[2021] UGSC 6

# IN THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

## HOLDEN AT KAMPALA

#### CRIMINAL APPEAL NO.22 OF 2016

### (ARISING OUT OF COURT OF APPEAL CRIMINAL APPEAL NO. 578 AND 202 OF 2014)

### CORAM: ARACH AMOKO; OPIO AWERI; FAITH MWONDHA; **NIGHT TUHAISE; MIKE CHIBITA; JJSC**

#### 1. BAMANYA HAPPY

**2. KATUMBA RASHID ::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

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

(An appeal arising from a decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No. 578 and 202 of 2014 before Hon. Justice Geoffrey Kiryabwire, JA, Hon. Justice Paul Mugamba, JA, Hon. Justice Catherine Bamugemereire, JA dated 21^st October, 2016.)

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

This is a second appeal by the appellants; Happy Bamanya and Rashid Katumba. They were tried and convicted for the offence of murder contrary to sections 188 and 189 of the Penal Code Act. They were sentenced each to 37 years' imprisonment. On appeal against sentence only, the Court of Appeal set aside the sentences

and substituted it with 20 years' imprisonment. They now appeal against that sentence.

### Brief background:

On the 09/05/2011 at around 10 am at Kisojo Trading Center in Kakabara Sub county, Kyegegwa District, the deceased, a one Ninsiima Edgar M/A was found with a Motor cycle suspected to have been stolen and was arrested by the appellants and others still at large. They (appellants) proceeded to bind the deceased's hands together, assaulted him, poured petrol on his body and set him ablaze until he died. Police was called to the scene and recovered the charred dead body of the deceased from there.

The post mortem examination of the deceased's body that carried out on the 10/05/11 established the cause of death to have been severe burns, concussion and shock.

The appellants were indicted, tried and convicted of murder C/s 188 and 189 of the Penal Code Act. They were each sentenced to 37 years' imprisonment by the High Court of Uganda sitting at Fort Portal (Lameck Mukasa J) on 28th/11/2013.

Being aggrieved with the decision, appealed to the Court of Appeal. The 1^st appellant's appeal was based on the sole ground of excessiveness of sentence whereas the $2^{nd}$ appellant's memorandum of appeal contained 3 grounds of appeal that challenged both conviction and sentence.

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At the hearing of the appeal, counsel for the 2^nd appellant abandoned the 2 grounds regarding conviction that left only one ground of appeal regarding harshness of sentence. The appeal for both appellants proceeded against sentence only.

The Court of Appeal allowed the appeal, set aside the sentence of 37 years' imprisonment and substituted it with 20 vears' imprisonment.

The appellants still being dissatisfied with the decision of the Court of Appeal appealed to this Court on the following grounds;

#### 1st appellant's grounds of Appeal

1. The learned Justices of Appeal erred in law when they sentenced the appellant to an illegal sentence.

#### 2nd appellant's grounds of appeal.

1. The learned Justices of Appeal erred in law when they sentenced the appellant to an illegal sentence.

$2.$ The learned Justices of Appeal erred in law when they failed in their duty to reappraise mob justice evidence in mitigation of sentence, thereby wrongly sentenced the appellant basing on murder instead of manslaughter imposing excessive 20 years' custodial imprisonment without deducting three years' remand occasioning miscarriage of justice.

#### Representation.

At the hearing, the appellants were represented by Mr. Arthur Ayorekire for the 1^st appellant and Mr. Seth Rukundo for the 2^nd

appellant whereas Mr. Peter Mugisha Bamwine, State Attorney, appeared for the respondent. Counsel for all parties filed written submissions. They also made additional oral arguments highlighting their main points.

#### Submissions.

### $1^st$ appellant's case:

Mr. Arthur Ayorekire, counsel for the 1^st appellant contended that the sentence passed against the Appellant by the Court of Appeal was illegal. He argued that the Court ought to have deducted the time spent on remand by the 1^st appellant from the 20 years' imprisonment sentence imposed as required under Article 23(8) and the case of Rwabugande Moses vs. Uganda, SCCA No. 25 of 2014. He prayed court to allow the appeal, set aside the 20 years' imprisonment and substitute it with a 17 years' imprisonment sentence.

### $2^nd$ appellant's case.

Mr. Seth Rukundo, counsel for the 2^nd appellant submitted that the Court of Appeal imposed a 20-year imprisonment term without considering the mitigating factors. He faulted the Court of Appeal for failing to reappraise the evidence relating to the circumstances surrounding the deceased's death which involved mob justice thereby coming to a wrong conclusion. He invited this court to invoke Rule 30(1) of the Court's Rules, to reappraise evidence on record law relating to sentencing offenders involved in mob justice and the provisions of section 87 of the Trial on Indictment Act to

substitute the conviction of murder with that of manslaughter which is a minor cognate offence. He relied on the case of Ojok Micheal vs. Uganda, CACA No. 19 of 2011, the Court of Appeal reduced murder to Manslaughter and then sentenced to 8 years and that this court be pleased to find the sentence harsh and excessive. He also relied on the case of Kamya Abdallah & Ors vs. Uganda, SCCA No. 24 of 2016 to distinguish murders of mob justice from other murders that he called pre meditated.

On sentence, counsel for the $2^{nd}$ appellant submitted that this was a proper case to warrant the interference of this court in the Court of Appeal's exercise of discretion as a sentencing court. He based his argument on this court's decisions in **Ssekitoleko Yuda Tadeo** & Ors vs Uganda, SCCA No. 33 of 2014, Kiwalabye Benard vs. Uganda, SCCA No. 142 of 2007, Kizito Senkula vs. Uganda SCCA No. 24 of 2007 where the Court held that it can only interfere with the exercise of discretion if it is satisfied that there was a failure to exercise discretion, or a failure to take into account a material consideration, or an error in principle. He submitted that the court of Appeal's failure to consider the period spent on remand as required under article 23(8) constituted a failure of discretion and a failure to take into account a material consideration. He thus invited the Court to allow the appeal, substitute the conviction for murder with that of manslaughter, set aside the 20 years' imprisonment sentence imposed by the Court of Appeal and substitute it with a sentence of 15 years' imprisonment.

$\mathsf{S}$

#### Respondent's case;

Mr. Peter Mugisha Bamwine, SA, did not oppose the appeal on illegality of sentence. He conceded to the fact that the Court of Appeal decision fell short of the consideration of the period spent on remand as required under Article 23(8).

In response to the $2^{nd}$ appellant's $2^{nd}$ ground of appeal against conviction, counsel contended that the court rightly convicted the appellants for murder after establishing that all the ingredients of murder were present against the appellants. He further contended that the $2^nd$ appellant's reliance on **Kamya Abdallah vs. Uganda** (supra) was misleading both in law and in principle.

Counsel prayed Court to disallow the $2^nd$ appellant's appeal against conviction, allow the appeal against sentence, to set aside the 20 years sentence for being illegal and substitute it with a 25-year sentence from which this Court can deduct the period spent on remand.

#### **CONSIDERATION OF COURT:**

The 1^st appellant's appeal is solely based on illegality of sentence whereas the $2^nd$ appellant's appeal is against both conviction and illegality of sentence.

We wish to first deal with the $2^{nd}$ appellant's $2^{nd}$ ground of appeal. We will reproduce it for easier reference.

"The learned justices of appeal erred in law when they failed in their duty to reappraise mob justice evidence in mitigation of sentence, thereby wrongly sentenced the appellant basing on murder instead of manslaughter imposing excessive 20 years' custodial imprisonment without deducting three years' remand occasioning a miscarriage of justice.

The gist of this ground is the $2^{nd}$ appellant's dissatisfaction with the Court of Appeal's alleged failure to reappraise the evidence relating to mob justice.

It is on record that the second appellant appealed to the Court of Appeal, vide Criminal Appeal No. 202 of 2013 against both conviction and sentence. His grounds of appeal as contained in his Memorandum of Appeal read as follows:

$\leq 1.$ The learned judge of the high Court erred in law by not evaluating evidence adequately thereby failed to consider a fact that PW3 Tugabwire Lawrence could not see appellant from a far distance among the mob causing death of Ninsiima Edgar.

The learned judge of the High Court erred in law by $2.$ failing to consider appellant's evidence that appellant reached the scene of the crime after Ninsiima Edgar had died.

The learned judge of the High Court erred in law by 3. failing to consider circumstances of the death of the deceased

### Ninsiima Edgar by mob thereby sentenced appellant to a harsh excessive 37 years' imprisonment." (sic)

The first 2 grounds of appeal sought to challenge conviction for the offence of murder whereas the 3^rd ground was based on illegality of sentence.

At the hearing however, counsel for the $1^{st}$ appellant abandoned the first two grounds of appeal leaving only one ground based on only one ground which dealt with excessiveness of sentence.

The record of Appeal is indicative of said the abandonment of grounds as is illustrated below:

"Justice Bamugemereire; so are you going to stick to one.

Mr. Kunya: I will stick to one as per the instructions.

Justice Bamugemereire: So can I understand because I see 2 memos of appeal here and we need to know from the onset whether the memorandum of appeal dated $25^th$ July was an amendment or whether the other memorandum of appeal still stands the one of $21^{st}$ March

Mr. Kunya: My Lord, we shall use the one of $25^th$ July.

Mr. Rukundo: My Lords I will use the one drawn by Henry Kunya on 25^th July, 2016.

Justice Kiryabwire: Why don't we amend yours?

Mr. Rukundo: We pray my Lords that we amend the Memorandum, we seek leave of court to amend the

# Memorandum and allow us proceed on ground number 3 only and we go prayer B sentence be reduced.

Justice Kiryabwire: The amendment is hereby allowed by the court." (Emphasis mine).

It is clear that the $2^{nd}$ appellant's appeal in the Court of Appeal was heard and determined on the basis of one ground which was only concerned about the legality of the sentence.

Indeed, the Court of Appeal categorically stated in its judgment that:

### "This appeal is against sentence only. It is therefore not concerned with matters incidental to conviction. The conviction will thus not be disturbed therefore."

It is therefore, disturbing that the same Counsel Rukundo who appeared for the $2^nd$ appellant and abandoned the grounds of appeal concerning conviction could try to smuggle the abandoned grounds into this Court.

This is an abuse of court process and should not be entertained. Any submissions to that effect will therefore, be ignored.

We will only consider the question of legality of sentence which is common to both appellants.

It was the contention of both counsel for the appellants that the sentence meted out to the appellants was illegal on grounds that the Court of Appeal did not take into account the period the appellants spent on remand contrary to the requirements under the Constitution

Counsel further contended that the Court of Appeal's failure also went against this court's decision in the case of Rwabugande Moses vs. Uganda (supra) which required the arithmetic deduction of the period spent on remand from whatever sentence is passed by the court.

Counsel for the respondent conceded this ground.

The enabling law for the consideration of the period spent on remand is clearly stipulated under article 23(8) of the Constitution. It states as follows:

"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 in imposing the **term of imprisonment.**"(Emphasis mine).

This provision imposes a mandatory duty on the sentencing court to take into account the period the convicted person has spent on remand. The question for this court's determination is whether the Court of Appeal made its decision in compliance with Article 23(8).

Counsel for the appellants seemed to suggest that the Court of Appeal decision ought to have been done in compliance with this Court's decision in the case of Rwabugande Moses vs. Uganda (supra)

A question then arises as to whether the case of Rwabugande Moses vs. Uganda (supra) was applicable to the Court of Appeal as at 21st October, 2016 when the decision was made.

In determining whether the aforesaid decision was applicable, one would have to look at the date the decision in **Rwabugande Moses** vs. Uganda (supra) became law. In the case of Nashimolo Paul Kibolo vs. Uganda SCCA No. 46 of 2017, this court while dealing with a similar question had this to say:

"The decision was delivered on 3rd March, 2017. $In$ accordance with the principle of precedent, this Court and the courts below have to follow the position of the law from that date hence forth."

This clearly shows that **Rwabugande Moses vs. Uganda** (supra) could not have been applicable on 21st October, 2016, when the decision that is subject of this appeal was delivered

The interpretation of the phrase "taken into account" pre -Rwabugande Moses vs. Uganda (supra) did not require the sentencing court to apply a mathematical formula by deducting the exact number of years spent by a convict on remand from the sentence to be awarded by the trial court.

This is clearly brought out in this Court's decision in Katende Ahamad vs. Uganda, SCCA No. 6 of 2004 in which the Court clearly stated as follows:

"In Article 23(8) of the Constitution, the words "to take into account" does not require a trial court to apply a mathematical formula by deducting the exact number of years spent by an accused person on remand from sentence to be awarded by the trial court. This was echoed in Bukenya Joseph vs. Uganda, Criminal Appeal No. 17 of 2011, where the same Court went further to state that:

It does not mean that taking the remand period into account should be mathematically such as that period from the sentence that Court would give. But it must be considered and that consideration must be noted in the judgment. (Emphasis $Ours)$

The requirement under the law was not for an arithmetic deduction of the time spent on remand but for the consideration of the period spent on remand and that consideration to be noted in the judgment. We therefore find that counsel for the appellants' reliance on the case of **Rwabugande Moses vs. Uganda** (supra) to challenge the legality of a decision passed in 2016 is therefore, untenable.

Be that as it may, the Court will proceed to determine the question as to whether the Court of Appeal decision was made in compliance with the prevailing interpretation of Article 23(8) as at $21^{st}$ October, 2016.

The Court of Appeal in sentencing the Appellants had this say:

"We allow this appeal. The sentence of 37 years imposed on each of the appellants is set aside. Instead a sentence of 20 years' imprisonment is imposed for each of the appellants. The sentence is to run from the date of conviction." (Emphasis mine)

The above quotation clearly shows that the Court of Appeal decision fell short of the requirement of consideration of the period spent on remand in the judgment as provided for under Article 23(8) and the case of Bukenya Joseph vs. Uganda (supra). This in itself renders it an illegality.

This therefore, brings the appellants' appeal within the operation of this court's decisions in Kyalimpa Edward vs. Uganda, SCCA No. 10 of 1995, Kamya Johnson Wavamuno vs. Uganda, SCCA No. 16 of 2000, Kiwalabye Bernard vs. Uganda, SCCA No. 143 of 2001, Wamutabanewe Jamiru vs Uganda, SCCA No. 74 of 2007, Karisa Moses vs. Uganda, SCCA No. 23 of 2016, Rwabugande Moses vs. Uganda (supra), Nashimolo Paul Kibolo vs. Uganda (supra) which permit the court to interfere with the discretion of the sentencing court only where the sentence is illegal or the court is satisfied that there was a failure of discretion, or failure to take into account a material consideration or an error in principle. We would therefore, nullify the 20 years' imprisonment sentence imposed by the court of Appeal.

This Court would have to impose a new sentence on the appellants. In so doing, the scope of power of the Court as provided for under

section 7 of the Judicature Act is similar to that vested under any written law in a court from the exercise of the original jurisdiction of which the appeal emanated. This position has been reiterated in cases such as Rwabugande Moses vs. Uganda (supra) and Nashimolo Paul Kibolo vs. Uganda (supra).

A question then arises as what interpretation of the phrase "taking in account the period spent on remand" as provided for under Article 23(8) should be applied?

Should the court apply the pre-Rwabugande approach seeing as the decision being appealed against was determined on 21st October, 2016 before Rwabugande became law?

Or should the court apply the decision of Rwabugande since it is the prevailing law today?

Similar questions were considered in the case of Nashimolo Paul Kibolo vs. Uganda (supra). The court in that case was faced with the duty of reconciling the decision of Rwabugande vs. Uganda (supra), the land mark case that made mandatory the arithmetic deduction of the time spent on remand from any sentence imposed which had been delivered on 3^rd March 2017, and the case of **Abelle** Asuman vs. Uganda, SCCA No. 66 of 2016, a decision delivered on 19^th April, 2018, a year after Rwabugande had become law but pre- Rwabugande interpretation while which applied the determining appropriate sentence.

After clarifying that the prevailing law was the position contained in the Land mark case of **Rwabugande Moses vs. Uganda** (supra), the Court held that the decision in Abelle Asuman vs. Uganda (supra) that applied the pre- Rwabugande interpretation was made per in curium to that extent.

This therefore means that where this Court sets aside the sentence imposed by the Court of Appeal under an old law regime, and is charged with the duty of imposing a new sentence, the court is duty bound under the doctrine of horizontal precedent and stare decisis to apply the prevailing law at the time of imposition of new

It follows by implication that this applies to interpretation of the phrase 'taking into account period spent on remand' as enunciated in Rwabugande.

So how much time did the appellants spend on remand?

According to the Sentencing Order at page 72-73 of the Record:

## "I deduct therefrom a period of 1 and a half years spent on remand."

At the Court of Appeal, Mr. Kunya, Counsel for the 1^st appellant stated as follows:

"My Lords we have made an error, it is not one and a half... but it is supposed to be 2 and a half when you do the calculations."

Counsel Rukundo in his submissions to this court mentions 3 years on remand.

Counsel Ayorekire also talks of 3 years on remand.

Learned Counsel for the respondent, on the other hand, stated that the time spent on remand was 2 years, 5 months and 17 days.

Needless to say, it is important to harmonize the period spent on remand. Not just to harmonize for its sake but because it is important for court to base itself on accurate information. It is especially important when faulting a lower court for not taking into account time spent on remand. That period spent on remand must be known accurately. (See **Rwabugande Moses vs. Uganda** (supra))

What is on record is that the file was sanctioned on $8^th$ June, 2011. The sentencing was done on $28^{th}$ November, 2013. The time spent on remand is therefore 2 years and six months, rounding off to the nearest month.

We therefore set aside the illegal sentence of 20 years.

We have evaluated both the mitigating and aggravating factors including the fact that the appellants were $1^{st}$ offenders, and young men with prospects for rehabilitation.

We therefore, find that a sentence of 22 years and six months will be appropriate under the circumstances for each of the appellants. In line with the requirement in the case **Rwabugande Moses vs. Uganda** (supra), we arithmetically deduct the 2 years and 6 months $\frac{1}{2}$ that the appellants spent on remand

Each of the appellants will therefore serve a period of 20 years running from the date of conviction.

We so order.

Dated at Kampala this....................................

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Hon. Justice Stella Arach Amoko

JUSTICE OF THE SUPREME COURT

Hon. Justice Rubby Opio Aweri

JUSTICE OF THE SUPREME COURT

Hon. Justice Faith Mwondha

JUSTICE OF THE SUPREME COURT


Hon. Justice Night Percy Tuhaise

JUSTICE OF THE SUPREME COURT

$\frac{1}{\text{E}}$

JUSTICE OF THE SUPREME COURT