Court of Appeal decides on Nsenga

Saturday July 24 2021
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The incidence for which Nsenga was convicted occurred on January 10, 2013. PHOTO/ILLUSTRATION

By Sylvester Onzivua

On the 8th day of April, 2016 the High Court in Kampala convicted Jackeline Uwera Nsenga of the murder of her husband and sentenced her to 20 years imprisonment. Nsenga, dissatisfied with the decision of the trial court, took the matter to the Court of Appeal. On August 24, 2020, the Court of Appeal delivered its verdict.

The incidence for which Nsenga was convicted occurred on the night of January 10, 2013. 

The facts of the case were that Nsenga drove a car into her home that evening, and as fate would have, it was her husband who came to open the gate. Her husband got hit and was dragged by the car for a considerable distance.  Nsenga immediately drove him to a nearby health unit where he died of his injuries a few hours later.

Role of the Court of Appeal
The law clearly outlines the role of the Court of Appeal; This being the first appeal, it is our (Court of Appeal) duty to re-evaluate the evidence ourselves and determine whether the conclusions reached by the trial court should be allowed to stand or not, bearing in mind that we have neither seen nor heard the witnesses.

The law 
In a murder case, the burden of proof lies with the prosecution throughout the trial and the standard of proof is beyond reasonable doubt. A crucial element in a murder trial that the prosecution must prove is that the accused person caused the death of the victim intentionally, that is, with malice aforethought.

In this particular case, it was for prosecution to prove that Nsenga deliberately drove the car in such a manner as to kill her husband. Her defense was that what happened that evening was an accident; that the car jerked and hit the gate which then hit her husband. The onus was on prosecution to prove that the car did not jerk accidentally but was driven in a deliberate reckless manner. 

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Forensic evidence 
The forensic team that examined the scene of crime concluded that the gate was closed, that is, it was not open by the time it was rammed into by the car. According to the team, it was impossible for the driver to see who was opening the gate. The car itself was not damaged as it should have been if it had knocked a person.

Uwera told court that she could not see who was opening the gate nor could she have known that it was her husband opening the gate as he had never done so before. According to the evidence on record the deceased also told his brother that this was his first time to open the gate. 

Post-mortem evidence
The post-mortem examination indicated that the cause of death of Uwera’s husband were multiple injuries consistent with the fact that the body of the deceased was dragged over a rough surface. This means that the deceased was run over but not knocked by the car. The deceased did not have injuries consistent with being knocked down by a car. 

In light of these facts, the lawyers submitted that it not only takes a special murderous intent but also a suicidal one for one to drive a car into a closed gate. 

In spite of the forensic and medical evidence, the trial court was satisfied that prosecution had proved beyond reasonable doubt that Nsenga had murdered her husband.  

Grounds of appeal
The grounds of appeal that were submitted were that the trial court erred when it;
• Relied on the dying declarations of the Juvenal Nsenga to convict the accused.
• Failed to evaluate the evidence before it in totality and unduly relied on circumstantial evidence to convict the accused.
• Shifted the burden of proof to the accused person

Dying declaration 
The father of the deceased told court that his son stated to him that he was knocked by the car and not hit by the gate. The deceased is also reported to have said “My wife has killed me in my own home.” To another witness the deceased stated that his own vehicle has killed him in his own home and yet to another person the deceased said see what my wife has done to me. 

The Court of Appeal ruled that the deceased was in a fit condition of mind to make the dying declarations and the tone with which he talked about his wife showed that his being knocked was not accidental. 

The Appellant court was also of the view that the dying declaration supported the prosecution evidence and that the contradictions therein were minor. 

The Appellant court observed that even though the deceased stated that his car had killed him, the car was being driven by his wife and it was therefore not unreasonable to infer that he meant that his wife had deliberately knocked him down.
 The question is whether the deceased could have truly known what really hit him; the car or gate, considering the circumstances.

However to the Court of Appeal, the trial court was alive to the need to exercise caution in admitting evidence of the dying declaration and rightly found that the dying declaration was reliable evidence that Nsenga participated in the incident which ultimately led to the death of her husband. 


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