Baitwabusa Francis v Uganda (Criminal Appeal 29 of 2015) [2017] UGSC 26 (14 August 2017)

# Baitwabusa Francis v Uganda (Criminal Appeal 29 of 2015) [2017] UGSC 26 (14 August 2017) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Baitwabusa+Francis+v+Uganda+%28Criminal+Appeal+29+of+2015%29+%5B2017%5D+UGSC+26+%2814+August+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F26%2Feng%402017-08-14) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Baitwabusa+Francis+v+Uganda+%28Criminal+Appeal+29+of+2015%29+%5B2017%5D+UGSC+26+%2814+August+2017%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2017%2F26%2Feng%402017-08-14) [ 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/2017/26/eng@2017-08-14) [ 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/2017/26/eng@2017-08-14) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Baitwabusa%20Francis%20v%20Uganda%20\(Criminal%20Appeal%2029%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2017/26/eng@2017-08-14) [ Download PDF (3.8 MB) ](/en/akn/ug/judgment/ugsc/2017/26/eng@2017-08-14/source) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download PDF (3.8 MB) ](/en/akn/ug/judgment/ugsc/2017/26/eng@2017-08-14/source) * * * * * Report a problem __ ##### Baitwabusa Francis v Uganda (Criminal Appeal 29 of 2015) [2017] UGSC 26 (14 August 2017) Copy citation * __Document detail * __Related documents 1 Citation Baitwabusa Francis v Uganda (Criminal Appeal 29 of 2015) [2017] UGSC 26 (14 August 2017) Copy Media Neutral Citation [2017] UGSC 26 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Criminal Appeal 29 of 2015 Judges [Tumwesigye, JSC](/en/judgments/all/?judges=Tumwesigye%2C%20JSC), [Mwangusya, JSC](/en/judgments/all/?judges=Mwangusya%2C%20JSC), [Opio-Aweri, JSC](/en/judgments/all/?judges=Opio-Aweri%2C%20JSC), [Mwondha, JSC](/en/judgments/all/?judges=Mwondha%2C%20JSC), [Tibatemwa-Ekirikubinza, JSC](/en/judgments/all/?judges=Tibatemwa-Ekirikubinza%2C%20JSC) Judgment date 14 August 2017 Language English ##### __Related documents * Overturns [Baitwabusa v Uganda (Criminal Appeal No. 0026 of 2011) [2015] UGCA 19 (17 February 2015)](/en/akn/ug/judgment/ugca/2015/19) Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content 5 **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA AT KAMPALA** **CRIMINAL APPEAL NO. 0029 OF 2015** **(Coram****:** Tumwesigye; Mwangusya; Opio-Aweri; Mwondha; Tibaternwa- 10 Ekiriikubinza; JJ.S.C) **Between** **BAITWABUSA FRANCIS APPELLANT** **And** **UGANDA RESPONDENT** 15 _(Appeal from the decision of the Court of Appeal of Uganda at Kampala before_ _the Justices Nshimye_ _,__Solome Balungi Bossa, Kenneth Kakuru JJA, on the_ _17_ _t_ _h day of February 2015 in Criminal Appeal No.26 of 2011_ _)_ 20 _**JUDGMENT OF COURT**_ This is a second appeal which arises from the judgment of the Court of Appeal which upheld the conviction of Baitwabusa Francis (the appellant) by the High Court on five counts of murder and a sentence of life imprisonment on each count. The sentences were to run concurrently. 25 The facts of the case as found by the trial Judge (Chigamoy Owinyi-Dollo, J as he then was) and upheld by the Court of Appeal are that the deceased persons, namely, Kaireta Geoffrey, aged 25 years, Kabajwiga Brenda, aged 20 years, Kisembo Derrick aged 4 years, Disaya Kabajungu, aged 3 years and Amanyire Edward, aged 2 years lived at Kihande I Village, Masindi with 30 Mathew Karubanga (PW2), his wife, Tugume Maureen and his mother, Rose Kabatoro (PW3). On the 8th day of July, 2008 they had all retired to bed when PW2 who was sleeping with his wife in a separate room from that of the deceased, heard 1 'a blast from the Television set. He noticed that the house had caught fire 35 and all attempts to open the door were futile because it had been locked from outside. His mother who was sleeping in a separate house raised an alarm which attracted neighbours who removed iron bars from a window through which PW2 and his wife escaped. The deceased were not so lucky. They were all burnt beyond recognition as the post mortem reports on all 40 the five dead bodies indicated. They all died of multiple organ damage due to extensive burns. The District Police Commander Masindi District, Alex Twebaze( PW5) on receiving the report about this incident visited the scene that very night. On reaching the scene he confirmed that five people had perished in the fire and 45 the name of the appellant was being mentioned in connection with the burning of the house in which the deceased persons perished. He, together with the Local Council Chairman, Masindi and PW2 headed for the home of the appellant at Katama village where the wife of the appellant opened for them. The appellant was called out of his house and informed of 50 the allegation that he had burnt PW2's house in which the deceased were burnt. He was then arrested. He did not resist the arrest. His only response to the arrest was that it was okay. He was taken to Masindi Police Station from where he was later taken to the Chief Magistrate Court where he was charged with murder. He was later indicted in the High Court sitting 55 at Masindi where the prosecution adduced evidence to link him with the offences. The appellant denied the alleged offences. He testified that on 8th July 2008 he had gone to bed at 10:00 p.m. and was sleeping when he was awakened by his wife who told him that someone wanted him. The District Police 60 Commander called him out and placed him under arrest. He was taken to Masindi Police Station where he denied having burnt the house in which the deceased persons died. 2 'Norah Kyakuhaire (DW2) in support of her husband's alibi testified that on 8th July, 2008 she returned home at 6:00 p.m. from school where she was a 65 teacher. She found her husband and children at home and they remained together till his arrest in the night. The arrest of the appellant was prompted by information circulating at the scene that he was not on good terms with PW2 whom he suspected of having a love affair with his wife. The suspicion arose from the fact that 70 PW2 had left a phone with the appellant's wife for whom he was doing some casual work. According to PW2 and DW2, the phone was a pledge for a sum of Shs 20,000/= which PW2 had borrowed from the appellant's wife. PW2 had also taken a sum of Shs.850,000/= from DW2 on the pretext that he had a 75 cure for her medical condition. These two incidents had soured the relationship between PW2 and the appellant who had allegedly warned PW2 that something was going to happen to him following which his house was burnt. Both the High Court and the Court of Appeal found that the case depended 80 on circumstantial evidence and we agree. Both Courts rightly stated the principles which Courts apply in deciding cases based on circumstantial evidence as was re-stated in the case of **Akbar Hussein Godi Vs Uganda** **(Supreme Court****)****Criminal Appea****l****No 03 of 2013****)** as follows:- **"There are many decided cases which set out the relevant** 85 **principles which Courts apply****i****n deciding cases based on** **circumstantial evidence. In the case of Simon Musoke Vs R.** **(1958) E.A. 715 at page 718H, the Court of Appeal for East Africa** **held that in a case depending exclusively upon circumstantial** **evidence****,****the Court must****,****before deciding upon conviction, find** 90 **that the inculpatory facts are incompatible with the innocence of** **the accused****,****and incapab****l****e of explanation upon any other** **reasonable hypothesis than that of guilt "see also Teper Vs R.** 3 **(1952) 2 ALL ER 447. Also see Andrea Obonyo****& ****Others Vs R.** **(1962) E.A****.****542 where the p****ri****nciples governing the application by** 95 **Courts of circumstantial evidence were cons****i****dered"****.** The circumstantial evidence relied upon by the two Courts to convict .the appellant consisted of the threat by appellant to do harm to PW2 and evidence that he was seen fleeing from the scene on his motorcycle. The appellant denied both incidents throughout his trial and in his appeal he 100 raises two grounds as follows:- 1\. That the learned Justices of Appeal erred in law and fact when they failed to properly re-evaluate the circumstantial evidence on record to come up with their own conclusion. 2\. That the learned Justices of Appeal erred in law and fact in upholding an 105 illegal sentence of the Appellant spending the rest of his life in prison (Life imprisonment) which was a manifestly excessive sentence. He prayed that 1\. The appeal be allowed. 2\. The harsh and excessive sentence of the appellant spending the rest of 110 his life in Prison be set aside or substituted with a lessor (sic) prison term. The second ground is badly drafted. It raises the issue of illegality of sentence related to imprisonment of the appellant for the rest of his life and mixes it with the issue of a manifestly excessive sentence. 115 The prayer seems to abandon the issue of illegality but it is raised again in the appellant's final submissions. Our observation is that Counsel should take more care in the drafting of the memoranda of Appeal so that there is no mix up of issues on Appeal. Both grounds will be resolved as matters of 120 Law. 4 'At the hearing of the appeal the appellant was represented by Mr. Emmanuel Muwonge, Counsel on State Brief while the Respondent was represented by Ms Caroline Nabasa, a Senior Principal State Attorney, 125 Directorate of Public Prosecutions. Both Counsel filed written submissions which they adopted at the hearing of the appeal. On the first ground of Appeal, Counsel for the appellant submitted that both the trial Court and the Court of Appeal correctly observed that the case 130 against the appellant was based entirely on circumstantial evidence because there was no eyewitness who saw the appellant commit the crime. He also acknowledged that both Courts correctly set out the principles that govern the Courts before any reliance can be placed on circumstantial evidence to convict a person. However, he faulted both Courts for having 135 heavily relied on the testimony of PW9 which lacked credibility. According to Counsel, this witness only came to testify after the Court had detained his mother and maternal uncle and his evidence that he had been approached by PW2 with money to testify against the appellant makes his testimony unreliable and should not have been believed. He also could not have 140 identified the appellant in the conditions prevailing on the night he is alleged to have met the appellant riding his motor cycle following the incident. In reply Counsel for the Respondent submitted that the Court of Appeal properly re-evaluated the evidence as required of a first appellate Court and 145 given the strong circumstantial evidence adduced by the prosecution, the appellant was placed at the scene of crime. She submitted that the circumstantial evidence rotated around the grudge between the appellant and PW2 and the evidence of PW9 who met the appellant fleeing from the scene. According to this witness, the appellant was carrying a yellow five 150 liter jerrycan which fell off the motor cycle and he assisted him to retrieve it. He identified him in the process. 5 This Court being a second appellate Court is not required to re-evaluate the whole evidence unless it is found that the first appellate Court did not 155 sufficiently re-evaluate the evidence to draw its own conclusion. This is the position which was stated in the case of **Kifamunte Henry Vs Uganda** **SCCA 10 of 1997** as follows:- **"It is the Court of Appeal as the first appellate Court which has** 160 **duty to re-evaluate the ev****i****dence of the trial Court****.****This Court will** **no doubt consider the facts of the appeal to the extent of** **considering the relevant point of law or mixed law and fact raised** **in any appeal. If we re- evaluate the facts of each case wholesale** **we will assume the duty of the first appellate Court and create** 165 **unnecessary uncertainty. We can interfere with the conclusions of** **the Court of Appeal if it appears that in consideration of the appeal** **as a first appellant Court, the Court of Appeal misapplied or failed** **to apply the principles set out in such decisions as Pandya (Supra)** **Ruwala (Supra) Kairu (Supra****)"** 170 In view of the defence of alibi raised by the appellant, it was incumbent on the trial Court and the Court of Appeal to determine whether or not the appellant was put at the scene of crime. The guidelines as to what amounts to putting the accused at the scene of crime were set by the Supreme Court 75 of Uganda in the case of **Bogere and Anor (Supreme Court Criminal** **Appeal No 1 of 1997****)** where it was held as follows: **"****What then amounts to putting an accused at the scene of crime?** **We think that the expression must mean proof to the required** 180 **standard that the accused was at the scene of crime at the** **material time****.** **To hold that such proof has been achieved****,****the Court must not** **base itself on the isolated evaluat****i****on of the prosecution evidence** 6 185 **alone, but must base itself upon the evaluation of the evidence as** **a whole. Where the prosecution adduces evidence showing that** **the accused was at the scene of crime****,****and the defence not only** **denies it but also adduces that he was elsewhere at the material** **time it is incumbent on the Court to evaluate both versions** 190 **judicially and give reasons why one and not the other version is** **accepted****.****It is misd****i****rect****i****on to accept one version and then hold** **that because of****t****hat acceptance per se the other version is** **unsustainable** " 195 As already indicated the case against the appellant is dependent on circumstantial evidence and the question is whether the Courts below subjected it to close scrutiny as is required. The requirement to subject circumstantial evidence to close scrutiny was emphasised in the case of **Ka****t****ende Semakula vs. Uganda****(****Supreme Court Criminal Appeal No. 11/** 200 **1994)** where it was stated as follows:- **"****Another requirement concerning c****i****rcumstant****i****al evidence is that** **i****t must be narrowly exam****i****ned****,****because ev****i****dence of this kind may** **be fabricated to cast suspicion on another. It is therefore** **necessary befo****r****e drawing the****i****n****f****erence of the accused's guilt from** 205 **circumstantial evidence to be sure that there are no other co-** **existing circumstances which would weaken or destroy the** **inference .****.****. "** The first piece of circumstantial evidence relied on by both Courts to 210 connect the appellant with the offence was a threat allegedly uttered by the appellant to PW2 on phone. The value to be attached to evidence of a prior threat was discussed in the case of **Waihi and Anor Vs Uganda (1968) E.A.** **278****at p.****280** where the East African Court of Appeal stated:- 215 **"****Evidence of a prior threat or of an announced intention to kill is** **always admissible evidence against a person accused of murder,** 7 _**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 of** 220 **i****mpulsively in sudden ange****r****or jok****i****ngly, and reason for the threat,** **i****f given****,****and the****l****ength o****f****t****i****me between the threat and the killing** **are also material****.****Be****i****ng admiss****i****b****l****e and being evidence tending to** **connect****t****he accused person with the offence charged****,****a prior** **threat is, we th****i****nk capab****l****e of corroborating a confession**.... " 225 (underlining provided) In this case, the appellant denies having made the threats and there was no verification of any telephone contact between the appellant and PW2. Secondly, from our reading of the case of **Waihi Vs Uganda**(Supra) evidence 230 of prior threat cannot stand on its own. It can only be used for corroboration of other evidence which in this case is that the appellant was not only seen at the scene but was also seen fleeing from the scene on his motor cycle. According to the evidence of PW2 it was his mother, Rose Kabatoro (PW3) 235 who informed people at the scene that she knew the person who had set the house on fire and had seen him jump on his motor cycle and ride away. But the trial judge, rightly so in our view disregarded this evidence when he observed as follows:- 240 **"****It is easily discernable that the PW3****'****s Court version alleging that** **she had identified the accused flee****i****ng****from****the scene that night** **was ill contrived. She was evidently influenced to state so, by the** **ultimatum and threat she and PW2 claim the accused uttered for** **her family****;****and given that indeed the tragic fire incident took** 245 **place with****i****n this time****.****In addition was her claim that she heard** **some people allege the morning after the fire that the accused** **had been seen wi****t****h a jerrycan on a motor cycle fleeing from the** **scene of the fire****.****This was, in any case hearsay evidence and** 8 **inadmissible. PW3's claim that fateful night****i****s therefore worthless.** 250 **I must disregard it.****"** After disregarding the evidence of PW3, the only other piece of circumstantial evidence relied on to connect the appellant was that he was seen fleeing from the scene on his motor cycle. According to No 25383 255 D/CPL Okatayot Simon, an investigating officer who testified as a Court witness two people namely Mukubwa Peter a motor cycle rider who did not testify at the trial and Byakagaba Israel (PW9) a bicycle rider claimed to have met a person riding a TVS motor cycle on which he was carrying a five litre jerrycan. 260 Mukubwa did not identify the person while Byakagaba who testified as PW9 claimed to have identified the appellant whom he assisted to retrieve the five litre jerry can which had fallen from the motorcycle. But in his own testimony this is what he stated **"****the complainant** 265 **approached me and asked me to go and g****i****ve evidence on how I had met** **the accused. He asked me if I knew the person who had burnt his house** **I told him I did not know the person****,****and then he asked me go and give** **statement at police****.****I accepted but asked him for 5 million shillings.** **He refused up to now****".** 70 Earlier he had stated that he never mentioned to anyone that he had met Baitwabusa. He also denied having made any statement at the police. Later he admitted recording a statement at the police and although there was a suggestion that the appellant had approached him to influence him not to testify against him he denied ever meeting the complainant or the appellant 275 after he had made his statement at the police. He denied having discussed the case with his uncle George Magambo (PW8) and his mother Evasi Kaheru (PW7). He denied having told his mother that he had seen the accused on the night of the fire. 9 In our View, the two pieces of circumstantial evidence did not point 280 irresistibly to the guilt of the appellant. The evidence of the District police commander who arrested the appellant from his home did not help in linking the appellant with the offence. According to the witness he heard the name of appellant being mentioned at the scene and he went to his home where he found him sleeping. No search was conducted at the home of the 285 appellant especially if anybody mentioned that he had been seen fleeing on his motorcycle whose registration number was not given but was described as blue in colour. There was mention of a yellow small jerycan which was never recovered. Moreover PW9 who testified that he had met the appellant, on the night the crime was allegedly committed told court that he never told 290 any body so including the complainant whom he told that he did not know the person who had set fire to his property. It was only after he was promised Shs.5 million that he agreed to go and make a statement at the police. The complainant reneged on his promise to pay him Shs.5 million which may explain why he was reluctant to testify in Court till his relatives 295 were imprisoned. There was also evidence that he was approached by the appellant to withdraw his statement at the police which may explain the disappearance of his statement from the police file. We do not see how the trial Court and Court of Appeal would find P.W.9 300 such a credible witness as to disprove the alibi raised by the appellant. On the contrary his credibility would be in question whether he was approached by the appellant to exonerate him of the crime or by the complainant to fabricate a story that he had met the appellant fleeing from the scene. On that basis we find that although both courts were alive to the principles 305 regarding circumstantial evidence, none of them subjected it to the scrutiny required before basing a conviction on it. We are of the view that the evidence on record left the appellant as a mere suspect. Suspicion, however strong it may be does not lead to conviction. See **R v****.****Israel Epuku** _**S/0**_ **Achietu [1934****]****IEACA 166****.** 10 310 In the result the appellant's appeal is allowed. His conviction on all counts of murder is quashed and is to be released from custody unless he is being held on other lawful charges. Dat d at Kampala this 14th day of August 2017 Tumwesigye **JUSTICE OF THE SUPREME COURT** Mwangusya **JUSTICE OF THE SUPREME COUR****T** Opio Aweri **JUSTICE OF THE SUPREME COURT** Mwondha **JUSTICE OF THE SUPREME COURT** Tibatemwa-Ekirukubinza **JUSTICE OF THE SUPREME COURT** #### __Related documents #### Overturns 1. [Baitwabusa v Uganda (Criminal Appeal No. 0026 of 2011) [2015] UGCA 19 (17 February 2015)](/en/akn/ug/judgment/ugca/2015/19) #### More documents like this one ▲ To the top >