[1994] UGSC 26

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA Los chelay on<br>AT MENGO

CORAM: MANTINDO, D. C. J., ODER, J. S. C. & PLATT, J. S. C.

# CRIMINAL APPEAL NO. $5/93$

## BETWEEN

| SAMALI BAMUTIIRE | | | |------------------------|---------------|------------| | HENRY KALEMA BAMUTIIRE | $\cdot \cdot$ | APPELLANTS | | CHRISTINE BAMUTIIRE | | |

## $A$ N D

**UGANDA**

RESPONDENT

ensidiene d

$\mathcal{J}$

(Appeal against conviction and sentence of the High Court decision holden at Kampala (Hon. Mrs. Justice Mpagi-Bahigeine) dated 26/3/93 from original (H. C. CR. Ss. No. $263/92$ )

# JUDGMENT OF THE COURT:

$...$

Villice

The appellants Samali Bamutiire and Christine Bamutiire were convicted of kidnapping with the intent to murder $c/6$ 235 (1)(a) of the Penal Code and sentenced, as we suppose, to death. The sentence as phrased on the record was "You shall be liable to suffer death according to law", which is a phrase taken from Section 235 itself, and was designed to provide the Court with the discretion whether or not to pass the death sentence. That discretion was not properly exercised.

On the question of the conviction of the appellants, it has been conceded by the state that the conviction as it stands cannot be supported. We think that its right. There was a break in the chain of places to which the deceased Lubowa

was $\ldots$ /2

was taken, as far as these appellants were concerned. The latter as responsible for taking the deceased to Mityana Police Station, and no further. Even so they were wrong to do that, as they concede, and hence it is agreed that the appellants were guilty of the lesser offence of kidnapping with intent to confine contrary to Section *2J6 of* the Penal Code.

Consequently, we quash the conviction of the appellants and set aside their apparent sentences, and substitute therefore a conviction for each appellant under Section *2J& of* the Penal Code for kidnapping with the intent to confine.

It is necessary now for ^a freah sentence to be imposed. The republic has submitted that the appellants had only been in remand for a short time. The merits of the case are such that, so it is said, though they are first offenders, the maximum sentence should be imposed.

Miss Musoke has submitted that the appellants have been in actual custody since February and ^March, 1986 resnectively. They in fact waited until ¹⁹⁹³ to be tried. They are first offenders. By now they have been in custody for ⁹ years, which is very near the maximum of 10 years imprisonment, provided by Section 236 of the Penal Code.

The history of the case is such that we should say that these long delays must be stopped. whether these appellants were under military or prison custody is immaterial in assessing this sentence. It is necessary to mark our disapproval of these long delayc •

Taking.......... /3

3.

Taking all the factors of this case into account, we impose such sentence as will result in the appellants' immediate release. They are to be released forthwith unless held for any other lawful cause.

We direct that a copy of this judgment should be sent to the Hon. The Attorney General.

Delivered at Mengo this 17th day of May, 199^\*

S. T. MANYINDO, DEPUTY CHIEF JUSTICE.

A. H. O. ODER, JUSTICE OF THE SUPREME COURT.

H. G. PLATT, JUSTICE OF THE SUPREME COURT.

I certify, that. this..is ^a true copy of The original.

AG. AGEIST. REGISTRAR1, SUPRRMR COURT. 27/V1995.