Wakilii

Uganda v Kermundu Pastore & Another (Criminal Case No. 151 of 2015) 2017 UGHC 25 (2017-02-10)

High Court · [2017] UGHC 25 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance prosecution for murder
Decision
Both accused convicted of murder; first accused (aged 81) released with sentence of time served; second accused sentenced to nine years one month imprisonment

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held: The prosecution proved all elements of murder beyond reasonable doubt. Both accused participated in a mob assault on a suspected thief using a cow tail and a small stick respectively. Under section 20 of the Penal Code Act, persons sharing a common intention to assault another are deemed to have committed the offence where fatal injury results. Despite using non-lethal weapons themselves, the accused were aware others were using pangas and did not dissociate from the attack. Both convicted of murder. First accused aged 81 sentenced to time served due to advanced age. Second accused aged 32 sentenced to nine years one month after remand deduction.

Outcome

Both accused convicted of murder; first accused (aged 81) released with sentence of time served; second accused sentenced to nine years one month imprisonment

Facts

On 29 March 2015, the first accused reported a stolen cow to the LC1 Chairman. A search party found the carcass and traced blood droplets to the deceased's home where fresh meat, a tail, and hide were discovered. The deceased explained his son brought the meat. A mob gathered and assaulted the deceased, accusing him of theft. Police were called but arrived after the deceased had been beaten unconscious. He died before reaching hospital. Post-mortem revealed death caused by excessive bleeding from deep head cuts, with evidence of multiple panga and stick injuries. Both accused were present during the assault; the first used the cow's tail and the second used a stick to strike the deceased.

Issues

  1. Whether the prosecution proved the death of Orwinya Rufino.
  2. Whether the death of Orwinya Rufino was caused by an unlawful act.
  3. Whether the unlawful act was actuated by malice aforethought.
  4. Whether the accused caused the unlawful death of Orwinya Rufino.

Orders

  • Both accused convicted of murder contrary to sections 188 and 189 of the Penal Code Act.
  • First accused (A1 Kermundu Pastore) sentenced to time already served due to advanced age.
  • First accused to be set free forthwith unless held for other lawful reason.
  • Second accused (A2 Oting Sebel) sentenced to nine years and one month imprisonment after deduction of remand period.
  • Both convicts advised of right to appeal within fourteen days.

Rules and key headnotes

Evidence — Standard of proof — Criminal cases — Proof beyond reasonable doubt
Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused are innocent.
Evidence — Identification — Factors for correct identification
Where identification is made under difficult conditions, the court must test identification evidence with the greatest care and be sure it is free from the possibility of mistake by evaluating factors favourable and unfavourable to correct identification. Prior acquaintance with the accused, broad daylight, considerable time, and favourable viewing distance are factors that favour correct identification and may outweigh unfavourable circumstances such as chaotic mob justice conditions.
Criminal Law — Murder — Malice aforethought — Inference from circumstances
Malice aforethought may be inferred from the weapon used, the manner of its application, the part of the body targeted, and the ferocity of the attack. Where deep cuts are inflicted on vital areas such as the head using pangas, causing excessive bleeding and death, an intention to cause death or knowledge that death would probably result may be inferred.
Criminal Law — Common intention — Section 20 Penal Code Act — Joint liability
Under section 20 of the Penal Code Act, 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 probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence. Where several persons simultaneously attack a victim using different weapons, some deadly and others not, and it is apparent that the criminal design could descend into inflicting fatal injuries, all participants who do not dissociate themselves from the assault share a common intention and are individually liable for the ultimate death, irrespective of whether they individually inflicted fatal injuries.
Criminal Law — Sentencing — Murder — Aggravating and mitigating factors — Degree of culpability
At sentencing, the court may differentiate between co-convicts based on their degree of culpability. Where convicts participated minimally as part of a mob using non-lethal weapons (cow tail, small stick) while others used pangas, their moral blameworthiness is reduced and their participation is more at the level of accessory rather than principal liability. The nature of the weapon used and the manner of its use are relevant to assessing moral blameworthiness.
Criminal Law — Sentencing — Murder — Advanced age as mitigating factor
A relatively long prison sentence is more severe punishment for someone in their 70s or 80s than for someone younger. To a person above 70 years, a long custodial sentence could be tantamount to a sentence of death. Physically infirm older offenders do not present a serious threat to society as older offenders released from prison are less likely to reoffend. Under Regulation 9(4)(a) of the Sentencing Guidelines, the court may not sentence an offender to a custodial sentence where the offender is of advanced age (75 years and above). Where a convict is 81 years old and has been on remand for a substantial period, a sentence of time already served may be appropriate.

Legislation cited (8)

Cases cited (5)

  • Ssekitoleko v Uganda [1967] EA 531
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Bukenya v Uganda (Criminal Appeal No. 51 of 2007)
  • Sunday v Uganda (Criminal Appeal No. 103 of 2006)
  • Byaruhanga v Uganda (Criminal Appeal No. 144 of 2007)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Uganda v Kermundu Pastore & Another (Criminal Case No. 151 of 2015) 2017 UGHC 25 (2017-02-10)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.