Wakilii

Uganda v Makoha (High Court Criminal Session Case No 0412 of 2010)

High Court · [2012] UGHCCRD 11 · 2012 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial in the High Court for murder
Decision
Accused convicted of murder

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the High Court had jurisdiction under section 4 of the Penal Code Act as the accused was investigated and prosecuted by Ugandan authorities and the defence failed to prove the offence occurred in Kenya. The court convicted the accused of murder, finding that he pushed the deceased into deep waters of Lake Victoria during a scuffle over fishing equipment, causing death by drowning. Malice aforethought was inferred from the accused pushing the deceased into deep waters far from shore and failing to report the incident.

Outcome

Accused convicted of murder

Facts

On 28 January 2010, the deceased Bogere Kiriwajo Ramathan and Mbagambe Moses (PW1) went fishing on Lake Victoria from Singila Island. They discovered three jerrycans used as floaters were missing. At around 7 pm they encountered the accused Makoha David fishing in his boat with the missing jerrycans. PW1 held the two boats together while the deceased jumped into the accused's boat to retrieve the jerrycans. A scuffle ensued and the accused pushed the deceased into the water. The deceased drowned in deep waters approximately five hours rowing distance from land. The body was recovered on 3 February 2010. Post-mortem examination on 4 February 2010 established cause of death as suffocation secondary to drowning. The accused did not report the incident or attempt rescue.

Issues

  1. Whether the High Court had territorial jurisdiction to try the offence when evidence suggested it may have occurred in Kenyan waters.
  2. Whether the prosecution proved the death of Bogere Kiriwajo Ramathan.
  3. Whether the death of the deceased was unlawfully caused.
  4. Whether the death was caused with malice aforethought.
  5. Whether the accused participated in the killing of the deceased.

Orders

  • Preliminary objection to jurisdiction dismissed.
  • Accused found guilty of murder contrary to sections 188 and 189 of the Penal Code Act.
  • Accused convicted as indicted.

Rules and key headnotes

Territorial Jurisdiction — Murder — Waters of Transboundary Lakes
Where an offence is investigated by the Uganda Police and prosecuted by the Director of Public Prosecutions, a Ugandan court has jurisdiction under section 4 of the Penal Code Act unless the defence establishes with evidence that the offence was committed outside Uganda. Testimony from a non-expert witness suggesting possible foreign commission is insufficient to oust jurisdiction.
Murder — Burden of Proof — Standard of Proof
In a murder prosecution, the burden of proof of all ingredients of the offence rests on the prosecution throughout the trial and the standard is proof beyond reasonable doubt. An accused person is presumed innocent until proven guilty and bears no duty of proving innocence.
Murder — Unlawful Killing — Rebutting the Presumption
Death is presumed to be unlawful unless caused by accident, in defence of property or person, or is excused by law. This is a rebuttable presumption. The accused bears the burden of rebutting it on the balance of probabilities by showing that the killing was accidental or excusable.
Murder — Malice Aforethought — Inference from Circumstances
Malice aforethought, being a mental element, can be inferred from surrounding circumstances including the nature of the weapon used, the manner of its use, the part of the body affected, the nature and extent of injuries, and the conduct of the accused before, during and after the killing. Where an accused pushes a victim into deep waters far from shore, malice aforethought may be inferred from knowledge that death is a probable consequence.
Identification — Eyewitness Testimony — Close Range Observation
An eyewitness who observes an incident at close range in daylight hours and is able to properly identify the accused from the dock may be accepted as a truthful witness, particularly where the witness had no prior acquaintance with the accused and no motive to fabricate evidence.
Murder — Post-Offence Conduct — Failure to Report
An accused person's failure to report that someone had fallen from his boat into deep waters and drowned is conduct incompatible with innocence and may support an inference of malice aforethought. A law-abiding person would report such an incident even if the victim was unknown to them.

Legislation cited (4)

Cases cited (5)

  • Sekitoleko v Uganda [1967] EA 531
  • Uganda v Nkurungira Thomas & Another (Criminal Case No. 426 of 2010)
  • Gasangizi Wesonga v R [1948] 15 EACA 63
  • Festo Shirabu v R [1955] 22 EACA 454
  • Tubere v R [1945] 12 EACA 63

Full judgment

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

Uganda v Makoha (High Court Criminal Session Case No 0412 of 2010) [2012] UGHCCRD 11 (5 July 2012)
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.