[2021] UGCA 213

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF LIGANDA

## **AT KAMPALA**

## CRIMINAL APPEAL No. 32 OF 2015

(Appeal from the decision of the Hon. Lady Justice Ibanda Nahamya in High Court $\mathsf{S}$ *Criminal Session Case No. 025 of 2015 sitting at Kiboga, dated 23^rd January, 2015)*

BBOSA ABDUL....................................

## **VERSUS**

UGANDA...................................

CORAM: $10$

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A.

HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, J. A.

HON. MR. JUSTICE REMMY KASULE, Ag. J. A.

# **IUDGMENT OF THE COURT**

#### **INTRODUCTION** $15$

This is a first Appeal. The Appellant, Bbosa Abdul was indicted and convicted on his own plea of guilty of the offence of Murder contrary to sections 188 and 189 of the Penal Code Act, Cap 120 and the offence of Aggravated Robbery

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contrary to sections 285 and 286(2) of the Penal Code Act, Cap 120 following a plea bargain agreement. On the 23^rd day of January 2015, the trial Judge sentenced the Appellant to serve an imprisonment term of 23 years and 5 months on count I and 26 years and 5 months on count II both to be served concurrently.

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# **BACKGROUND FACTS**

On 29^th June 2013, the Appellant connived with four others and robbed Ainemanyi Isaac of Ug shs $40,000,000/$ = (forty million shillings) in his house located in Wamala zone, Nabweru sub county in Wakiso District. At the time of the Robbery, Ainemanyi Isaac was shot in the head with two bullets and he died.

The Appellant and the deceased were employees in the same company, Kasese Distillers Company Ltd that deals in the distilling and distribution of the local gin known as waragi. The deceased was instructed by one of the company directors to take company products for sale in Ibanda District. For this reason, the deceased was assigned a company vehicle and a company driver, the

15 Appellant, to drive him with the products to Ibanda. The deceased proceeded to Ibanda, sold the products, but did not bank the money since it was already late. The money amounted to Ug shs 40,000,000/=. The deceased decided to return to Kampala with the money in cash to bank it the following day. The

Appellant was aware of all this. The Appellant connived with four others to steal $20$ the money and divide it amongst themselves. The Appellant and his friends had planned to intercept the deceased while on his way home and rob him of the company money but this initial plan did not work. The Appellant continued and drove the deceased to his home and he instead planned to execute the Robbery

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the following morning before the deceased could take the money to the bank. The following morning, the other four conspirators entered into the house of the deceased, robbed him of the company money and then shot him. The Appellant was aware of the entire plan though he was not among those who entered the house. He was given Ug shs 500,000/= (five hundred thousand

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The Appellant, recorded a charge and caution statement at the police. He was arraigned before the trial court for Plea Taking and he pleaded guilty to the offence of Murder contrary to sections 188 and 189 of the Penal Code Act, Cap

120 and the offence of aggravated robbery contrary to sections 285 and 286(2) $10$ of the Penal Code Act, Cap 120 following a plea bargain agreement which he had signed. He was convicted on his own plea of guilty and sentenced to 26 years and 5 months imprisonment.

Dissatisfied with the sentence of the trial Judge, the Appellant appealed to this Court.

# **Grounds of Appeal.**

shillings) as his share of the money.

The Appellant raised only one ground of Appeal for the determination of this court;

The learned trial Judge disregarded the sentence of 14 years imprisonment agreed upon in the plea bargain agreement between the parties and instead $20$ imposed a sentence of 26 years and 5 months imprisonment that was not agreed upon thereby leading to a miscarriage of justice.

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### **Representations**

Mr. Andrew Sebugwawo appeared for the Appellant while Ms. Sharifah Nalwanga Chief State Attorney appeared for the Respondent.

## **Submissions for the Appellant.**

- Counsel for the Appellant filed written submissions in which he submitted that $\mathsf{S}$ a plea bargain agreement was executed between him and the Respondent. According to the Plea Bargain Agreement, the Appellant and the State had agreed upon a sentence of 14 years imprisonment. However, counsel submitted that the trial Judge in rendering sentence disregarded the Plea Bargain - Agreement and sentenced the Appellant to serve a concurrent sentence of 26 $10$ years and 5 months.

Counsel for the Appellant prayed that this court enforces the Plea Bargain Agreement so that the Appellant's sentence can be reduced to 14 years of imprisonment.

#### **Submissions for the Respondent.** $15$

Counsel for the Respondent also filed written submissions in which it was contended that the sentence passed by the trial Judge was in line with what had been agreed upon by the parties in the Plea Bargain Agreement.

Counsel for the Respondent made reference to page 19 of the Record of Appeal as a basis for her argument. At page 19 of the Record of Appeal, the State, during the trial, made reference to page 13 of the plea bargain agreement which

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reflected that both parties agreed on a sentence of 25 years for the offence of Murder as well as a sentence of 30 years for the offence of Aggravated Robbery.

In addition, Counsel for the Respondent submitted that the Appellant confirmed to the court that his rights had been explained to him before he consented to the Plea bargain agreement. It is upon the Appellant's confirmation that the trial Judge admitted the Plea Bargain Agreement as an exhibit marked P. Exh.1.

Counsel for the Respondent further submitted that this Court has the powers to impose a sentence that it considers appropriate. For this proposition, Counsel relied on S.11 of the Judicature Act, Cap 13 and the case of Lwere **Bosco v. Uganda; Court of Appeal Criminal Appeal No. 531 of 2016.**

Counsel for the Respondent prayed that this court upholds the Plea Bargain Agreement and concurrent sentence of 30 years.

## **Findings and Decision**

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This is a first Appeal and this Court takes cognizance of the established $15$ principles regarding the role of a first Appellate Court.

**Rule 30(1)** of the **Judicature (Court of Appeal Rules) Directions SI 13-10** provides that the Court of Appeal, while determining a first Appeal from any decision of the High Court acting in its own jurisdiction, may reappraise the evidence and draw inferences of fact; and may, in its discretion, take additional evidence or direct that additional evidence be taken by the trial Court.

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The cases of **Kifamunte Henry v. Uganda, Supreme Court Criminal Appeal** No. 10 of 1997 and Pandya v. R. [1957] EA 336 and Bogere Moses and Another v. Uganda, Supreme Court Criminal Appeal No. 1 of 1997 in essence have established that a first Appellate Court must review/ rehear the evidence and consider all the materials which were brought before the trial Court, and come to its own conclusion regarding the facts, taking into account that it has neither seen nor heard the witnesses; and in this regard, it should be guided by the observations of the trial Court regarding the demeanor of witnesses.

$10$ We have borne the above principles in mind in resolving this Appeal.

Plea bargaining is regulated by the **Judicature (Plea Bargain) Rules, 2016**.

**Rule 4** of the **Judicature (Plea Bargain) Rules**, defines Plea Bargaining as the process between an Accused person and the Prosecution, in which the Accused person agrees to plead guilty in exchange for an Agreement by the Prosecutor

to drop one or more charges, reduce a charge to a less serious offence, or 15 recommend a particular sentence subject to approval by Court.

Once parties conclude a Plea bargaining process, the same is reduced into a Plea Bargain Agreement. Rule 4 further defines a Plea Bargain Agreement as one which is entered into between the Prosecution and an Accused person regarding a charge or sentence against an Accused person.

In the instant Appeal, the Appellant was, on his own plea of guilty, convicted of Murder and Aggravated Robbery and sentenced to serve a concurrent sentence of 26 years and 5 months following a Plea Bargain Agreement.


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$\mathsf{S}$ Counsel for the Appellant, in his written submissions, submitted that a Plea Bargain Agreement was executed between the Appellant and the State. For the Respondent it is also admitted that a Plea Bargain Agreement was signed and then tendered in Court at the trial and admitted as Exhibit P. Exh.1.

- $\mathsf{S}$ What is at variance is that counsel for the Appellant argues that the Appellant signed a Plea Bargain Agreement in which the agreed sentence was 14 years whereas counsel for the Respondent on the other hand, contends that the sentence agreed upon in the Plea Bargain Agreement was 25 years for Murder and 30 years for Aggravated Robbery as is reflected on page 19 of the Record - of Proceedings in the trial Court. $10$

From the Court Record, it is worth noting that the Appellant appeared in court on 23^rd January, 2015 for Plea Taking and it was on the same date that the Prosecution informed the Court that the parties had a Plea Bargain Agreement executed between them in respect of 25 years for Murder and 30 years for

Aggravated Robbery. The Record does not show that there was an objection $15$ made by counsel for the Appellant or the Appellant himself regarding the years agreed upon in the Plea Bargain Agreement as had been stated by the Prosecution.

In addition, pages 14 -15 of the Record of Appeal are clear as to the fact that the Plea Bargain Agreement was explained to the Appellant before he signed it and $20$ he confirmed the same before the trial Judge admitted the Agreement in evidence as Exhibit P. Exh.1.

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In the case of Luwaga Suleman v. Uganda, Court of Appeal Criminal Appeal No. 858 of 2014 this Court was persuaded by the High Court decision in Inensiko Adams v. Uganda HCCA No. 004 of 2017 where it was held that:

"...it is very important that an accused who wishes to plead guilty, whether under plea bargain or not, should be explained to properly about his or her constitutional rights to a fair trial and confirm that this plea is unequivocal *with full knowledge of the consequences thereof."*

In the instant Appeal, the trial Judge stated that:

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"I note also that you have volunteered to give evidence for the state and you are cooperating though still young but you need a long period of rehabilitating. I am inclined to reduce the sentence to 28 years for aggravated robbery ... The 1 year and 7 months spent on remand is deducted $\overline{a}$

Count I

*You will serve an imprisonment term of 23 years and 5 months.* 15

Count II

*You will serve an imprisonment term of 26 years and 5 months.*

Both to be served concurrently. So you will serve a cumulative sentence of 26 years and 5 months."

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From the above, it is clear that the trial Judge sentenced the Accused taking into consideration the years agreed upon in the plea bargain Agreement as Counsel for the Respondent submitted.

In the case of Karisa Moses v. Uganda Supreme Court Criminal Appeal No. 23 of 2016, the Supreme Court referred to the case of Kiwalabye Bernard v. $\mathsf{S}$ Uganda Supreme Court Criminal Appeal No.142 of 2007 where it was held that an Appellate Court should not interfere with the sentencing discretion of the trial Court unless the exercise of the discretion was such that it resulted into the sentence imposed being manifestly excessive or so low as to amount to a miscarriage of justice or where a trial Court ignored an important matter or $10$ circumstances which ought to have been considered while passing a sentence or where the sentence imposed was wrong in principle.

In the instant case, the Appellant appealed against the sentence of the trial Court on the ground that the sentence agreed upon in the Plea Bargain Agreement had been disregarded. As it is, the Plea Bargain Agreement Exhibit $15$ P. Exh.1 is not part of the Record of Appeal and this is an unfortunate shortfall. This omission notwithstanding, the Record of Appeal clearly states, at page 19 that the Plea Bargain Agreement agreed to the sentences of 25 years for Murder and 30 years for Aggravated Robbery. The Appellant has not adduced any evidence to the contrary.

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Furthermore, we are satisfied that pages 14 – 15 of the Record of Appeal show that the procedure for recording a Plea Bargain Agreement was observed before the Agreement was admitted into Court as part of the Record. In compliance with Rule 12 of the Judicature (Plea Bargain) Rules, the trial Judge

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first confirmed whether the Plea Bargain Agreement had been explained to the Accused and whether the Appellant had understood it. The Appellant confirmed that the Agreement had been explained to him. We are therefore convinced that the contents of the Plea Bargain Agreement were sufficiently recorded as part of the Record for them to be ascertainable and that the correct

$\mathsf{S}$ procedure as to the admission of the said Agreement was followed.

In the case of **Lwere Bosco v. Uganda, Court of Appeal Criminal Appeal No.** 531 of 2016, this Court held that failure to follow the procedure of recording a Plea Bargain Agreement by Court occasioned a miscarriage of justice which the Court could not condone. It was further held that:

" ... allowing convicts to appeal against sentences they freely and voluntarily agreed to in the first place without good reason would in our view undermine the relevance and objectives of plea bargaining in our criminal justice system."

We see no good reason for the Appellant to walk away from the parameters of the Plea Bargain Agreement that he freely and voluntarily entered into. In the $15$ final result, we find no reason whatsoever to interfere with the sentencing discretion of the trial Judge.

## Final Result.

This Appeal is dismissed.

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**Dated** at **Kampala** this $6$ day of $4$ 2021.

Jan Jan Jan Jan Jan Jan Jan Jan Jan Jan

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A.

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## HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, J. A.

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HON. MR. JUSTICE REMMY KASULE, Ag. J. A.

22 nd July 2021

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