[2024] UGSC 47

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

[CORAM: TIBATEMWA-EKIRIKUBINZA, TUHAISE, CHIBITA, MUSOTA, MADRAMA; JJSC]

#### CRIMINAL APPEAL NO. 47 OF 2021

#### **BETWEEN**

BOSSA ABDUL::::::::::::::::::::::::::::::::::::

#### AND

UGANDA:::::::::::::::::::::::::::::::::::

(An appeal from the judgment of the Court of Appeal (Kiryabwire, Bamugemereire: JJA and Kasule; Ag. JA) dated 06^th August, 2021 in Criminal Appeal No. 32 of 2015.)

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

This is an appeal against sentence arising from the decision of the Court of Appeal which upheld the concurrent sentence of 23 and 26 years' imprisonment imposed on the appellant by the High Court in Criminal Session No.25 of 2015 for the offences of Murder $c/s$ 188 and 189 and Aggravated Robbery c/s 285 and 286 of the Penal Code Act respectively, pursuant to a Plea Bargain Agreement.

#### **Background:**

The brief background is that, on 29th June, 2013 at Wamala Zone, Nabwem sub count5r in Wakiso District, the appellant together with four others killed and robbed a one Ainemanyi Isaac of 4O,OOO,00O/= (forty million shillings) which belonged to Kasese Distillers company Ltd where the appellant and the deceased were employed. Subsequently, the appellant was indicted, tried and convicted on his own plea of guilt for the offences of Murder c/s 188 and 189 of the Penal Code Act, Cap 12O and Aggravated Robbery c/s 285 and286(21 of the Penal Code Act. Pursuant to a Plea Bargain Agreement, the appellant was sentenced to 23 years and 5 months for murder and 26 years and 5 months for aggravated robbery each sentence was to be served concurrently. His appeal to the Court of Appeal against sentence was unsuccessful hence this appeal.

## Ground ofAppeal:

The sole ground of appeal in the appellants' Memorandum of Appeal is that:

1. The Learned Justices of Appeal erred in law failing to take into account the sentence of 14 yearst imprisonment agreed upon in the Plea Bargain Agreement between the Prosecution and the Appellant and instead lmposed a sentence of 26 years and 5 months' lmprlsonment a sentence which is deemed illegal, manifestly harsh and excessive in the circumstances thereby occasioning a miscarriage of Justice.

The appellant prayed that the appeal is allowed, the illegal, harsh and excessive sentences of23 years and 5 months and26 years and 5 months' imprisonment against the Appellant be set aside or substituted with one this Honourable Court deems appropriate.

### Representation:

At the hearing, Mr. Emmanuel Muwonge represented the appellant while Mr. Innocent Aleto who held brief for Mr. Kyomuhendo Joseph, Chief State Attorney represented the respondent. Both Counsel adopted their written submissions filed in Court.

## Appellantts submissions

Counsel for the appellant faulted the learned Justices for upholding a sentence which was not agreed upon in the Plea Bargain Agreement. He argued that the appellant agreed to a sentence of 14 years' imprisonment however he was sentenced to a higher sentence of 23 years and 5 months and 26 years and Smonths imprisonment for the offences of murder and aggravated robbery respectively. This sentence was therefore illegal and manifestly hash.

Counsel further argued that the learned Justices failed to address the fact that the Plea Bargain Agreement was not on record yet tJ:e sentence that was agreed to goes to the crux of the matter hence leading to a miscarriage of Justice. Counsel argued that it was not enough that the learned Justices were convinced that the contents of the Plea Bargain Agreement were sufhciently recorded as part of the record yet the document itself was missing.

Counsel therefore invited Court to allow the appeal and pass an appropriate sentence or impose the 14 years' sentence as agreed in the agreement.

## Respondents Submissions

Counsel for the respondents argued that the learned Justices were alive to their duty and properly re-evaluated the evidence and made their own findings. The sentence imposed was not based on any wrong principles.

Counsel argued that whereas there was no Plea Bargain Agreement on record, the learned Justices were guided by the record of appeal and confirmed that the Plea Bargain Agreement was tendered as P. Exh No.1 at trial. Counsel submitted that the appellant did not deny the fact that a Plea Bargain Agreement was executed. The procedure of recording the plea of guilty was observed, the Plea Bargain Agreement was explained together with its contents. Counsel submitted that the proceedings were interpreted and explained to the appellant by the court interpreter in the language he was comfortable with which was Luganda.

Counsel contended that the appellant was present in court and he did not dispute/object to the fact that he, his advocate and the prosecution had agreed on the years stipulated in the PIea Bargain Agreement. The implication of the appellant's silence is that they agreed to the 25 years' imprisonment for murder and 30 years' imprisonment sentence for aggravated robbery. Counsel submitted that the missing of the Plea Bargain Agreement should not affect the substantive justice when the record of appeal is very clear. Counsel invited Court to dismiss this appeal.

## Consideration by Court

We have addressed ourselves to the record and the submissions of counsel.

The appellant's complaint is that the 14 years' of imprisonment agreed upon in the Plea Bargain Agreement were not the years imposed on him and therefore the sentence was illegal and hash.

Counsel for the respondent opposed this contention and firmly supported the decisions of the lower courts. He argued that what was agreed upon was 25 years'imprisonment for murder and 30 years' imprisonment for aggravated robbery.

It is trite as a matter of principle that an appellate court will normally not interfere with exercise of discretion by the trial court in sentencing unless it is demonstrated that the court acted on a wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is illegal or manifestly excessive to amount to an injustice. See: Rwabugande Moses v Ugaada, No.25 of 2Ol4(SCl and Sekandi Hassan v Uganda, No.25 of 2O19(SC!.

The record of appeal indicates that the learned justices were alive to their dut5r in resolving the appeal. In re-evaluating the evidence, the learned justices at page 7-9 of the judgment resolved the appellant's contention as follows:

"Slhat is at variance ls that counsel for the Appellant argued 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, contended that the gentence agreed upon in the Plea Bargain Agreement was

25 years for Murder and 3O years for Aggravated Robbery as is reflected on page 19 ofthe Record ofProceedings in the trial Court. From the Court Record, it is worth noting that the Appellant appeared in court on 23rd January, 2O15 for Plea Taking and it was on the same date that the Prosecution informed the Court that the parties had a Plea Bargaln Agreement executed between them in respect of 25 years for Murder and 3O years for Aggravated Robbery. The Record does not show that there was an objection 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 Prosecutlon. 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 he conflrmed the same before the trial Judge admitted the Agreement ln evidence as Exhtbtt P. Exh. l. From the above, it is clear that the trlal Judge sentenced the Accused taking lnto 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 2O16, the Supreme Court referred to the case of Kiwalabye Bernard v. Uganda Supreme Court Criminal Appeal No. 142 of 2OOZ where it was held that an Appellate Court should not interfere with the sentencing discretion....... 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 Bargaln Agreement had been disregarded. As it is, the Plea Bargain Agreement Exhibit P. Exh. 1 is not part of the Record of Appeal and this is an unfortunate shortfall. This omission notwithstanding, the Record ofAppeal clearly states, at page 19 that the Plea Bargain Agreement agreed to the sentences of25 years for Murder and 3O years for Aggravated Robbery. The Appellant has not adduced any evidence to the contrary.

F"urthermore, we are satisfied that pages 14 - 15 of the Record of Appeal show that the procedure for recording a Plea Bargain Agreement was obserued 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 flrst 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 aie 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 procedure as to the admission of the said Agreement was followed."

Under Section 5(3) of the Judicature Act an appellant is precluded from appealing against severity of sentence to this Court. Nevertheless, a bargain had been clearly struck between the parties with an agreed voluntary mutual understanding. Therefore, issues of

harshness and excessiveness in the instant case would not arise in the circumstances.

As a result, this ground fails and the appeal is accordingly dismissed.

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

L'usalennive. Prof. Lillian Tibatemwa-Ekirikubinza

JUSTICE OF THE SUPREME COURT

Mulinia Percy Night Tuhaise

JUSTICE OF THE SUPREME COURT

Mile Palatz

JUSTICE OF THE SUPREME COURT

and western.

Stephen Musota

JUSTICE OF THE SUPREME COURT

Christopher Madrama

#### JUSTICE OF THE SUPREME COURT

The Judgment delivered as directed<br>by the How Justicies

JAP 20 $n$ latin