[2025] UGCA 161

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MASINDI

(Coram: Dr. F. Zeija (DCJ), C. Gashirabake, and K. K. Katunguka JJA)

## Criminal Appeal No. 0343 OF 2019

#### **BETWEEN**

# AFIDRA FRIGONA::::::::::::::::::::::::::::::::::::

#### **AND**

# UGANDA :::::::::::::::::::::::::::::::::::

(An appeal from a decision of the High Court of Uganda sitting at Masindi in Criminal Session NO. 134 OF 2014, (H Wolayo(J), delivered on the 27^th day of *October* 2018).

#### **JUDGMENT OF THE COURT.**

#### **Introduction**

1. The appellant herein was indicted with-and convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to life imprisonment.

#### Background.

2. On the 30th day of December 2013 at Kihande 11 village in Masindi district the appellant murdered Leke Sylvio. At about 9 am he reported to the landlord and


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nearby neighbours that the deceased was vomiting blood. The landlord and the neighbours rushed to the deceased's house but the appellant never allowed them to touch the deceased. The deceased had been covered up with a blanket. He only showed the landlord and neighbours the deceased's hand that was blood stained.

- 3. The landlord then moved with the appellant to report the incident to Masindi police because the deceased was feared dead. The police detained the appellant; the scene of crime was visited and the deceased's body was found with deep cut wounds on the face and head lying in a pool of blood. The police took the deceased's body to Masindi hospital, a post mortem was done and revealed that the deceased had multiple deep pierce wounds on the face and head. The cause of death was I 8/171 inrracranial bleeding with injury to the skull/brain. The appellant admitted the offence while in police custody. The matter went through ^afull trial, and the appellant was sentenced to life imprisonment. - 4. The appellant, being dissatisfied with the sentence, appealed to this Court against both conviction and sentence on the grounds that: \_

(i)The Learned rrisl Judge erred in law antl fact in failing to evaluare the enliretlt of lhe evidence adduced on recortl, lhereby arriving ar an erroneous decision which occasioned a miscarriage of justice.

(ii)The learned trial Judge erred in law and fact in sentencing the appellant to life imprisonment, which is deemed to be maniftstly harsh and excessive in the circumstances.

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## Representation:

5. At the hearing of the appear, Ms. Harriet Ajok appeared for the appellant while Mr. oola Sam Senior Assistant Dpp appeared for the respondent. The appellant was present in court.

## Submissions of the Appellant.

The Appellant's counsel did not submit on the first ground.

- 6. on the second ground, counsel submitted that the Trial Judge disregarded the mitigating factors and the sentencing guidelines. He referred to paragraph 6 (h) of The constitution (Sentencing Guidelines For Courts of Judicature) (Practice) Directions,2013; the second schedule thereofon factors to take into consideration when sentencing, (a) Antecedents of the offender or habitual offender or first offender, and ( f) age. - 7. counsel further submitted that: the Trial Judge did not follow the mitigating factors concerning the appellant's plea that he was a first-time offender befbre sentencing him to life imprisonment; the prayer for a lenient sentence was not considered; further that the Trial Judge sentenced the appellant in total disregard of the sentencing guidelines; he therefore prayed that this court re-appraises the evidence and sets aside the life imprisonment.

## Respondent's submissions.

8. For the respondent, it was submitted that according to the record of proceedings, the prosecution subrnitted that it had no information on the appellant,s criminal record. The appellant's advocate submitted that the appellant was 59 years old and a first-time offender. For his part, the appellant stated that he had nothing to say. while considering the appropriate sentence against the appellant, the


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Trial Judge found no mitigating factors and was mindful that the appellant had spent 5 years on remand, but did not find the need to deduct from a sentence because it was life imprisonment.

9. Counsel submitted that the appellant committed a very heinous and grave offence that attracts a maximum sentence of death, having killed the deceased most brutally and cruelly. Counsel cited, Muyingo lbrahim and Olhers Vs. Uganda, Court of Appeal Criminal Appeal No. I49 ond t8S of 200,1; where this court found that the aggravating factors far outweighed the mitigating factors and that the sentence of life imprisonment was neither harsh nor excessive in the circumstances and so it was appropriate.

### Consideration of the Appeat.

- . I0. Rule 30(1) of the Judicature (Court of Appeal Rules) Directions,2005, requires this court to reappraise the evidence and draw inferences of fact. we must reconsider the materials before the Trial Judge and make up our own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. (see: Pandya V. R P9751 EA 336; Kifamunte Henry Vs. IJganda tlggSl UGSC 20). In Livingstone Kakooza v Uganda SCCA No. 17 of 1993, court held: "Courts can and will only interfere with a sentence of the trial court if the sentence is illegal or is based on a wrong principle or the court has overlooked a material factor, or where the sentence is manifestly excessive or so low as to amount to a miscarriage ofjustice. " - ll. Ground I was not argued nor submitted upon by counsel. we therefore shall not consider it.


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Ground 2: The learned trial Judge erred in law and fact in sentencing the appellant to life imprisonment, which is deemed to be manifestly harsh and excessive in the obtaining circumstances.

- 12. Counsel for the appellant contended that the Trial Judge did not consider the mitigating factors of the appellant while sentencing and thus sentenced him to a harsh sentence, contrary to the Constitution (Sentencing Guidelines for Courts of the Judicature) (Practice) Directions, 2013, which provides for factors to take into consideration when sentencing. - 13. We are alive to the position of the law that while there is need for consistency, a Trial Judge's discretion in sentencing based on the facts of each case cannot be fettered; In Karisa Moses v Uganda SCCA No. 23 of 2016, the Supreme Court held that an appropriate sentence is a matter for the discretion of the sentencing Judge, and each case presents its facts upon which a Judge exercises his/her discretion. - 14. We have found it pertinent to reproduce the relevant portion of the mitigating and sentencing notes below.

*'Court: judgement delivered.*

State: no information on previous criminal record. Offence attracts a death penalty as a maximum sentence. He took away the life of a human being. There is need to protect the right to life. I pray for a deterrent sentence.

Kabugumire: The convict is 59 years old and a first offender. I pray for a lenient $sentence...$ ... ... ... ... '

Court then stated: 'The accused abused the trust of his friend, who had hosted him. The killing is further aggravated by the callous attitude of 'pushing' the deceased into the room after he had killed him. This demonstrates a dangerous

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attitude towards the right to life. The other evidence that shows a callous attitude is the words he used when he uncovered the body of the deceased. The accused said, 'he is finished.' This shows the accused is a cold, calculative killer. I find no mitigating factors in this case. Appropriate sentence is to life imprisonment, which means the remainder of his natural life". (emphasis supplied).

- 15. The adequacy or inadequacy in consideration of the mitigating factors must be assessed alongside the available aggravating factors. In this case, as aggravating factors, the learned Judge considered the seriousness of the offence; the gruesome manner in which the appellant murdered the deceased; and his callous conduct after the murder. In her statement that she found no mitigating factors, in our view, shows that the trial judge considered the circumstances of the case and found none. - 16. We do not accept counsel for the appellant's contention that the trial Judge did not consider the mitigating factors. As highlighted above, the learned trial judge passed her decision after finding that the aggravating factors outweighed the mitigating factors. We are cognizant of the fact that the appellant was not scared at all by the death of the victim. He remained at the scene and had the audacity to go and call the neighbours, coupled with a deceitful mind that the deceased had vomited blood. Such a person is capable of killing again because he doesn't value life. We are better off if he is kept away from society. - 17. According to the Constitution (Sentencing Guidelines For Courts Of Judicature) (Practice) Directions, 2013, sentence of murder starts from 35 years with a range of 30 years up to death. We find that the sentence imposed on the appellant falls within the range. In that regard the sentence is neither harsh, excessive nor illegal. The same is upheld.

We therefore find no merit in the appeal.


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The Appeal is dismissed.

The Appellant shall continue to serve the sentence as handed down by the trial court.

We so order. Dated at Masindi this ?b of 2025. FLAVTAN ZErJA(PhD) CHRISTOPHER GASHIRABAKE Justice of Appeal KETRAH KITARIISIBWA KATUNGUKA Justice of Appeal Deputy Chief Justice

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