THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CRIMINAL APPEAL NO. 023 OF 2012
(APPEAL FROM THE JUDGMENT OF KIGGUNDU J IN MUKONO
CRIMINAL SESSION CASE NO 0171 OF 2010)

SIMBWA PAUL…………………………………………APPELLANT
VERSUS
UGANDA ………………………………………………..RESPONDENT

Coram:
HONORABLE MR. JUSTICE S B K KAVUMA, AG. DCJ.
HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA, JA
HONORABLE JUSTICE PROF. LILLIAN EKIRIKUBINZA
TIBATEMWA, JA

JUDGMENT OF THE COURT

The brief facts of this case are that the appellants arrested one
Mukisa John on allegations that he stole a bicycle. They tied him with
ropes. A mob joined them and the deceased was assaulted. The
appellants tried to take him to hospital but he died on the way. The
appellants were arrested, charged of murder, convicted and
sentenced to 14 years’ imprisonment each. Both have appealed
against conviction and sentence.

The appellants’ grounds of appeal were that;

1. The learned trial Judge erred in law and fact when she held that
the appellants formed a common intention with one another to
assault the victim and convicted them on murder.
2. The learned trial Judge erred in law and fact when she held that
the death of the deceased was caused with malice aforethought.
3. The learned trial Judge grossly erred in law and fact when she
did not sum up the case to the assessors for their opinion.

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 4. The learned trial Judge erred in law and fact when she failed to
consider the conduct of the accused (sic) persons before and
after the death of the deceased as well as their defense.
5. The learned trial Judge erred in law and fact when she sentenced
the appellants to fourteen years’ imprisonment, a sentence that
was unduly harsh and excessive.

They prayed that we allow the appeal, set aside the sentence, and in
the alternative but without prejudice to the above, convict the
appellants to manslaughter and reduce the sentence accordingly.

Mr. Sebugwawo Andrew appeared for the appellants on State brief

while Mr. Kamuli Charles Richard Principal State Attorney appeared
for the Respondent.

Before we resolve the grounds of appeal, we recall that Rule 30 of

the Judicature (Court of Appeal Rules) Directions SI 13-10
provides that, on any appeal from a decision of the High Court acting
in the exercise of its original jurisdiction, we have to: reappraise the
evidence and draw inferences of fact; and in our discretion, for
sufficient reason, take additional evidence or direct that additional
evidence be taken by the trial court or by a commissioner. This same
principle is reflected in the jurisprudence of the former East African
Court of Appeal and the Supreme Court. As a first appellate court, this
Court has to reconsider the entire evidence on record and subject it to
a fresh and exhaustive scrutiny and make its own conclusion, bearing
in mind that it did not have the opportunity to see and hear the
witnesses and should, where available on record, be guided by the
impression of the trial judge on the manner and demeanor of
witnesses (see Bogere Moses and Another v. Uganda, Supreme
Court Criminal Appeal No. 1 of 1997, Okwonga Anthony V.
Uganda Supreme Court Criminal Appeal No. 20 of 2000,
Kifamunte v Uganda Supreme Court Criminal Appeal No. 10 of
1997 and Pandya v. R [1957] EA 336).

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We have opted to resolve the grounds of appeal in the order the
parties argued them. Counsel for the appellants argued Grounds 1
and 4 together. They raise the issue of whether the Prosecution
established common intention between the parties to murder the
deceased, and whether the learned trial Judge considered the conduct
of the appellants as well as their respective defenses.

Counsel for the appellant argued grounds 1 and 4 together,

abandoned ground 3, and argued the rest separately. He argued that;
the learned trial Judge based her conviction of the appellants on the
fact that they had a common intention with others to execute an
unlawful act, which led to the death of the deceased. While she
correctly set out the law on common intention, she did not consider
factors that disassociated the appellants from the execution of the
alleged unlawful act and the participation of the accused persons in
the unlawful act was not properly addressed. All that was captured by
the learned trial Judge was the point of arrest of the deceased by the
appellant.

Counsel for the appellants also argued that the learned trial Judge
having held that the appellant formed a common intention with one
another to assault the victim erred in law and fact when she held that
the death of the deceased was caused with malice aforethought.
Common intention to assault and murder did not go together. He
cited the case of Nannyonjo Hurriet and Another v. Uganda
Supreme Court Criminal Appeal No. 24 of 2002 for this
proposition.

Counsel also submitted that there was no cogent evaluation of

evidence placing the appellants at the scene of crime and how they
participated in the unlawful act. It was not true that the first
appellant; Kisule Lumala Yonasani participated in any way in beating
the deceased because he was at home milking a cow. The

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participation of Kisule at the scene was only at the point of arrest.
After arrest, he left the place. All he did was come and take away the
deceased after PW2 had stopped those who were beating him. The
people who beat the deceased were listed by PW2 and PW5.

Regarding the second appellant, Simbwa Paul, even the learned trial
Judge accepted that no witness saw him beating the deceased. He
was standing aside from the beating. He only came to where the
beating took place when he was prompted by the deceased to
intervene and stop those who were beating him. The two appellants
were Local Council (LC) officials so it was part of their duty to arrest
suspected criminals in their area.

Counsel for the Respondent argued that the learned trial Judge
correctly and ably analyzed the law on common intention as
stipulated in S. 20 of the Penal Code Act (cap 120) and correctly
concluded that the appellants had a common intention to kill the
deceased. On malice aforethought, Counsel referred us to s. 181 of
the Penal Code Act (supra), arguing that it relates to the mental
condition of the accused. Whether or not an assailant intended to kill
the deceased can be established through the nature of the weapon
used, the nature and number of injuries inflicted on the victim, the
part of the body hit and the conduct of the killer before, during and
after the incident.

It is common ground that the deceased died from wounds inflicted on

him following a physical assault on him.

Applicable law
Section 20 of the Penal Code Act provides:
“When two or more persons form a common intention to
prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of that purpose an offence is
committed of such a nature that its commission was a

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probable consequence of the prosecution of that purpose,
each of them is deemed to have committed the offence.”

The case of Kisegerwa and Another v. Uganda Criminal Appeal

No. 6 of 1978 (Court of Appeal) elaborates on the above provision
thus:
In order to make the doctrine of common intention applicable,
it must be shown that the accused had shared with the actual
perpetrator of the crime a common intention to pursue a
specific unlawful purpose which led to the commission of the
offence…an unlawful common intention does not imply a pre-
arranged plan. Common intention may be inferred from the
presence of the accused persons, their actions and the
omission of any of them to disassociate himself from the
assault.

We do not understand the case of Nanyonjo Harriet and Senyonjo

Kato Peter v. Ugandan Supreme Court Criminal Appeal No. 24
of 2002, as laying down the principle that the finding of common
intention to commit a crime is incompatible with a finding of malice
aforethought. That case specifically dealt with the definition of malice
aforethought as it was before the amendment to the Penal Code Act
and what it is now. The learned Justices of Appeal in that case had
held that malice aforethought had been established based on an
intention to do an unlawful act foreseeing that grievous bodily harm is
the natural and probable result. The learned Justices of the Supreme
Court found that the learned Justices of Appeal had misdirected
themselves by basing their conviction on an intention to do an
unlawful act foreseeing that grievous bodily harm is the nature and
probable result. They noted that judicial precedents of DPP v Smith
and R. v. Tubere s/o Ochen had been overtaken by the amendment
to the Penal Code Act, which limited malice aforethought to only
two instances. The Supreme Court stated:

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“It is apparent from the passage of their judgment, which we
have just reproduced, that in dealing with this issue (of
malice aforethought), the learned Justices of Appeal did not
advert to the amendment introduced in the definition of
malice aforethought by the Penal Code (Amendment) Act 29
of 1970.

Prior to the amendment, section 186 of the Penal Code Act

provided that malice aforethought was deemed to be
established by evidence proving any one or more of four
circumstances, namely (a) an intention to cause the death of
or to do grievous harm to any person; (b) knowledge that the
act or omission causing death will probably cause the death
of or grievous harm to some person; (c) using violent
measures in commission of a felony; (d) an intention to
facilitate a person who has committed or attempted to
commit a felony to escape from custody. In Act 29 of 1970,
the Penal Code Act was amended inter alia by substituting for
section 186 thereof, a new provision that omitted not only
circumstances under paragraphs (c) and (d) but also excluded
“intention to cause grievous harm” and “knowledge that
grievous harm will probably be caused”. The new provision,
which in the revised edition of the Laws of Uganda 2000 cap
120, is renumbered as section 191, reads-

They relied on S. 191 of the Penal Code Act that now provides as
follows:

Malice aforethought shall be deemed to be established by

evidence providing either of the following circumstances:
(a) an intention to cause the death of any person,
whether such person is the person actually killed or not;
(b) knowledge that the act or omission causing death
will probably cause death of some person, whether such

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 person is the person actually killed or not, although such
knowledge is accompanied by indifference whether death
is caused or not, or by a wish that it may not be caused.
It is obvious from this provision that the learned Justices of
Appeal misdirected themselves in law in construing the
definition of malice aforethought to include ‘an intention to
do an unlawful act foreseeing that grievous harm is the
natural and probable consequence’.”

The question in this case is therefore whether the learned trial Judge
based her finding of malice aforethought on the fact that the
appellants must have intended to inflict grievous harm to the
deceased. And if she did, whether notwithstanding the misdirection,
there was sufficient evidence that proved beyond reasonable doubt
that the deceased was killed with malice aforethought within the
meaning of the Penal Code Act.

We have chosen to resolve grounds 1, 2 and 4 together as we

consider them related. The question in this case is therefore whether
the learned trial Judge based her finding of malice aforethought on
the fact that the appellants formed an intention to do an unlawful act
foreseeing that grievous harm is the natural and probable
consequence.

After examining the prior threat made by A1 to kill the deceased, the
learned trial Judge found that the threat by A1 to kill the deceased
was recent and proximate, and constituted circumstances of the
transaction leading to the death of the deceased. She also found that
although A1 denied participation in the beating of the deceased, his
conduct of tying him with a rope, announcing to everyone in a
populated area about the arrest of the deceased and conveniently
leaving him to the mercy of the mobs despite having been a Local
Council Chairperson irresistibly pointed to the guilt of the A1. She
found further that from the injuries inflicted on the deceased,

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whoever inflicted them intended to kill him or knew that such injuries
would cause his death. Regarding A2, the learned trial Judge found
that A2 held the deceased on a rope while A1 and others were
following. He was present when the deceased was being beaten and
the deceased pleaded with him to save his life. That A2 testified that
A1 left him to guard the deceased but he was overwhelmed by the
mob. She then concluded that the mob mobilized by A1 and A2
formed a common intention to assault the deceased. The appellants
were aware of this and left the deceased to his mercy. At no time did
the appellants disassociate themselves from the prosecution of this
unlawful purpose. They were therefore guilty of murdering the
deceased (see pages 93-95 of her judgment).

Malice aforethought was clearly established by the conduct of the

appellants. They clearly intended to kill the deceased. They knew that
their acts or omissions would cause the death of the deceased within
the meaning of S.191(b) of the Penal Code Act. On participation of
the appellants, PW2 testified that he served on the same LC Executive
Council as the appellants. His home is approximately 60 meters from
the road. On April 14, 2007, he heard loud and angry voices at about
6am. He heard people shout from below. As he stood outside, he saw
the deceased tied with ropes full of soil. A2 was holding him on the
rope and A1 was walking from behind the deceased. Others were
following. They were moving towards the station. For the time PW1
had known the deceased, he had never seen or heard that he was a
thief. After dressing up, PW1 proceeded to the station and found the
deceased tied on a pipe at Muwanguzi’s shop. He asked what the
deceased had done. One Sunday told him that he had stolen a
bicycle. The deceased was seated looking down between his legs. A1
asked the deceased where he had put his bicycle. The deceased
responded that he did not have it. A1 then left to milk his cow. Fred
Kamya and Lukwago Swaibu came on a motorcycle and beat up the
deceased with sticks. At this point, A1 was at his home, milking a cow.
The deceased was beaten thoroughly. PW2 decided to intervene and

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warned those beating him of prison. A1 came, got Swaibu’s
motorcycle and rode away. Swaibu and Kamya pulled Mukisa to the
road. A1 came and put the deceased on the motorcycle and rode
away.

Another piece of evidence came from PW3. On learning that he had

been badly beaten, she went to the station and saw A1 with a stick at
the scene but she did not see him beating the deceased.

PW3’s evidence is also relevant to the participation of the appellants.

On learning that the deceased had been badly beaten, she went to
the station and saw A1 with a stick at the scene but she did not see
him beating the deceased.

PW5, Muwanguzi Godfrey’s testimony is also relevant. He was in his

house on April 14, 2007, when he heard people shouting outside at
around 6.30am. When he opened the door, he saw on one side the
deceased with a rope tied around the waist and full of soil. A1 was
asking him where he had put his bicycle. The deceased kept quiet.
One Jagi, Bagala, Sembatya, and Defence Kamya sat on the same
bench with the deceased next door (muzigo). A1 left to milk his cows
and then went to the Police. The others started beating the
deceased. The deceased pleaded with A2 to assist him as he was
being killed. A2 tried to assist. The deceased stated that the bicycles
were with his brother Monday and with Jaya Kimenye at Nakifuma.
Police came and those who were beating him ran away. Police took
him away and he later died. He did not see A1 or A2 beating the
deceased.

PW6 testified that before he could intervene in the wrangle between

A1 and the deceased, PW1 came to him and told him that A1
continued to threaten the deceased. He then received a call that the
deceased had been taken to Nakifuma Police Post. He and PW1
followed on a bodaboda. At Nakifuma, they found A1 carrying the

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deceased on a bodaboda with one Ojiambo of CID of Nakifuma Police
Post. The deceased was in a terrible condition. He looked like he had
been pulled/dragged for a long distance. He had a wound on the eye
and arm. His whole body was swollen and full of soil. He died near a
shop after the Police Post at Nakifuma Trading Centre. A1 and the
police officer escaped.

Although this evidence does not link A1 and A2 directly to the

beatings of the deceased, it nevertheless establishes their effective
participation in the events that led to his death at the scene of crime.
PW2 testified that himself, A1 and A2 were all officials of the LC
Executive Council. A1 and A2 were among the people who arrested
the deceased and tied him with a rope on April 14, 2007 and took him
to the station. A1 demanded to know from the deceased where his
three bicycles were. They walked the deceased past PW2’s house in
Nakiwate Village and took him to the station, followed by others.

It is not clear whether the station is the same place where PW5 found
him on a veranda of the muzigo next to that of his shop/home at 6.30
am the same morning. What is clear is that all this time, a rope was
tied around his waist and he was full of soil. A1 continued to demand
that the deceased tell him where he put his bicycles. He left the
deceased to the mercy of those who had gathered, and they beat him
to death. A2 was in the company of A1 from the time PW2 cited the
group below his house, up to the station. At some point, the deceased
was prompted to seek the intervention of A2 (Muko Simbwa) to help
to stop the beatings.

When PW3 Alice Nabukeera went to the trading centre after receiving
news that her Uncle the deceased had been badly beaten, she found
A1 at the scene holding a stick.

There is therefore no doubt that the Prosecution established that the

appellants arrested the deceased, confined him with a rope, depicted

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him as a thief, tortured him to make him tell where he had taken the
bicycles allegedly stolen from A1, instead of handing him to the
Police, allowed a crowd to surround him, knowing fully well that they
would lynch him, and omitted or neglected to prevent them from
assaulting him to death. They were local council officials who should
have set an example by following legally established procedures in
arresting the deceased on suspicion of having committed a crime and
taking him to the Police. They did not do so. Instead, they allowed a
big crowd to gather around him, from the moment of arrest until they
sat him down in the station. A1 kept on demanding for his bicycle, a
clear indication that he suspected him to be a thief.

In the circumstances, the appellants were fully aware that their

actions invited action from the mob that was following them. They
were uncaring whether the deceased died or not. In fact, the mob
beat him so much that the deceased pleaded with A2 to intervene to
stop the beating. A2 did not effectively intervene, despite the
authority he wielded as a local Council official. He could have called
the Police or removed the deceased from the scene. After all, it is him
and A1 who had brought the deceased to the station in the first place,
tied with a rope. As happened, the beating did not stop and the
deceased lost his life. The appellants therefore had a clear intention
to cause the death of the deceased. We are satisfied that the learned
trial Judge was right in finding malice aforethought in the appellants’
knowledge that their act or omissions in exposing the deceased to a
mob and failing to protect him or hand him over to the police would
probably cause his death, although such knowledge was accompanied
by indifference whether death is caused or not, or by a wish that it
may not be caused. We consider that malice was established within
the meaning of section 181 of the Penal Code Act.

There is also the evidence of a prior threat made by A1 only the

previous evening. PW1, Nagawa Efransi, mother of the deceased
testified that the deceased did not stay with her but kept a cow in the

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backyard of her house. In the afternoon of April 13, 2007, at about 3
pm, she walked to Kalagi and met her son Peter. She wanted him to
intervene in the misunderstanding between the deceased and A1. A1
had threatened to kill the deceased alleging that the deceased had
stolen his (A1’s) bicycle. When she reached home, her grandchildren
PW3 and Annet Nalubega informed her that A1 had been to her home
at 8pm and wanted to see her. Soon afterwards, A1 came back,
around 10pm. He stated that he had come to get his cow. She
informed him that the deceased who owned the cow was not around.
In a rage, he insisted that he would take it. He further told her that by
the following morning, the deceased would be in a box, meaning that
he would be dead. She called the neighbors and A1 repeated the
threat in their presence and stated that he had authority to put the
deceased in a box. He then took the cow. He stayed for approximately
15 minutes.

The deceased arrived about 10 minutes later. He asked what had

become of the cow, and what A1 had left behind for caretaking the
cow that was brought as a calf. She answered that nothing had been
left, and told him of the threats uttered by A1. Despite pleas by PW1
not to go for the cow, he left saying that he would die for his cow.

The evidence of the threat was corroborated by PW3 and PW6. PW3
testified that A1 came to their home (PW1’s home) in the night of
April 13, 2007 and asked for PW1. As she was not around, he left and
came back at approximately 10pm and found PW1 home. He said that
the deceased had stolen 3 of his bicycles but if he got him, he would
carry him in a box. He then requested for his cow. PW1 asked him
for a document and he said that she would get it the following day
from his house. PW1 called a neighbor called Nalongo to witness the
incident. He untied the animal, and took it. The deceased arrived
soon after, and they told him about what had happened. He decided
to go for his cow. He never came back.

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PW6 Kefa Peter (Pastor Musumba) owned a shop at Kalagi Trading
Centre and was an elder brother to the deceased. He testified that A1
had requested the deceased to take care of his cow when it was
about 6 months. By the time of the deceased’s death, it was about 2
years old. On April 13, 2014, PW1 came and told him that A1 was
looking for the deceased and if he found him, the deceased would be
taken in a coffin.

As the Supreme Court observed in the case of Nanyonjo Harriet

and Another v. Uganda (supra), in cases of homicide, the intention
and/or knowledge of the accused person at the time of committing
the offence is rarely proved by direct evidence. More often than not
the court finds it necessary to deduce the intention or knowledge
from the circumstances surrounding the killing, including the mode of
killing, the weapon used, and the part of the body assailed and
injured.

On the submission that common intention to assault and murder did

not go together, we do not understand the case of Nanyonjo Harriet
and Another versus Uganda Criminal Appeal (supra), as laying
down the principle that the finding of common intention to commit a
crime is incompatible with a finding of malice aforethought. That case
specifically dealt with the definition of malice aforethought as it was
before the amendment to the Penal Code Act and what it is now as
already indicated in the cited passage of the Supreme Court.

In the circumstances of this case, we consider that there was a clear

intention by A1 to kill the deceased, as the threat made by him only
the evening before signified; and by both appellants in arresting him,
taking him tied to a rope and soiled at the station with a crowd in tow;
allowing him to be surrounded by the crowd, and allowing the crowd
to beat him to his death, without attempting to stop them or take him
to the Police. The fact that PW3 found A1 holding a stick was clear
evidence that he signaled to those present that it was all right to beat

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up the deceased. Moreover, at some point he left the deceased to
the mercy of the crowd by going home to milk his cow. It was only
after he returned and realized the condition that the deceased was in
that he attempted to rescue him by taking him to hospital.

We consider that the learned trial Judge did not err in her evaluation
of the evidence. Malice aforethought was clearly established by the
conduct of the appellants described above. They knew that their acts
or omissions would cause the death of the deceased. Their
knowledge was accompanied by indifference, as to whether or not the
deceased died. We consider that malice was established within the
meaning of s. 191(b) of the PCA.

We also consider that the learned trial Judge came to the right
conclusion, regarding their participation at the scene of crime. The
evidence clearly established that the appellants arrested the
deceased and deliberately left him to the mercy of the crowd to deal
with him as they saw fit, despite being local council officials, and
despite the clear common intention of the crowd to lynch him. These
actions and omissions on the part of the appellants resulted into the
death of the deceased through beatings. Predictably, the crowd beat
the deceased until he died.

The learned trial Judge referred to the common intention of the mob
to kill the deceased. We do not consider that it was an error for her to
refer to its intention to kill the deceased. The appellants were aware
of this intention but nevertheless left the deceased to the

In conclusion on these issues, and after a careful perusal of the

record, we find both appellants guilty of murdering the deceased and
uphold their respective convictions accordingly. Grounds 1, 2 and 4
are accordingly resolved in the negative.

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On ground 3, learned Counsel for the appellants argued that the
learned trial Judge grossly erred in law and fact when she did not sum
up the case to the assessors for their opinion. There was no record of
summing up notes on record. This occasioned a miscarriage of justice,
as the assessors were not guided on the law.

There is clear evidence on record that the learned trial Judge summed
up to the assessors on page 72. However, the substance of the
summing up was not reproduced in full. All that the learned trial Judge
stated was that:
“Summing up notes delivered to the assessors. When will the assessors
be ready with their opinion?”
This is what appears in the original record as well. We therefore
conclude that summing up was done but the content of the summing
up notes is note on record. It is a good and desirable practice that
the substance of the summing up notes to assessors appears in the
record of proceedings. It is the only way an appeal court can tell
whether the summing up was properly done. We are however
satisfied that this essential step was undertaken by the trial Judge and
that failure to file the notes on record was not fatal to the conviction.

We also consider it good practice that the opinion of each of the

assessors should appear on record. In this case, we note that the
assessor’s opinion appears in full on pages 73-75 of the record of
proceedings.

On sentence, the principles upon which an appellate court will act in

exercising its jurisdiction to review sentences are firmly established.
The Court does not alter a sentence on the mere ground that if the
members of the court had been trying the appellant they might have
passed a somewhat different sentence. A court will not ordinarily
interfere with the discretion exercised by a trial judge unless it is
evident that the judge has acted upon some wrong principle or over
looked some material factor or the sentence is manifestly excessive

15
or lenient, in view of the circumstances of the case. We consider that
the appellants were lucky to get away with murder with the sentence
that they did. We see no reason to interfere with the sentence, none
of the principles on which we should interfere with the sentence have
been established.

In conclusion, we dismiss this appeal; uphold the conviction of the

appellants for murder and confirm their respective sentences.

Dated 3rd October 2014

Signed by:

_______________________________________
HONORABLE MR. JUSTICE S. B. K KAVUMA, AG. DCJ.

_______________________________________
HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA, JA

_______________________________________
HONORABLE JUSTICE PROF. L .E TIBATEMWA, JA

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