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Uganda v. Ogingo Michael Benedict SP And Anor (Crim. Case No 28 Of 2009) (Crim. Case No 28 of 2009)

High Court · [2009] UGHC 201 · 2009 Conviction Upheld; Acquittal Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for murder
Decision
First accused acquitted; second accused convicted of murder and sentenced to 10 years imprisonment

Observed later treatment

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Holding

Held that the prosecution proved beyond reasonable doubt that the second accused, SPC Nyakuni Rashid, shot and killed the deceased Ezangubo Steven with malice aforethought as defined under section 191(b) of the Penal Code. The court rejected the doctrine of common intention, finding no evidence of shared unlawful purpose between the two accused. The first accused, SP Ogingo Michael Benedict, was acquitted. Nyakuni was convicted of murder and sentenced to 10 years imprisonment considering his advanced age and health.

Outcome

First accused acquitted; second accused convicted of murder and sentenced to 10 years imprisonment

Facts

On 25 December 2008, several people including the deceased Ezangubo Steven attended a video show followed by a disco dance at Alikua Community Hall in Maracha-Terego District. The dance was held contrary to local authority directives due to security concerns. At about 10.00 p.m., the first accused (District Police Commander) and the second accused (his guard) arrived armed with a pistol and a rifle respectively to stop the dance and disperse attendees. Gunshots were fired during the dispersal. The deceased, who was standing peacefully outside the hall waiting to go home, was shot in the head and died instantly. The prosecution called nine witnesses. Both accused admitted being at the scene but denied responsibility. The first accused admitted firing one pistol shot in the air inside the hall. The second accused denied firing at all, but evidence showed he was issued 30 rounds of ammunition and returned only 28. Eyewitnesses testified that the second accused fired two shots horizontally in the direction where people were standing, killing the deceased.

Issues

  1. Whether the prosecution proved the death of Ezangubo Steven.
  2. Whether the death of Ezangubo Steven was caused unlawfully.
  3. Whether the death was caused with malice aforethought.
  4. Whether the accused persons participated in causing the death of Ezangubo Steven.
  5. Whether the doctrine of common intention applied to bind both accused persons.

Orders

  • Second accused, Nyakuni Rashid (SPC), found guilty of murder under sections 188 and 189 of the Penal Code and convicted.
  • Second accused sentenced to 10 years imprisonment.
  • First accused, Ogingo Michael Benedict (SP), found not guilty and acquitted.
  • Convict may appeal against the decision of the court.

Rules and key headnotes

Murder — Malice Aforethought — Knowledge That Act Will Probably Cause Death
Malice aforethought under section 191(b) of the Penal Code is established where an accused, having knowledge that his act or omission will probably cause death, proceeds with that act accompanied by indifference whether death is caused or not. A police officer who fires a weapon horizontally in the direction of people rather than in the air acts with malice aforethought, as he has knowledge that such positioning and firing will probably cause death.
Common Intention — Requirements — Disassociation of Purpose
For the doctrine of common intention to apply under section 22 of the Penal Code, there must be coincidence of intention or purpose between accused persons. Common intention may be inferred from presence, actions or omissions, and failure to disassociate from an attack. However, where accused persons are present for different purposes and their actions are disassociated, with one not participating in the unlawful act of the other, the doctrine does not apply and each accused's role must be examined on its own merits.
Burden of Proof — Presumption of Innocence — Standard of Proof
Under Article 28(3)(a) of the Constitution of Uganda 1995, every person charged with a criminal offence is presumed innocent until proved guilty or until that person pleads guilty. The prosecution bears the duty to prove the case as a whole against the accused beyond reasonable doubt. This presumption can only be displaced by the production of sufficient evidence proving guilt. An accused person may keep quiet in defence or give a weak or seemingly ridiculous defence, and if the prosecution fails to prove the essential ingredients of the offence beyond reasonable doubt, the accused is entitled to acquittal.
Murder — Ingredients of Offence — Participation
To secure a conviction for murder, the prosecution must prove: (a) the fact of death of the deceased, (b) that the death was unlawfully caused, (c) that the death was caused with malice aforethought, and (d) that the accused participated in causing the death. Direct eyewitness testimony identifying an accused firing shots in the direction of the deceased, corroborated by ballistic evidence showing unaccounted ammunition and post-mortem evidence of gunshot injuries, suffices to prove participation.
Sentencing — Murder — Mitigating Factors — Advanced Age and Illness
While the offence of murder attracts a maximum sentence of death or life imprisonment (approximately 20 years), a court may exercise lenience where an accused is of advanced age and suffers from illness. A sentence of 10 years imprisonment may be imposed in such circumstances, notwithstanding the gravity of the offence, where the accused is 57 years old, sickly, and has family responsibilities.

Legislation cited (5)

Cases cited (1)

  • Bumakali Lutwama and 4 Others v Uganda (Criminal Appeal No. 38 of 1989)

Full judgment

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Uganda Vs. Ogingo Michael Benedict SP And Anor (Crim. Case No 28 Of 2009) (Crim. Case No 28 of 2009) [2009] UGHC 201 (17 September 2009)
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.