[2025] UGCA 187

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASINDI

(Coram: Dr. Flavian Zeija, DCJ, C Gashirabake & K K Katunguka, JJA)

## CRIMINAL APPEAL NO. 0196 OF 2025

#### BETWEEN

BARONGO JOHN :::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### AND

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

(An appealfrom the judgment of the High Court of Uganda at Masindi (B J Rugtema, J) in Criminal Session No. 0066/2017; delivered on the 7th day of October 2017)

### JUDGMENT OF THE COURT

#### Introduction

- l. The appellant herein, was indicted and convicted of murder contrary to sections 188 and 189 of the Penal Code Act and sentenced to 30 years' imprisonment less the remand period. - 2. The facts as per the record of proceedings are that, on the 241812016 at around 6:00 pm, Bagira Geoffrey (PWl) left home at Kikunya village to Nyakabale trading Centre to buy juice and Pepsi sweets for the deceased's wife, who had flu, and was held by rain. He later decided to brave the rain and return home. He found the security lights off and decided to use the flashlight on his phone to enter the dark house. He noticed the solar battery was missing and the bedroom was empty save for his 3-year-old child. He went out to check on the

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solar outside, whereupon he found his wife with a rope tied around her neck looped to the roof of the verandah timber with her knees on the ground, dead.

3. PWI rushed to his brother Mugisha Godwin's (PW2) place and told him what he had seen. PW2 then told him that Bagira's deceased wife had rung him and told him that she had seen the appellant removing the solar panel from the roof and bulbs. The case was reported to police, and the appellant was affested by the community. His house was searched by police where a red T-shirt, a pair of trousers and a plain shirt; all with stains of blood, were recovered. The appellant was charged, tried, convicted and sentenced to 23 years and I I months imprisonment after court considered the 6 years and I month that he had spent on remand. The Appellant appealed against the sentence, on the ground that: The Learned trial judge erred in law and fact in sentencing the Appellant to a harsh and excessive sentence of30 years.

### Representation

4. At the hearing of the appeal, the learned Chief State Attorney Fatinah Nakafeero appeared for the Respondent while learned Daniel Omara appeared for the Appellant on State brief. The appellant was present in court.

## Submissions for the Appellant.

5. Counsel for the Appellant submitted that the sentence of 30 years less the period spent on remand was harsh and excessive because the Appellant was a firsttime offender, still a young man of 24 years old with much time to reform. That at the time he comes out of prison he would be around 43 years. He prayed that the conviction and sentence be quashed, and the appellant released from custody.

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## Respondent's submissions

- 6. Counsel for the Respondent raised a preliminary objection to the effect that; the ground of appeal raised by the Appellant grossly offends the law regarding appeals for no leave to appeal against sentence only was sought, pursuant to section 132(l)(b) of the Trial on Indictment Act Cap.23. and prayed that the appeal is struck out. - 7. Counsel submitted that in arriving at the sentence of 23 years and I I months imprisonment, the Trial Judge had a compressive consideration of both the mitigating (the appellant being a first-time offender, age and the period spent on remand) and aggravating factors (the degree of injury and the manner of the injury that was inflicted). Further, the appellant had been indicted for murder, which attracts a maximum penalty of death. Counsel finally submitted that the sentence of 23 years and I I months imprisonment passed to the appellant was not harsh. He cited Boshasha Shortf Vs. USandaTSCCA No.82 of 2018.

## Appellant's submission in rejoinder

8. [n reply to the preliminary objection, counsel for the Appellant cited Rule 43 of the Judicature (Court of Appeal Rules) directions, to wit: "subject to sub rule (3) of this rule and to any other rule allowing informal applications, oll applications to the court shall be by motions, which shall state the grounds of the application"; and rule 43 (3) which provides that: "This rule shall not apply to applications made during the course of the hearing, which moy be made informally'.

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9. Counsel conceded that while no application for leave was made before filing the said memorandum of appeal, the said application for leave to appeal against sentence could still be made informally during the hearing of the appeal. Counsel prayed that in interest ofjustice the Appellant be given an opportunity during the hearing to make an informal oral application for leave to appeal against sentence, and that the appeal be decided on its merits.

# Decision on the preliminary objection.

10. The preliminary point of law is based on section 132(1Xb) of the Trial on Indictment Act which provides: "An accused person may, with leave of the Court of Appeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court, other than a sentence fixed by law"

In Mubiru v Uganda (Criminal Appeal No.374 of 2019) [20231 UGCA ⁵⁷ (22 February 2023) this court held that; 'It appears that the provision is not mandatory and will not, in all cases result into an appeal being dismissed as prayed.'; We agree.

The preliminary objection is therefore not sustained and is dismissed.

### Consideration of the merits of the Appeal.

- ll. The duty of this court is to reappraise the evidence, reconsider the materials before the Trial Judge and draw inferences of fact; and then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. (See Rule 30(1) of the Rules of the Court and Kifamunte Henry v Uganda, Supreme Court Criminal Appeal No. 10 of 1997). - l2.ln Kyalimpa Edward versus Uganda, Criminal Appeal No. l0 of 1995, the Supreme Court referred to R vs. De Haviland (1983) 5 Cr. App. R(s) 109 and

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held: "An appropriate sentence is a matter for the discretion of the sentencing Judge. Each case presents its own focts upon which a judge exercises his discretion. It is the practice that as on appellate court, this Court will not normally interfere with the discretion of the trial Judge unless the sentence is illegal or unless Court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount to an injustice: (see also Ogalo s/o Owors vs. R (1954) 21 E. A. C. A. 270 and R vs. Mohammed Jomal (1948) 15 E. A. C. A. 126'.

- 13. In the instant case, Counsel for the Appellant contends that the sentence of 30 years less the remand period is harsh and excessive after consideration of the mitigating factors and the nature in which the crime was committed. The Constitution (Sentencing guidelines for Courts of Judicature) (Practice) Directions,2013,3'd schedule, provides that the sentencing range for murder, (after taking into account the factors aggravating or mitigating the sentence) is 30 years and maximum being death. - 14. The trial Judge stated: "The accused is a I't offender aged 24 years and therefore in his productive stage of ltfe. He has been on remandfor 6 years and therefore, is entitled to have this period deducted from whatever sentence this court will consider as oppropriatefor him. The accused has, on the other hand, been convicted of a serious offence of murder that attracts a death sentence as a maximum. However, considering the circumstances surrounding this case which include the age of the accused as 24 years, signtfying he has a chance to reform and the regime of sentence regarding murder convicts; Ugondo Vs Obong Tom H. C. Crim Case No. 124 /2014 and Ahsrikundira Yustine Vs Uganda, [2018] UGSC 49 where the appellant murdered her husband in cold

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blood, the supreme court reduced a death sentence to 30 years. Uganda Vs Lydia Draru, H. C. Crim. Case No. 404/10, Akbar Hussein Godi Vs Uganda S. C. Crim. Appeal No. 3/2013, (the convict had killed his wife), the convicts of murder were sentenced to 25 years. This is therefore not a case for a death sentence. In the premises, I consider 30 years imprisonment as a detenent and appropriate sentence for AI. Taking into account that he has been on remand for a period of 6 yeors and I month, he will serve a sentence of 23 years and Il months term of imprisonment. Right of Appeal explained. "

- l5. The learned Trial Judge did weigh the mitigating factor of the appellant's age against the aggravating factors and exercised the discretion of imposing a lesser sentence of30 years and further deducted the period spent on remand. - 16. In the circumstances, we find no reason to interfere in the sentence imposed by the leamed trial Judge.

The appeal has no merit and is accordingly dismissed. n,c. The Appellant shall continue to serve the sentence handed to him by^Jrial Court.

We so order.

| Dated this ).3 | Eh | r4 v-. -t-,<br>day of J. | 202s. | |----------------|----|--------------------------|-------| | | | | | | | | | | | | | FLAVIAN ZErJA (PhD) | |

Deputy Chief Justice

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# CHRISTOPHER GASHIRABAKE

Justice of Appeal

## KETRAH KITARIISIBWA KATUNGUKA

Justice of Appeal

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