[2024] UGCA 108

### ⁵ THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT ARUA

(Coram: Kiryabwire, Mulgagonja, & Luswata, JJA)

### CRIMINAL APPEAL NO. 0086 OF 2016

### BETWEEN

- 1. AGWATA QUTNTO 10 - 2. OLWENYI ANDREW - 3. OKWIRA JAMES - 4. OCEN GEORGE - 5. ORYEM RICHARD - 6. OKWIR DENIS:::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS

### AND

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appedlfrom the Judgtnent of Hon. Justlce Nablstnde slttlng at the Elgh Cour-t, ln Llra ln Crlmlnal Sesslon Case No. O42 of 20 74 dellvered on 7&n Noaember,2015)

### JI,'DGMENT OF THE COURT

# Introduction

1l This appeal arose from the decision of the High Court of Uganda in which the learned trial Judge convicted the appellants of the offence of murder, contraqr to Sections 188 & 189 of the Penal Code Act Cap. 12O and on l8tr,November 2015, sentenced them to 45 years' imprisonment. It was stated in the indictment that the

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- ⁵ appellarrts, between 22 ll/2013 atd 23ll/2OL3, at Argentina Village in Oyam District with malice aforethought, unlawfully murdered Ocen Alfonse. - 2l The brief facts of this case as deduced from the proceedings and judgement were that the second, fourth and fifth appellants were nephews of Ocen Alfonse (hereinafter the deceased). They had a long standing land dispute with the deceased which was resolved by the LC III Court in the deceased's favor. Having won the case, the deceased sold the disputed piece of land, which displeased the appellants who referred the matter to the clan. A clan meeting was held to resolve the dispute, and again, the decision was that the deceased did no wrong to sell the land. On the same day, the appellants vowed that three days would not pass when the deceased remained alive. - 3l On 22 I I l2Ol3 the appellants went to the deceased's home over a complaint that his son had declined to participate in communal work in the area. After that dispute was settled, the appellants convinced the deceased to join them for a drink and they were seen together leaving the deceased's home. They proceeded together to a drinking joint but the deceased never returned home that night. PW1 Oyoka Andrew testified that on the same day at about 11:OO pm, he saw some of the appellants who had spears and a panga pushing a bicycle with a long bundle swathed in white cloth. The following morning, the deceased's body which had multiple injuries was found floating on the Ayira River. The matter was reported to the authorities and the appellants were then arrested, charged and convicted of the offence of murder.

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⁵ Following a full trial, the Judge sentenced each of the appellants to 45 years' imprisonment. Being dissatisfied with the sentence, the appellants sought leave of this court to appeal against sentence only, on the following grounds:

- 0 THAT the leqrned tial Judge erred in lanu and fact uhen she passed an illegal sentence u.tithout consideing the pretial remand peiod ttwt tle appellants had spent in prison. 10 - (it THAT the learned tial Judge erred in laut and fact when sh.e sentenced the appellants to 45 gears' impisonment uthich sentence is harsh and manifestlg excessiue in the circumstance s of the case.

#### Representation 20

4l At hearing of this appeal, the appellants were represented by Ms. Daisy Patience Bandaru, while Ms. Fatinah Nakafeero, a Chief State Attorney, appeared for the respondent. During the proceedings, it was confirmed that Oryem George the Sth appellant had died in prison. We therefore allowed Ms. Bandaru's prayer that his appeal abates in line with Rule 71 of the Rules of Court. We in addition allowed her prayer for leave to appeal against sentence only in line with Section 132(1) of the Trial on Indictment Act (TIA).

# Submissions of the Appellant Ground one

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5 10 5l In ground one, Ms. Bandaru drew our attention to Article 23(8) of the Constitution of the Republic of Uganda. She then submitted that the learned trial Judge imposed an illegal sentence of 45 years' imprisonment against the appellants without considering the period they had spent on remand. She argued in particular that the Judge did not arithmetically deduct the remand period and as such, the sentence imposed was illegal. She relied on the Supreme Court decision of Rwabugande Moses versus Uganda, SC Criminal Appeal No. 25 of 2OL4 in that regard.

### ¹⁵ Ground T\ro.

6l In ground two, Ms. Bandaru opined that the sentence of 45 years' imprisonment was harsh and manifestly excessive in the circumstances of the case. She relied on the cases of Klzito Senkula versus Uganda, SC Criminal Appeal No. 24 of 2OOl and Ninsiima Gilbert versus Uganda, CA Criminal Appeal No. 18O of 2OlO, where the Courts considered that the appellate Court can interfere with the sentence where it is shown that the trial Court did not consider a material fact, or where it imposed a sentence which is harsh and manifestly excessive in circumstances. Ms. Bandaru conceded that although the facts in the quoted cases may not be exactly similar to those under consideration here, this Court still has a duty to maintain consistency and uniformity while sentencing. She cited the case of Mbunya Godfrey versus Uganda, Criminal Appeal No. 4 of 2O11, in which the Supreme Court emphasized that although no two crimes are identical, the Court should try as much as possible to have consistency in sentencing. By way of comparison, Ms.

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- ⁵ Bandaru provided several other authorities that involved appellants challenging convictions of murder. She cited for example, Akbar Hussein Godi versus Uganda, SC Criminal Appeal No.3 of 2OL3, Susan Kigula & Others versus Uganda, SC Constitutional Petition No. O3 of 2o06, and No. O17 LDU Kyarikunda Richard versus Uganda, CA Criminal Appeal No.296 of 2OO9. 10 - 7l In conclusion, Ms. Bandiru submitted that the authorities she provided were a good point of reference for this Court to consider interfering with the sentence of 45 years' imprisonment. She suggested that we set it aside and substitute it with the lesser sentence of 20 years' imprisonment after considering the 3 years' period spent on remand, and for the reasons that the appellants who have family responsibilities, were youthful offenders.

# Submissions for the Respondent

- 8l As a precursor to her submissions, Ms. Nakafeero raised ^a preliminary objection that ground one of the appeal offended Section 132 (l[b) of the TIA regarding leave to appeal and prayed that it should be struck out. She nevertheless addressed the merits of the appeal. - 9l Ms. Nakafeero agreed with her learned friend on the law with regard to powers of the appellate court when making a decision to interfere with a sentence. She in that regard cited the decisions of Wamutabaniwe Jamiru versus Uganda, SC Criminal Appeal No. 74 of 2OO7 (2018) UGSC 8 which was in agreement with Kamya

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⁵ Johnson Wavamuno versus Uganda, CA Criminal Appeal No. 16 of 2OOO. She then cited the Supreme Court decision of Kyalimpa Edward versus Uganda, SC Criminal Appeal No. 1O of 1995, where the court referred to the case of R V Haviland (19831 5 Cr. App. R 1O9 and held that:

> "It is the practice that as an appellate court, this court will not interfere uith the discretion of the sentenctng Judge unless the sentence imposed is illegal or unless the court is satisfied that the sentence imposed bg the trial Judge was manifeslly so excessiue to amount to an injustice."

- 10] However, Ms. Nakafeero opposed the appeal and was in support of the sentence imposed by the learned trial Judge. She noted that the Judge was in error for failing to consider the appellants' remand period. She explained further that, it was in the case of Rwabugande Moses versus Uganda, (supral which introduced the mandatory requirement of a mathematical deduction of the period spent on remand, was first discussed and applied. That this case having been decided in 2015 well before that decision, the error was not fatal since the law cannot be applied retrospectively. She prayed that this ground of appeal fails. 20 - 11] Ms. Nakafeero further submitted that in arriving at the sentence of 45 years' imprisonment, the trial Judge made a comprehensive consideration of both the mitigating and aggravating factors. She concluded then that the sentence that was meted out to the appellant was not harsh and the Court rightly directed itself on the law. She prayed that this court upholds the sentence and

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⁵ dismisses the appeal for it was neither illegal nor malifestly excessive.

### Analysis and Decision of Court

- 12] We have carefully studied the court record, considered the submissions of counsel, and the law and authorities cited therein. Having done so, we regard the two grounds of appeal as raising two issues for determination; whether the sentence of 45 years' imprisonment imposed upon the appellants by the learned trial Judge was illegal and on the other hand, manifestly excessive in the circumstances. However before delving into the merits, we shall briefly address the preliminary point raised by respondent's counsel in her submissions. 10 15 - 131 Ms. Nakafeero submitted that the appeal was filed in violation of Section 132(1)(b) TIA which directs that one who intends to appeal against sentence only, shall lirst obtain leave of Court. It was a correct observation that the appeal was filed before the appellants obtained leave of Court. However, when the appeal was called for hearing on 20 / ll /2023, Ms. Bandaru sought that leave which we granted with no contest from Ms. Naka-feero. We believe that matter was rested. We note that the objection was raised in Ms. Nakafeero's submissions which were filed before the appeal was heard. It is now moot and the objection fails. We shall now decide the appeal. 25 20 - 30 - l4l The powers of this Court on a first appeal from the decision of the High Court, are well settled as it is provided under Rule 30 (1) (a) - Rules of this Court that:

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"on any appeal from the decision of the High Court acting in the *exercise of its original jurisdiction, the court maya. Reappraise the evidence and draw inferences of fact;*"

When reviewing the mandate of this Court, the Supreme Court decided in Kifamunte Henry versus Uganda, Criminal Appeal **No. 10 of 1997,** that this Court has a duty to:

"... review the evidence of the case and to reconsider the *materials before the trial Judge. The appellate court must then* make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it."

### Also see: Kyalimpa Edward versus Uganda (supra).

The general principle of the law is that, the powers of this Court $15$ to interfere with a sentence imposed by the High Court are quite 20 limited. In Wamutabanewe Jamiru versus Uganda (supra), the Supreme Court was in agreement with their earlier decision in Kamya Johnson Wavamuno versus Uganda, (supra) that the appellate court can only interfere:

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"If the sentence that was imposed was manifestly" excessive or so low as to amount to a miscarriage of justice, or where a trial court ignores to consider an important matter or circumstances which ought to be considered while passing the sentence, or where the *sentence imposed is wrong in principle.*"

$16$ Ms. Bandaru submitted that the sentence was illegal for violating Article 28(3) of the Constitution which provides as follows: $\frac{1}{2}$

> "Where a person is convicted and sentenced to a term of *imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before* completion of his or her trial shall be taken into account *while imposing the term of imprisonment.*" Liven.<br>Skon. The Justices of the Supreme Court exhaustively considered that provision in Rwabugande Moses versus Uganda (supra), and came to the conclusion that consideration of the remand period which is known and ascertainable, is necessarily arithmetical. They then held that a sentencing order ought not to be made out in general terms and the remand period must be arithmetically subtracted from the final sentence for it to be considered as credited to an accused, in order to comply with the Constitution.

15 17] The allocution proceedings were held on 25 I ll /75, on the same date that the appellants were each sentenced to 45 years' imprisonment. In her ruling the trial Judge held in part that:

> ".......1 haue noted that in such a case, the maximum sentence u.tould haue been the death penaltg; hou.teuer, I find that this utill not serue the ends of justice in thts case and this will be too harsh in this particular case. That beinq the case, I haue also taken into account the period the conuicts haue spent on pretial remand; their uarious aqes and the aqe of the uicttn- The conuict was an elderly man, a father and grandfather who should haue been accorded a lot of respect in societg; he should also haue been protected bg his familg but it is sad to note that theg are the uery people uho decided to take away his life in cold blood.

While I apprectate the mitigation in respect of each of the conuicts, it is mg strong belief that they should haue ought to haue thought about the consequences of their actions and thought about his families and children their acttons would haue on them. To me, the aggrauating circumstances tn this case outweigh the mitigating ciranmstances in this case.

While the starting range in tenns of years tuould be at least (35) years impisonment, taking into account all the ciranmstances of the case as noted aboue, I find that a sentence of (45) forty fiue

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⁵ years impisonment ulould be appropriate in the arcumstances of this case.

Dr. Winfred Nabisinde

Judge (sic)

20/ 11/ 2015 (Emphasis applied).

- ¹⁰ 181 It is clear that although the Judge took cognizance of the remand period, she did not inquire about its length or deduct it from the sentence. Ms. Nakafeero argued that she was under no obligation to do so because her sentencing order was made well before Moses Rwabugande (supra) was handed down by the Supreme Court on ⁰³l3l2ol7, and in which it was held that accounting for the remand period entails a clear arithmetic deduction from the final sentence. We agree with that a-rgument and would add that in Abelle Asuman versus Uganda, SC Criminal Appeal No.66 of 2016, the same Court affirmed that the decision in Moses Rwabugande (supra) cannot be applied retrospectively. 15 20 - 191 We therefore find no error by the Judge on account of the remand period. She recognized and considered it before deciding on ^a punishment. That in our view, was a legal sentence' - 2Ol Accordingly, ground one fails - ²⁵ 2Ll Besides the legality, the appellants considered a term of 45 years' imprisonment as harsh and manifestly excessive in the circumstances of the case. In order to decide whether there is merit in the second ground, we need to investigate what was presented, for and against the appellants' antecedents before they were sentenced.

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- 5 10 221 Both counsel made substantial submissions during the allocution proceedings. The prosecutor provided details of the remand periods for each appellant, and then conceded that none had a previous record. He continued that the appellants had committed a very serious offence, one carried out in a brutal manner yet none showed any remorse during the trial. That the deceased was survived by an old helpless widow. The prosecutor pushed for a deterrent sentence of 50 years. - 23]1 It was on the other hand stated in mitigation that although the appellants had committed a regrettable crime, the Court should consider that they are first time offenders and the sentence imposed should be reformatory, but not to punish them. A3 Ocen George added that the mother of his five children had remarried, and his mother who had their custody, had one hand and therefore, the children needed his care. ,46 Okwir Dennis similarly stated that upon his arrest, his house was set ablaze and his wife's whereabouts were unknown, thus leaving his Iive children in need of care. He too implored that he be allowed to return home with a sentence of community service. 15 20 - u Lpl 24]1 When sentencing the appellants, the trial Judge considered that the aggravating factors far outweighed what was presented in mitigation. She still decided not to give the death penalty. We find most of her observations reasonable. There is no doubt that the appellants were convicted of a serious crime of the murder of their close relative, an old defenseless man stated to be about 7O years. They acted in impunity by snubbing the decision of the LC Court and the clan which both decided that the land in dispute belonged

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- ⁵ to the deceased. As pointed out by the prosecutor, the deceased died a painful death. The details of the injuries in the postmortem report are a testimony to that fact. The deceased's widow also of advanced age, recounted her loss and the helpless life she now has to lead. The appellants' pleas for an early release to return home and look after their children, were rightly rejected with such facts in place. 10 - 25] Even then, this Court is bound to consider the mitigating factors. The appellants who were all lirst offenders indicated their remorse and readiness to reform. I also note that Okwir James, and Ocen George were at the commencement of their trial aged 27 and 30 years old, respectively. Their youthful age can be considered as a mitigating factor. Olwenyi Andrew who was aged 53 years can be held in the same regard, due to his advanced age. - 261 It is our view then that, applying the consistency principle will be a good guide to decide whether with such facts, the sentences were in fact, harsh and excessive. The principle was enunciated in the Supreme Court decision of Aharikundira Yustina versus Uganda, SC Criminal Appeal No. 27 of 2O15. Courts must ensure that sentences given should to the best extent possible, be consistent with previous sentences imposed in cases with nearly similar facts. Both counsel did allude to the principle in their submissions. Ms. Bandaru cited cases where, after considering mitigating factors, the Courts handed down sentences lower than 45 years. Conversely, Ms. Nakafeero referred to cases in which higher sentences, including that of life imprisonment, were imposed for the same offence.

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- ⁵ 271 We have in addition considered other decisions. In Anguyo Robert versus Uganda, Criminal Appeal No. 48 of 2OO9, the appellant was convicted of murder and sentenced to 20 years' imprisonment. On appeal to this court, the sentence was set aside and substituted with 18 years. In Aharikundira Yustina versus Uganda, (supra! the Supreme Court set aside a death sentence and substituted it for 30 years in respect of an appellant who brutally murdered her husband and then cut off some of his body parts. In Byaruhanga versus Uganda, CA Criminal Appeal No. L44 of 2OO7, this Court considered a sentence of 20 years' imprisonment reformatory for a 29-year-old convict who drowned his seven months old baby. 15 10 - 281 The same Court has equally imposed more severe sentences. In Sebuliba Siraji versus Uganda, CA Criminal Appeal No. 319 of 2OO9 the appellant way laid and then attacked the deceased and fatally wounded him by cutting him with a panga on his head, neck and hand. He was convicted on his own plea of guilty and sentenced to life imprisonment. This Court upheld the sentence. Similarly, in Sunday Gordon versus Uganda, CA Criminal Appeal No. 1O3 of 20O6, this Court upheld a sentence of life imprisonment for a 35-year-old convict who was part of a mob which, armed with pangas, spears and sticks, attacked and killed an elderly womarr.

29]1 The above cases indicate a sentence range of 20 years to life in prison. We have re-visited the facts, submissions of counsel presented in allocution proceedings and previously decided cases. Having done so, we consider the sentence of 45 years'

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⁵ imprisonment as harsh and excessive in the circumstances. We set it aside, and in its place impose a sentence of 32 years' imprisonment on Okwir James, Ocen George and Olwenyi Andrew on account of their ages. We impose a sentence of 37 years' imprisonment for Agwata Quinto and Okwir Dennis. From those individual sentences, we deduct two years and ten months from each sentence that the appellants had spent on remand before their conviction by the High Court.

301 Accordingly this appeal has succeeded only in part. The appellants shall serve the following sentences to run from 18/11/2015, the date of their conviction.

Agwata Quinto: 34 years, 4 months' imprisonment.

Olweny Andrew: 29 years,4 months' imprisonment.

Okwir James: 29 years, 4 months' imprisonment.

Ocen George: 29 years, 4 months' imprisonment.

²⁰ Okiwir Denis: 34 years, 4 months' imprisonment.

We so order.

Dated this &tS day of N 2024. f^

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HON. G KIRYABWIRE JUSTICE OF APPEAL 10 15 GON JUSTI E OF APPE,AL HON. EVA USWATA JUSTI OF APPEAL 25 20 HON. IRENE t-\_