Wakilii

Uganda v Odhiambo & Anor (Criminal Sessions Case No. 0122 of 2015)

High Court · [2017] UGHCCRD 425 · 2017 First Accused Acquitted; Second Accused Convicted 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
First accused acquitted and discharged; second accused convicted of murder and sentenced to time served

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court convicted the second accused of murder under section 188 and 189 of the Penal Code Act on the basis of aiding and abetting, holding that by tying the legs of the deceased during a mob assault, he rendered substantial practical assistance to the principal offenders. The first accused was acquitted, as the circumstantial evidence against him, though suspicious, did not establish his participation beyond reasonable doubt. The court sentenced the second accused to time served, having regard to his young age, accessory role, and the period spent on remand.

Outcome

First accused acquitted and discharged; second accused convicted of murder and sentenced to time served

Facts

On the night of 2 April 2013, the deceased Oryem Saidi Musa went to the home of his estranged lover Zalika to collect his personal effects. Zalika raised an alarm accusing him of being a thief and of spreading powdered pepper through her ventilator. A mob descended on the deceased and assaulted him severely. He died a few hours later from the injuries sustained, including severe head trauma, skull fracture, and brain injury. Both accused lived in the neighbourhood. Prosecution witnesses testified that the first accused was seen leaving the scene holding what appeared to be a blood-stained shirt and that the second accused tied the legs of the deceased with a rope during the assault. The first accused claimed he was elsewhere that night and the second accused claimed he was merely an onlooker.

Issues

  1. Whether the death of the deceased Oryem Saidi Musa occurred.
  2. Whether the death was caused by an unlawful act.
  3. Whether the unlawful act was actuated by malice aforethought.
  4. Whether the first accused Odhiambo Tom participated in causing the unlawful death.
  5. Whether the second accused Atayo Godfrey participated in causing the unlawful death.
  6. Whether the second accused aided and abetted the commission of murder by tying the legs of the deceased.

Orders

  • A1 Odhiambo Tom acquitted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act.
  • A1 Odhiambo Tom to be set free forthwith unless being held for other lawful reason.
  • A2 Atayo Godfrey found guilty and convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act.
  • A2 Atayo Godfrey sentenced to time served.
  • A2 Atayo Godfrey to be set free upon the rising of the court unless being held for other lawful reason.
  • Convict advised of right of appeal against conviction and sentence within fourteen days.

Rules and key headnotes

Murder — Proof of essential ingredients — Death, unlawful causation, malice aforethought, and participation
To secure a conviction for murder, the prosecution must prove beyond reasonable doubt that a human being died, that the death was caused by an unlawful act, that the act was actuated by malice aforethought, and that the accused caused the unlawful death.
Murder — Malice aforethought — Inference from circumstantial evidence
Malice aforethought may be inferred from circumstantial evidence including the nature of the weapon used, the manner of its use, the part of the body targeted, and the ferocity of the assault as determined by the injuries inflicted. Where deadly weapons are used to inflict severe injuries on a vulnerable part of the body such as the head, causing skull fracture with brain matter protruding, malice aforethought can be inferred.
Circumstantial Evidence — Standard for conviction — Exclusion of reasonable doubt
In a case depending exclusively on circumstantial evidence, the court must find before deciding on conviction that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of guilt. The circumstances must produce moral certainty to the exclusion of every reasonable doubt.
Aiding and Abetting — Elements — Actus reus and mens rea
The actus reus for aiding and abetting is that the accused carries out acts specifically directed to assist, encourage or lend moral support which has a substantial effect on the perpetration of the crime. The mens rea requires proof that the accused knew of the assistance he was providing and that he acted with knowledge that it would assist in the commission of the principal offence or that the perpetration of the crime would be a possible and foreseeable result of his conduct.
Aiding and Abetting Murder — Mental element — Knowledge of principal's intent
In crimes requiring specific intent like murder, it is not necessary to prove that the aider and abettor shared the mens rea of the principal, but he must have known of the principal perpetrator's specific intent. With respect to aiding and abetting murder, the mental element required is proof that the accused knew of the murderous intent of the actual perpetrator, but need not share this specific intent.
Aiding and Abetting — Section 19 Penal Code Act — Criminal responsibility for acts enabling or aiding another
Under section 19(1)(b) and (c) of the Penal Code Act, a person who does any act for the purpose of enabling or aiding another person to commit an offence, or who aids or abets another in committing an offence, is deemed to have taken part in committing the offence and is guilty of that offence. Where an accused ties the legs of a deceased during a mob assault, rendering substantial practical assistance to the principal offenders, he is criminally responsible as an aider and abettor.
Sentencing — Murder — Accessory liability — Mitigating factors including youth and remand period
Where a convict incurs only accessory liability for murder, the death sentence may be discounted. In determining sentence, the court should consider the convict's role as an accessory, his youth, first offender status, and the period spent on remand, which must be deducted from the sentence in accordance with Article 23(8) of the Constitution and the Sentencing Guidelines.

Legislation cited (9)

Cases cited (10)

  • Ssekitoleko v Uganda [1967] EA 531
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • R v Gusambizi s/o Wesonga (1948) 15 EACA 65
  • R v Tubere s/o Ochen (1945) 12 EACA 63
  • S Mungai v Republic [1965] EA 782
  • Kooky Sharma and Another v Uganda (Supreme Court Criminal Appeal No. 44 of 2000)
  • Shubadin Merali and Another v Uganda [1963] EA 647
  • Simon Musoke v R [1958] EA 715
  • Teper v R [1952] AC 480
  • Onyango v Uganda [1967] EA 328

Full judgment

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

Uganda v Odhiambo & Anor (Criminal Sessions Case No. 0122 of 2015) [2017] UGHCCRD 425 (4 August 2017)
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.