**ders that**_ _**there was no evidence to support**_ _**t**_ _**he finding of fact, th**_ _**i**_ _**s 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. 6 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****U****ganda** where this Court stated as follows: 10 **"Generally in a cr****i****mina****l****case****,****for c****i****rc****u****mstant****i****a****l****ev****i****dence to** **sustain a conviction****, th****e****c****ircumstanti****al****evide****nc****e must point** **irresistibly to the gu****i****lt****o****f t****h****e accused****. In****R****v****s K****i****pker****in****g Arap** **Koske and Another****(****1949****)****16 EA****C****A****.****1****3****5 it wa****s s****tated that****i****n** **order to justify****,****on c****i****rcum****st****an****tial evi****de****nce,****the****inf****e****r****e****n****c****e****o****f****gui****l****t****,** 15 **the inculpatory the****f****acts****mu****st b****e****i****n****compa****ti****ble w****ith****the****inn****ocence** **of the accused and****i****n****ca****pa****b****l****e of****exp****l****a****n****a****ti****on****up****o****n****a****ny****oth****e****r** **hypothesis than****t****ha****t****of g****uilt.****T****hat s****ta****t****e****ment****o****f law****wa****s a****ppro****v****e****d** **by the EA Court of App****eal in****S****imon Mus****o****ke****V****s R (1****958****)****EA 7****1****5** **[****a****n****d see Bogere C****h****ar****le****s****case (su****p****ra) .... "** 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 **Godfre****y****Tinkamany****i****re and****An****o****ther Ve****r****sus U****gand****a Su****pre****me C****o****urt** **Cr****i****minal Appea****l****No****. 5****of****19****88** it was observed that while motive was 7 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 **Waih****i****and Another vs****U****ganda****[****1968****]****EA 278 at** **page 280** where the East African Court of Appeal stated as under:- **"Evidence of a prior threat or o****f****a****n****announced in****t****en****ti****on to kill is** 20 **always admissible evidence against a per****s****on accused o****f****murder****,** **but its probative va****l****ue var****i****es g****r****eatly and may be very small or** **even amount to nothing. Regard must be had****t****o the manner in** **wh****i****ch a threat is uttered****,****whether****i****t****i****s spok****e****n bi****t****terly or** **impulsively in sudden ange****r****o****r j****ok****in****gly and reason for the threat****,** 25 **if given, and the length of t****i****me be****t****ween t****h****e threa****t****and the killing** **are also material. Being ad****missi****b****le a****nd be****in****g e****vi****d****enc****e te****n****d****i****ng to** **connect the accused perso****n****wi****th t****he of****f****ence****c****h****a****rged****, a****prior** **th****r****eat is****,****we think capab****l****e****of c****o****r****ro****bor****a****ti****n****g****a****c****on****fessi****o****n .... "** 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 **Waih****i****v****.****Uganda**(Supra) where a 8 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 9 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 Taja****r V****s Uganda EACA** **Dr. Appeal No. 167 of****1****969**(unreported). We have explained what Counsel described as grave inconsistencies relating to the time the appellants went 10 .' 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 11 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"** 20 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** 12 . \ . \ 5 **dissociate himself****fr****om****the assaul****t****. 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 13 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_ 10 15 20 25 30 35 Katureebe, **CHIEF JUSTICE** Tumwesigye **JUSTICE OF THE SUPREME****C****O****U****RT** Arach Amoko, **JUSTICE OF THE SUPREME****C****O****U****RT** Mwangusya **JUSTICE OF THE SUPR****E****ME****C****O****U****R****T** Tibatemwa-Ekirikubinza **JUSTICE OF THE SUPREME****C****O****U****R****T** #### __Related documents #### More documents like this one ▲ To the top >