[2024] UGCA 160

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA **CRIMINAL APPEAL NO. 122 OF 2016**

*(Coram: Hellen Obura, Muzamiru Kibeedi & Moses Kazibwe JJA)*

### 1. ATUHAIRE GODWIN

### 2. MULINDWA BRAIN AKA IBRA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **::::::::::::::RESPONDENT** UGANDA :::::::::::

(An appeal from the decision of the High Court at Masaka before Her Lordship Hon. Lady Justice Tibulya Margaret dated 19^th May, 2016 in Criminal Session Case No. 61 of 2013)

## JUDGMENT OF THE COURT

This is an appeal from the decision of the High Court (Tibulya, J) at Masaka in which the appellants were charged, tried and convicted on two counts for the offences of murder and aggravated robbery contrary to sections 188 & 189 and 285 & 286(2) of the Penal Code Act respectively. They were subsequently sentenced to life imprisonment on both counts.

The brief background to this appeal as ascertained from the court record is that on 30^th November 2012 the appellants while at Bwala village in Masaka District robbed Kalyango Steven (the deceased) of his motor cycle Reg. No. UDX 811J Bajaj Boxer valued at approximately UGX 3,000,000/= (Three Million Shillings) and immediately after the said robbery, they murdered him. Consequently, they were arrested, tried, convicted and sentenced to life imprisonment hence this appeal.

However, before the hearing of this appeal the 1^st appellant passed on and the 2^nd appellant proceeded with the appeal on the sole ground that the learned trial Judge erred in law and

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fact when he sentenced him to life imprisonment which sentence is manifestly harsh and $\mathsf{S}$ excessive in the circumstance.

At the hearing of this appeal, Ms. Ainebyona Joan represented the appellant on State Brief while Ms. Angutoko Immaculate, Chief State Attorney from the office of the Director Public Prosecution represented the respondent. Both counsel filed written submissions which were adopted and considered in this judgment.

Counsel for the appellants informed court that when she visited Masaka Main prison, she received information from the 2^nd appellant Mulindwa Brian that the 1^st appellant Atuhaire Godwin passed on in Murchison Bay Luzira Prison. She then proceeded and contacted the O/C Masaka Main Prison who in turn consulted Murchison Bay Luzira Prison in her presence and it was confirmed that the 1^st appellant passed on in 2023. However, the death certificate was not availed as they were still tracing for the same. On the basis of this information, counsel informed this Court that the 1^st appellant's appeal abates under Rule 71 of the Judicature (Court of Appeals) Rules.

Regarding the 2^nd appellant's appeal, counsel sought leave to proceed against sentence only which was granted. She submitted that the learned trial Judge did not take into account the 20 mitigating factors raised by the appellant, namely; that he is a young man in his prime life who needs to be given a lenient sentence to allow him reform. She argued that the learned trial Judge relied more on the aggravating factors that were presented.

Counsel added that the sentence is harsh and excessive in the circumstances and she invited this Court to be lenient and sentence the appellant to a lesser sentence to maintain uniformity 25 and consistency in sentencing. To support her submission, counsel cited **Bunya Godfrey vs** Uganda, SCCA No.4 of 2011; Atiku Lino vs Uganda, CACA No.00041 of 2009 cited with approval in Oyita Sam vs Uganda, CACA No.307 of 2010; Kasanja Daudi vs Uganda, CACA No. 128 of 2008 and Imakuru Isaac vs Uganda, CACA No.215 of 2009 which cited

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Tumwesigye Anthony vs Uganda, CACA No.46 of 2012. She prayed that this Court $\mathsf{S}$ invokes section 11 of the Judicature Act and imposes an appropriate sentence in consideration of the mitigating factors.

In response, counsel for the respondent submitted that at pages 41 and 42 of the record of appeal, the learned trial Judge recorded the aggravating and mitigating factors and stated in the last paragraph at page 41 that she had taken into consideration all factors relevant to the $10$ issue at hand. He added that she went ahead to highlight key considerations (both the aggravating and mitigating factors) before sentencing the appellants to life imprisonment. Counsel referred to *Magezi Gad vs Uganda*, SCCA No. 17 of 2014 in which the learned Justices of the Supreme Court held that life imprisonment for a sentence of murder is not amenable to Article 23 (8) of the Constitution since that Article only applies where the 15 sentence is for a term of imprisonment. She argued that the circumstances in the instant case such as the gruesome manner in which not only one but two offences were committed by the appellants warranted a sentence of life imprisonment which is consistent with sentences that have been upheld by both this Court and the Supreme Court in similar cases. She referred to

- Kasozi Lawrence vs Uganda, SCCA No. 13 of 2009; Sunday Gordon vs Uganda, CACA $20$ 103 of 2006; Sebuliba Siraji vs Uganda, CACA No 575 of 2005 and Budebo Kasto vs **Uganda, CACA No. 0094 of 2009** to support her submission. Counsel submitted that a sentence of life imprisonment on each count was appropriate given the circumstances of the case and she prayed this Court not to interfere with the sentence imposed. - As a first appellate court we are enjoined to re-evaluate the evidence of the entire case and $25$ come to our own conclusion on findings of fact and Law. See; Rule 30(1) of the Judicature (Court of Appeal Rules) Directions; Bogere Moses vs Uganda, Supreme Court Criminal Appeal No. 1 of 1997.

At the commencement of this appeal, counsel for the appellant informed this Court that the prison authorities from Murchison Bay Luzira Prison confirmed that the 1^st appellant passed 30

on in 2023 and she prayed that on the basis of this information, the 1^st appellant's appeal $\mathsf{S}$ abates under Rule 71 of the Judicature (Court of Appeals) Rules. Counsel for the respondent did not have any objection to that prayer.

We have ourselves confirmed from the prison authorities at Murchison Bay Luzira Prison that indeed the 1^st appellant passed on in prison in 2003. A death certificate has been availed to prove this information. In the premises, we find that the 1^st appellant's appeal has abated under rule 71 of the Judicature (Court of Appeals) Rules.

We shall now proceed to determine the 2^nd appellant's appeal. Leave is granted to the appellant to appeal against sentence only. The appellate court in exercising its power to review sentences is governed by the principle cited in *Kizito Senkula vs Uganda*, SCCA No. 24 of 2001 that:

"...in exercising its jurisdiction to review sentences, an appellate court does not alter a sentence on the mere ground that if the members of the appellate court had been trying the appellant they might have passed a somewhat different sentence; and that an appellate court will not ordinarily interfere with the discretion exercised by a trial judge unless, as was said in **James -vs- R (1950) 18 EACA 147,** it is evident that the judge has acted upon some wrong principle or over-looked some material factor or that the sentence is harsh and manifestly excessive in view of the circumstances of the case."

Counsel for the appellant faults the learned trial Judge for imposing a harsh and excessive sentence on the appellant without considering the mitigating factors. Conversely, counsel for 25 the respondent argued that the learned trial Judge considered both the aggravating and mitigating factors before sentencing the appellant to an appropriate sentence of life imprisonment.

We note that before sentencing the appellant, the learned trial Judge first listened to both the $\mathsf{S}$ aggravating and mitigating factors that were presented by the prosecution and defence counsel. The Prosecution stated that; the convicts had no past records but they prayed that Court notes that they were not remorseful at all. There was loss of life of a youth who had been their friend who they gruesomely murdered. They had been convicted of 2 counts and the maximum sentence is death. A deterrent sentence was prayed for. Defence counsel 10 stated that both accused persons were still very young men in their prime life. The offences are grave though the purpose of sentencing is not to punish but to restrict the offender. A lenient sentence was prayed for.

The learned trial Judge then stated in his ruling: -

"I have taken into consideration all factors relevant to the issue at hand. Key of these factors are; An 15 innocent young man lost his life in such un imaginable violent manner. The accused betrayed the trust he put in them as friends. They acted treacherously towards him. The fact that the accused are young men who should have been leading a decent livelihood that they decided to kill and rob makes me come to the conclusion that they are irredeemably criminally doubt deserve lenience being as it is that they are dangerous to society (sic). In view of the above, I sentence each of them to $20$ imprisonment for life (rest of life) on each of the two counts."

In our considered view, by the learned trial Judge stating that she had taken into consideration all factors that were relevant to the issue at hand it means that she had taken them into consideration both the aggravating and mitigating factors presented and any other factors that were relevant to the circumstances of the case. We note that what the learned trial Judge highlighted as key factors were not necessarily the aggravating factors that were presented by the prosecution as highlighted above but they were factors she considered in addition to the factors presented in order to enable her reach an appropriate sentence.

We therefore do not accept counsel for the appellant's submission that the learned trial Judge $\mathsf{S}$ did not consider the mitigating factors that were presented for the appellant before sentencing him.

In regard to severity of sentence, it should be noted that both the offences of murder and aggravated robbery are grave offences whose maximum sentence is death. In the instant appeal, the appellant was sentenced to life imprisonment which in our view is a more lenient sentence than the death sentence given the circumstances of this case. Similarly, with regard to the need for consistency while sentencing, we take into consideration all the cases cited to us by both counsel and others not cited so as to determine whether the sentence is harsh and excessive as contended by the appellant.

In *Guloba Rogers vs Uganda, CACA No. 57/2021*, where the appellants were convicted of 15 two counts of murder and aggravated robbery and sentenced to 47 years' imprisonment on each count. On appeal, this Court substituted the sentence with 35 years on each count.

In **Bakubye Muzamiru and anor vs Uganda, SCCA No. 56 of 2015** the appellants were indicted in the High Court on two counts of murder and aggravated robbery. They were convicted on both counts and sentenced to 40 years' imprisonment on count 1 of murder and 20 30 years' imprisonment on count 2 of aggravated robbery. The sentences were to run consecutively. On appeal to this Court, the court found that the sentence was neither harsh nor excessive and thereby upheld the conviction and sentences given by the High Court Judge. On a second appeal, the Supreme Court while upholding the sentence observed that both a conviction of murder and aggravated robbery attract the death penalty as a maximum 25 sentence but the trial Judge and the Justices of Appeal in exercise of their discretion did not award the maximum penalties prescribed by the law for each of the respective offences.

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In **Budebo Kasto vs Uganda** (supra) this Court upheld a sentence of life imprisonment $\mathsf{S}$ imposed on the appellant for both the offences of murder and aggravated robbery.

In Kasozi Lawrence v Uganda SCCA No. 13 of 2009 in which the appellants were convicted by the High Court for simple robbery of a motor vehicle and sentenced to life imprisonment, this honorable court upheld the sentence and a further appeal to Supreme Court was dismissed. In Sunday Gordon vs Uganda, CACA 103 of 2006 this Court saw no reason for interfering with the discretion of the trial Judge who imposed a life sentence against the appellant who was identified as one of the attackers who attacked the deceased with pangas in a tribal clash thus murdering her. The sentence was considered neither illegal nor manifestly excessive.

In Sebuliba Siraji vs Uganda, CACA No 575 of 2005 in which the appellant was convicted 15 on his own plea guilty, of murder by cutting with a panga, this Court upheld a sentence of imprisonment for life.

In this case, we have taken into account both the aggravating and mitigating factors and the sentences imposed in cases of a similar nature as cited above and we find that the sentence of life imprisonment imposed on the appellant is neither harsh nor excessive in the circumstances. It falls within the range of sentences that have been previously imposed by this Court. We therefore cannot fault the learned trial Judge for judiciously exercising her discretion and arriving at an appropriate sentence.

In the premises, we uphold the sentence of life imprisonment and accordingly dismiss this appeal. $25$

We so order.

| Dated at Masaka this. | 2024 | |-----------------------|------| | | |

Hellen Obura

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Muzamiru M. Kibeedi JUSTICE OF APPEAL

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Moses K. Kazibwe JUSTICE OF APPEAL

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