Wakilii

Uganda v Osherura & Anor (HCT-05-CR-cSC-0114-2010)

High Court · [2012] UGHC 79 · 2012 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for murder
Decision
Both accused convicted of murder and sentenced to 25 years' imprisonment each

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the prosecution proved all elements of murder beyond reasonable doubt. Death of the deceased was established by medical evidence and witness testimony. Death was unlawfully caused, with no evidence of excusability. Malice aforethought was inferred from the nature of injuries (deep panga cuts to head, shoulder, and legs) and weapon used. Both accused's alibis were rejected; their confessional statements established their participation at the scene. First accused admitted planning and executing the murder; second accused was an active participant who helped pull the victim out and was promised payment. Both convicted of murder and sentenced to 25 years' imprisonment.

Outcome

Both accused convicted of murder and sentenced to 25 years' imprisonment each

Facts

On 22 February 2009 at about 9:30 pm, the deceased Sanyu Provia was operating her bar selling local brew at Kibwera Trading Centre in Isingiro District. A white salon car (UAK 614 M) arrived with four occupants. Two men entered the bar and asked for tonto, then asked the deceased if she was the person they intended to kill. They pulled her outside and assaulted her with a panga, inflicting deep cuts to her head, legs, and shoulder. A witness (Nabasa) who was present was intercepted and nearly strangled with wire but escaped. The deceased died on the way to Mbarara Regional Referral Hospital from neurogenic and hemorrhagic shock. First accused Osherura Owen had hired the vehicle that morning from Kisizi, stating he would visit his father-in-law in Isingiro. Police investigations revealed the murder was planned by Davis Arinaitwe, who believed the deceased was bewitching his family members. First accused admitted participation and implicated others. Second accused Tumwesigye Frank admitted accompanying the group and witnessing the killing, claiming he did not know the plan but was promised payment of 100,000 shillings.

Issues

  1. Whether the deceased Sanyu Provia died.
  2. Whether the death was caused unlawfully.
  3. Whether the death was caused with malice aforethought.
  4. Whether the accused participated in the killing of the deceased.

Orders

  • Both accused found guilty of murder contrary to Penal Code Act s.188 and s.189.
  • Both accused convicted of murder.
  • Convict Osherura Owen (A1) sentenced to 25 years' imprisonment.
  • Convict Tumwesigye Frank (A3) sentenced to 25 years' imprisonment.
  • Right of appeal explained.

Rules and key headnotes

Criminal Law & Procedure — Murder — Essential Ingredients — Proof of Death, Unlawfulness, Malice Aforethought, and Participation
To prove the offence of murder contrary to Penal Code Act s.188 and s.189, the prosecution must establish four essential ingredients: (i) death of a person; (ii) that death was unlawfully caused; (iii) that death was caused with malice aforethought; and (iv) that the accused participated in the killing.
Criminal Law & Procedure — Murder — Unlawful Killing — Presumption of Unlawfulness
The law presumes every homicide to be unlawfully caused unless it is excusable under the law. A homicide is excusable when committed in execution of a lawful sentence, accidentally, or in circumstances of self-defence. This presumption is rebuttable and the accused bears the burden to prove excusability on the balance of probabilities.
Criminal Law & Procedure — Murder — Malice Aforethought — Inference from Injuries and Weapon Used
Malice aforethought may be inferred from the nature of injuries inflicted, the manner of infliction, the part of the body assailed, and the weapon used. Where deep cut wounds from a panga are inflicted on the head, a delicate part of the body, and those wounds cause death, the inference is that the perpetrator knew or had reason to know that death would occur.
Evidence — Defence of Alibi — Burden of Proof — Prosecution Must Rebut
When an accused person sets up a defence of alibi, he or she does not assume the duty to prove it. The onus lies on the prosecution to bring evidence in rebuttal to destroy the alibi and place the accused at the scene of crime. If the alibi raises reasonable doubt as to the guilt of the accused, it is sufficient to secure his or her acquittal.
Evidence — Defence of Alibi — Timing of Disclosure — Early Notice Required
An alibi ought to be put forward at the earliest possible time to give the prosecution the chance to adduce evidence to test it. Where an alibi is raised for the first time during defence evidence, the prosecution may not have had the opportunity to specifically rebut or test it.
Evidence — Confessional Statements — Admissibility and Weight — Conviction on Basis of Confession
A confessional statement admitted after a trial within a trial may establish an accused's participation in an offence. Where the confession provides clear detail of the accused's role in planning and executing a murder, and is corroborated by other evidence, it is sufficient to ground a conviction despite the accused's denial and alibi defence at trial.
Criminal Law & Procedure — Sentencing — Murder — Deterrence and Denunciation of Witch-Killing
Where convicts participated in killing a person on suspicion of witchcraft, the sentence must be deterrent and send a message that witch-hunting, witch-killing, and witch-banishing have no place in society. A belief in witchcraft, even if genuine, is not an excuse for killing another person. No one has the right to take the life of another in such an unlawful manner under the pretext of killing a witch.

Legislation cited (4)

Cases cited (13)

  • Uganda v Kulabako Night Jenniffer (HC Criminal Session Case No. 61 of 1991)
  • Uganda v Turyasingura Dnis & Ors (HC Criminal Session Case No. 96 of 2009)
  • Steven Musango & Anor v Uganda (Court of Appeal Criminal Appeal No. 52 of 2001)
  • Nanyonjo Harriet & Anor v Uganda (Supreme Court Criminal Appeal No. 24 of 2007)
  • Joseph Rujumba v Uganda [1992-1993] HCB 36
  • Nandudu Grace & Anor v Uganda (Supreme Court Criminal Appeal No. 4 of 2009)
  • Francis Sekitoleko Vs. Uganda MB 68/69
  • Ausi S/o Okulu Vs. Uganda, MB 113/68
  • Mohammed Mukasa & Anor v Uganda (Supreme Court Criminal Appeal No. 27 of 1995)
  • Leonard Aniseth Vs. R (1963) AE 206
  • R.V Johnson [1961]3 ALL ER
  • Sentale v Uganda [1968] EA 365
  • Yofusa Kyobe Semalogo Vs. Uganda MB 3/67

Full judgment

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

Uganda v Osherura & Anor (HCT-05-CR-cSC-0114-2010) [2012] UGHC 79 (26 April 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.