THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

SITTING AT ENTEBBE
CRIMINAL SESSION CASE NO. 330 OF 2012
CRIMINAL CASE NO. 044 OF 2011
CRB NO. 709 OF 2011

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
PROSECUTION
VERSUS
KAWOOYA MUHAMED ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ACCUSED

Before: HON JUSTICE WILSON MUSENE MASALU

JUDGMENT

The accused, Kawooya Muhamed was indicted for Murder C/S. 188 and 189 of the
Penal Code Act. The particulars were that the accused, in the night of 4 th
November, 2011 on lake Victoria at Kitinda village, Katabi sub-county in Wakiso
District, murdered Buwembo Ronald.

Upon arraignment, the accused pleaded not guilty. That meant that it was the duty
of the prosecution as stipulated under the law to prove all the essential ingredients
of the offence beyond reasonable doubt.

The essential ingredients in the offence of murder are:

(a) There was death of a human being.

(b) That such death was caused unlawfully.
(c) That the death was caused with malice aforethought.
(d) That the accused participated directly or indirectly in causing the death of
the deceased.

Decision of Hon. Mr. Justice Wilson Masalu Musene

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As already noted, the duty of proving the above ingredients lies on the prosecution
throughout the trial even where accused relies on the defence of alibi. An Accused
does not bear the burden to prove his innocence. Article 28(3)(a) of the
Constitution of Uganda provides that an accused is to be presumed innocent until
proved guilty. Therefore an accused should only be convicted on the strength of
the prosecution evidence and not on the weakness of his defence even when he
appears to be telling lies. The case of Kooky Sharma and Another Vs. Uganda
Supreme Court Criminal Appeal No. 44 of 2000 refers.

To prove the above ingredients of the offence, the prosecution called four
witnesses, namely, Nyabongo Edgar, a Supretendant of Police attached to Entebbe
Police station (PW1), No. 32318 corporal Wambi Francis, (PW2) Nakibwese Rose,
the mother of the deceased (PW3) and Musoke Medi, (PW4). The prosecution also
relied on the postmortem report in respect of the deceased which was admitted in
evidence at the beginning of the trial Under S.66 of the Trial on indictment Act.
The accused on the other hand gave the defence of Alibi and denied the
commission of the offence.

As far as the 1st ingredient of the offence is concerned, that is death of Buwembo
Ronald, there is no dispute from the defence that Buwembo Ronald died. The
postmortem report admitted in evidence Under Section 66 of the T.I.A stated that
the cause of death was Asphyxia following drowning.

All the prosecution witnesses alluded to the fact of death of the deceased. In the
premises, I find and hold that the 1 st ingredient of the offence has been proved
beyond reasonable doubt.

I now turn to the 2nd ingredient of the offence. It is now settled law in East Africa
since the case of RV. Gusambizi S/O Wesonga [1948] 12 EACA 65 that all
homicides are unlawful unless excused by law. And it is only excusable if caused
by accident or in defence of a person or property.

In the present case, a postmortem report in respect of the death of the deceased was
tendered in under Section 66 of the Trial on Indictment Act. It was signed by Dr.
Moses Byaruhanga, a medical Officer. The cause of death was said to be

Decision of Hon. Mr. Justice Wilson Masalu Musene

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Asphyxia following drowning. There is no doubt that death by drowning is
unlawful.

No one has permission to drown another on the lakes or rivers of Uganda. And
even the testimony of PW4, Musoke Medi was elaborate. He testified that on 4 th
day of November, 2011, at around 5:30am, as he approached the shores of the lake,
he heard an alarm. And that someone was saying, “Kawooya Onzita, Kawooya
Onzita” meaning “Kawooya you are killing me”. That was a cry from a person
being drowned or killed and so such death cannot be said to be lawful.

All the prosecution witnesses testified that the body of the deceased was found
floating on the lake. In the premises, I find and hold that the presumption that the
deceased died unlawfully has not been rebutted. It is therefore my conclusion that
the deceased died unlawfully and so the 2 nd ingredient of the offence has been
proved beyond reasonable doubt.

The third ingredient is whether the cause of death was with malice aforethought.

Section 191 of the Penal Code Act defines malice aforethought as;

(a) An intention to Cause 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 person is the one 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. The law is
now well settled that malice aforethought being a mental element of the
offence of murder is difficult to prove by direct evidence. However,
malice aforethought can be inferred from the surrounding circumstances
of the offence such as:-

(a) The nature of weapon used

(b) The part of the body targeted.
(c) The manner in which the weapon was used.
(d) The conduct of the accused before, during and after the attack. See
RV. Tubere S/O Ochen [1945] 12 EACA 63

Decision of Hon. Mr. Justice Wilson Masalu Musene

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In the above case, the Appellant was convicted for murder after assaulting the
deceased seriously with a walking stick, causing severe injuries from which the
deceased died. Shortly, afterwards the Appellant himself did not deny the use of
the stick.

On appeal, Sir Sheridan observed:

“With regard to the use of a stick in cases of Homicide, this Court has not
attempted to lay down a hard and fast rule. It has a duty to perform in
considering the weapon used, the manner in which it is used and the part
of the body injured in arriving at a conclusion as to whether malice
aforethought has been established and it will flow more readily from the
use of say, a spear or a knife than from the use of a stick; that is not to
say that the Court takes a lenient view where a stick is used. Every case
has of course to be judged on its own facts”.

In the present case, the circumstances were peculiar in that there was an alleged
fight on the lake and drowning of the deceased. May be what is relevant from the
principles laid down in the case of RV. Tubere S/O Ochen (Supra) is the conduct
of the accused before, during and after the incident.

PW3, Nakibwere Rose, the mother of the deceased testified that whereas his son
went fishing at Kitinda on 3rd day of November,2011 at 9:00am, when she rang the
following day, his phone was off. She added that upon inquiries from his friend
called Kiiza, she was informed that the boat of Buwembo and his clothes had been
seen but not Buwembo himself.

She added that the following day, one Rasta revealed that the accused had admitted
to him that he fought with the deceased and thereafter threw him in the waters.
She added that the deceased bit the finger of accused and that when the accused
was arrested, he had a wound on one of the fingers.

PW3 added that the following day the body of Buwembo Ronald alias Boy was
recovered from the lake shores and it had a swollen neck and a wound on the head,
with blood coming out. During Cross examination by Counsel for accused, PW3
stated that the deceased used to go with Kawooya Joseph for fishing and that the
accused used to threaten him. And in Re-examination, PW3 stated that she was
Decision of Hon. Mr. Justice Wilson Masalu Musene
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told by the deceased that accused had threatened him four times and even chased
him from the fishing waters.

The conduct of the accused threatening the deceased before was an indication of
malice aforethought in the circumstances but even more relevant was the testimony
of PW4, Musoke Medi alias Rasta who more or less brought out “a dying
declaration” by the deceased. PW4 testified that as he was approaching the lake at
5:30am, he heard an alarming shouts of “Kawooya Onzita “Kawooya Onzita”
translated in English to mean Kawooya you are killing me, “Kawooya you are
killing me”.

PW4 testified that the alarm was coming from the lake. PW4 added that after 30
minutes, he saw accused coming from the direction where the alarm came from.
PW4 testified that Kawooya, accused told him that some boy was stealing his nets
and that he (accused) had fought him and boy had bitten his fingers. Accused
showed PW4 the injured finger which had a wound PW4’s further testimony was
that accused had told him he had drowned the boy in the lake.

PW4 added that accused got a boat and removed his nets. And that upon return,
accused gave PW4 fish with a request that PW4 conceals everything he had heard
from him.

PW4 added that the clothes of the deceased were recovered by fishermen at
9:00am, and the following day the body of the deceased was recovered from the
lake floating. And that it was the body of boy, the deceased which had wounds on
the head and face.

In view of the outgoing summary of the testimonies of PW3 and PW4, I find and
hold that the conduct of accused of warning the deceased four times before the
incident, then the fighting and drowning him in the lake and the conduct of trying
to bribe PW4 with fish so as to silence PW4 from revealing what he heard and saw
were all clear manifestations of malice aforethought. In the premises, I find and
hold that the prosecution has proved the 3 rd ingredient of the offence beyond
reasonable doubt.

I now turn to the 4th ingredient about identification of accused as the person who
committed the crime in question. PW1, Nyabongo Edgar, the Entebbe District
Decision of Hon. Mr. Justice Wilson Masalu Musene
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Police Commander testified that he knew the accused when he visited the scene
where the group of people (mob) were trying to lynch him for killing someone by
drowning the body in the lake Victoria.

PW1 testified that upon rescuring the accused from the mob, accused admitted
having killed the deceased and he showed PW1 the spot on the lake where he had
dropped the body. PW1 added that the following day, the body surfaced at the
very spot where accused had thrown it. PW1 concluded that accused told him they
had disagreed on the casting of the nets for fishing.

PW2, No. 32318 corporal Wambi Francis was with PW1 when they went to rescue
the accused at Ntinda Village on e shores of lake Victoria. He told this Court how
he physically pulled accused from the mob amidst stone throwing. PW2 also
testified as to how accused confessed having killed the deceased and thrown him in
the lake. The rest of PW2’s testimony was like that of PW1. PW2 also revealed
what PW4, Musoke alias David had told him. This Court finds and holds that the
testimony of the prosecution witnesses were very consistent about the identity of
the accused as the person who killed or drowned the deceased in the lake. The
testimony of PW4, Musoke Medi alias Rasta plus the accused at the scene of
crime. This is not to forget the dying declaration of the deceased as revealed by
PW4.

The law on dying declaration is that it is made by the deceased person on the verge
of death when all hope in life is gone. And when his/her conscious is silenced by
no other motive other than to tell the truth. The relevant case is Tuwamoi Vs.
Uganda [1967] E.A. 84, where the Court of Appeal for East Africa echoed the
principles on the basis on which evidence of dying declarations should be acted
upon.

Earlier on, the same Court in Mdiumaude V. Republic [1965] E.A. 193 held that
normally, the declaration of a person in extrimis is entitled to great weight as such
declarations are made under the Solomn sense of impending death. And in Migezo
Mibinga Vs. Uganda [1965] E.A 71, the Court of Appeal for East Africa,
emphasized the need for corroboration of the dying declaration which would lead
to the positive identification of the assailant.

Decision of Hon. Mr. Justice Wilson Masalu Musene

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This is where the evidence of PW4, Musoke Medi alias Rasta is relevant. He
testified that as he approached the lake in the morning hours of 5:30am, he heard
someone shouting on the waters

“Kawooya Onzita” Kawooya Onzita” in luganda. Translated in English, was

“Kawooya you are killing me, Kawooya you are killing me”.

That was indeed a dying declaration made by a person in despair, on the waters of
lake Victoria, when he was desperate and alone with the accused who was
strangling and drowning him in the waters of the mighty lake Victoria.

It was a sad moment in the life of the deceased. There was no motive for telling
lies at such a last hour, when the deceased knew he was about to meet his creator.
The dying declaration was collaborated by the immediate appearance of accused
after 30 minutes from the direction of the lake where the alarm had been made.
The relevant portion of PW4’s testimony was:-

“After 30 minutes, I saw accused coming swimming from the lake.

When he reached where I was, he told me that some boy was stealing his
nets and they fought. The boy had bitten his fingers. He showed me the
finger and it had a wound. He told me he left the boy on the waters on
the lake”.

Indeed, the following day, the marines police discovered a floating dead body of
the deceased Buwembo Ronald alias Boy on the waters of lake Victoria at the very
spot the accused had showed PW2 and PW1, police Officers who rescued him
from the mob which was about to lynch him.

The accused’s denial in his defence was in the circumstances merely evasive,
aimed at dodging the course of Justice. That was because accused clearly told this
Court that he had no grudges with either Musoke Medi alias Rasta (PW4) and the
District Police commander Entebbe, supretendant of Police Nyabongo Edgar
(PW1) or No. 32318 Corporal Wambi Francis (PW2). The wound which the
deceased inflicted on the finger of the accused through biting was also further
corroboration of the dying declaration. During Cross examination by Counsel for
state, Accused stated:-

Decision of Hon. Mr. Justice Wilson Masalu Musene

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 “I had a wound on my finger and there is a scar but I was pieced by the
fish borne. It was before the death of the deceased”.

The fish borne was the biting teeth of the deceased. And accused stupidly told this
Court open lies when he went on to state that he did not show Musoke Rasta
(PW4) that wound. The question is if he did not show it to PW4, then how he
(Musoke) could have known about that wound on his fingers. And this Court could
read nothing but open lies in the eyes of the accused from the witness stand.

In the premises, I find and hold that the prosecution has proved the fourth
ingredient of the offence beyond reasonable doubt. The accused, Kawooya
Muhamed, now standing in the dock is the one who killed and drowned Buwembo
Ronald on Lake Victoria at Kitinda village Katabi Sub- County.

Having found and held that the prosecution has proved all the ingredients of
offence beyond reasonable doubt, and as advised by the joint opinion of the
gentlemen Assessors, I do hereby convict the accused of murder contrary to
Section 188 & 189 of the Penal Code Act.

Signed by: ………………………………….

WILSON MASALU MUSENE
JUDGE
15/01/2014;

15/01/2014;

Accused present

Mbaine for state

Basaza for accused

Assessors present
Decision of Hon. Mr. Justice Wilson Masalu Musene
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Betty Lunkuse, Court Clerk present

Court: Judgment read out in open Court.

Signed by:
Wilson Masalu Musene
Judge

M/S. MBAINE FOR STATE;

The convict is a first offender, but the offence is rampant. I pray for maxim
penalty as the convict took the law in his hands and terminated the life of a young
man aged 22 years. He left behind a wife and 2 children. The convict was older
than the deceased and instead kept on threatening the deceased and later murdered
him. I therefore, pray for a deterrent sentence.

Signed by:
WILSON MASALU MUSENE
JUDGE

M/S. GLORIA BASAZA;

The convict is a first offender and advanced in age. He has two wives and 8
children. The convict informed me that the deceased was a stubborn person and
provoked the accused. I pray for a lenient Sentence other than death.

Signed by:
WILSON MASALU MUSENE
JUDGE

SENTENCE AND REASONS;

A young man, Buwembo Ronald, who was at the prime of his life lawfully
struggling to earn an honest living through fishing, was mercilessly murdered by
the convict, Kawooya Muhamed on the pretext that he was interfering with his
fishing area and lakes. I want to state it categorically and clearly that all the people
Decision of Hon. Mr. Justice Wilson Masalu Musene
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of Uganda, wherever they come from have the right to fish in lake Victoria and /or
any other lake and rivers in Uganda.

There is no body of whatever status who has a monopoly over the lake. It was
therefore sad, barbaric crude, cruel, satanic for the convict to have murdered the
deceased in such a manner, only comparable to the horrific stories of what
international pirates do on the High seas. The young man helplessly pleaded with
the convict not to kill him as reflected in the dying declaration brought out by Medi
Musoke alias Rasta, (PW4).

It was indeed a very tragic death of Buwembo Ronald. This Court further finds
that the murder of the deceased was maliciously planned and pre-meditated,
following the earlier four warnings and threats to the deceased as brought out in
the evidence of the helpless mother, (PW3). Such a highly planned and maliciously
executed murder of the deceased by the convict deserves a very harsh penalty. A
harsh penalty is necessary so that people can learn to value the sanctity of life.

And the Courts of law in this Country must live up to the expectations of the
people and take bold steps to respond to negative challenges as those posed by
terrorists and merciless murderers of law abiding citizens. Such people like
convict now deserve no mercy. Counsel for the convict in mitigation has stated
that the convict was provoked. That is now too late as the defence of provocation
was not raised at or during the trial. And much as the convict is said to be having a
wife and 8 children, so as the deceased, who as I have already stated was aged 22
years and left equally a wife and 2 children. The circumstances under which the
offence was committed have been noted as emphasized by M/S. Mbaine for state.
Thus, this Court finds that its hands are tied, a strong message has to be sent to the
people of Uganda. Reckless killing and murder has to be eliminated if not avoided
altogether.

In the circumstances, and in view of what I have outlined, I am constrained to give

the maxim penalty. You are therefore hereby sentenced to suffer death in the
manner prescribed under the law.

Decision of Hon. Mr. Justice Wilson Masalu Musene

Page 10
Signed by: ………………………………….
WILSON MASALU MUSENE
JUDGE
15/01/2014;

Decision of Hon. Mr. Justice Wilson Masalu Musene

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