[2025] UGCA 150

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBARARA

# CRIMINAL APPEAL NO. 186 OF 2016

BYAMUGISHA JOHN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA ::::::::::::::::::::::::::::::::::: (Appeal from the decision of the High Court of Uganda at Mbarara before David Matovu, J dated 20^th December, 2016 in High Court Criminal Case No. 297 of 2015)

CORAM:

HON. MR. JUSTICE MOSES KAZIBWE KAWUMI, JA HON. LADY JUSTICE FLORENCE NAKACHWA, JA HON. LADY JUSTICE CORNELIA SABIITI KAKOOZA, JA

# JUDGMENT OF THE COURT

#### **Background**

1. This is an appeal from the decision of the High Court in Criminal Case No. 297 of 2015 sitting at Mbarara in which the Appellant was convicted of murder contrary to section 188 and 189 of the Penal Code Act, Cap. 120 and sentenced to 25 years' imprisonment following a plea bargain agreement.

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2. The facts of the case while in the lower court were that on the material night of 19^th March, 2015 at 10:00 p.m, the Appellant entered the deceased's room in Kiyanja where she was a shop attendant and a fight broke out. When the neighbors heard noise, they requested the Appellant to open but he refused. The Appellant was seen leaving the room with a knife in his hand. The matter was then reported to police as the body was found in the room. The Appellant was arrested from hiding, and before the trial court, he admitted having committed the offence as indicted.

3. At the commencement of the trial, the Appellant opted to enter a plea bargain agreement in which he pleaded guilty and agreed to a custodial sentence of 25 years' imprisonment, which was approved by the trial court.

# **The Appeal**

4. The Appellant, with leave of this court, appealed against the sentence on the sole ground that:

The trial Judge erred in law and in fact when he convicted the Appellant based on a plea bargain agreement without following a proper procedure leading to a miscarriage of W *iustice.*

5. At the hearing of the appeal, Counsel Lydia Ahimbisibwe from M/s Abimbisibwe & Agaba Co. Advocates appeared for the Appellant. The Respondent was represented by Counsel Nahurira Jacob from the Office of the Director of Public Prosecutions.

# Appellant's submissions

6. The Appellant's counsel submitted that according to Rule 12 of the Judicature (Plea Bargain) Rules, 2016, it is mandatory for the trial Judge to explain to the accused person his or her rights that are going to be waived. That according to the record of proceedings, the trial Judge did not adhere to Rule 12 of the Rules which makes the entire proceedings illegal. That it is the duty of the trial Judge to find out whether the contents of the plea bargain agreement were explained to the accused to avoid miscarriage of justice. That this can only be done when the trial Judge conforms to Rule 12 of the Judicature (Plea Bargain) Rules, 2016. (Counsel cited the case of Wesamba Adan v. Uganda, Criminal Appeal No. 0101 of 2020).

7. Counsel further argued for the Appellant that a plea bargain agreement is an agreement like any other agreement thus the Contracts Act, Cap. 284, should govern the same and a component

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of consent should be the governing factor which should be proved by the trial Judge at the plea taking. That in most cases the plea bargain sessions are conducted in prisons where the accused may have less bargaining power and the accused may end up signing the agreement without his consent.

8. The Appellant's counsel also contended that the plea bargain agreement in this case was not translated to the accused in the language he understood. That according to page I7 of the record of proceedings, the Appellant's advocate signed to certify that he had translated the agreement without indicating the language that was used and that it cannot be presumed that every advocate understands the language of the accused person. That the trial Judge ought to have inquired whether the plea bargain agreement was translated to the Appellant. Counsel prayed that this court finds that the trial was illegal and the same should be set aside and the accused acquitted. Counsel further prayed that this court be pleased to find that the accused was convicted on a plea bargain agreement which was illegal, irregular and he suffered a miscarriage of justice.

# **Respondent's submissions**

The Respondent's counsel disagreed with the arguments of the Appellant and submitted that the learned trial Judge followed a

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proper procedure in convicting the Appellant and sentencing him based on his freely negotiated plea bargain agreement, and there was no miscarriage of justice occasioned to the Appellant. Counsel argued that the Appellant is bound by the plea bargain agreement which he freely entered into. The Respondent prayed that this appeal be dismissed, the conviction upheld, and the sentence passed by the learned trial judge be confirmed.

#### **Court's analysis**

9. This being the first appellate court, we are cognizant that this court is duty bound to review the evidence on record and reconsider the material before the trial Judge, including the decision of the trial court, before arriving at its own decision. (See Rule 30 $(1)$ (a) of the Judicature (Court of Appeal Rules) Directions, S. I. 13-10). In the case of Kifamunte Henry v. Uganda, Supreme Court Criminal **Appeal No. 10 of 1997**, the Supreme Court held that on a first appeal thus:

"This court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The Appellate Court must then make up its own mind not disregarding the judgment appealed from, but carefully $\mathcal{M}$ *weighing and considering it."*

10. The Appellant's counsel faults the learned trial Judge for failing to follow the procedure in a plea bargain agreement. Plea Bargain is regulated by the Judicature (Plea Bargain) Rules, S. I. 43 of 2016. Rule 4 of the Judicature (Plea Bargain) Rules, defines plea bargain 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 offense, or recommend a particular sentence subject to approval by court. It further defines a plea bargain agreement to mean an agreement entered into between the prosecution and an accused person regarding a charge or sentence against an accused person.

11. Rule 8 (1) of the Rules provide for court's participation in plea bargain discussions and Rule 8(2) provides that parties shall inform court of the ongoing plea bargain negotiations and shall consult the court on its recommendations with regard to a possible sentence before the agreement is brought to court for approval and recording.

12. The Appellant's counsel submitted that the learned trial Judge failed to comply with Rule 12 of the Judicature (Plea Bargain) Rules,

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2016. Rule 12 of the Judicature (Plea Bargain) Rules, provides as follows:

"1) Subject to the procedure prescribed in the schedule 2, the Court shall inform the accused person of his or her rights, and shall satisfy itself that the accused understands the following (a). the right to-

i. to plead not guilty, or having already so pleaded, the effect of that plea:

ii. to be presumed innocent until proved guilty;

iii. to remain silent and not to testify during the proceedings not to be compelled to give self-incriminating evidence to a full trial; and

iv. to be represented by an advocate of his or her choice at his or her expense or in a case triable by the High Court, to legal representation at the expense of the state.

b) that by accepting the plea bargain agreement, he or she is waiving his or her right as provided for under paragraph (a);

c) the nature of the charge he or she is pleading to;

d) any maximum possible penalty, including imprisonment, fines, community service order, probation or conditional discharge; e) any applicable forfeiture;

f) the Court's authority to order compensation and restitution or

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both; and

g) that by entering into a plea bargain, he or she is waiving the right to appeal except as to the legality or severity of sentence or if the Judge sentences the accused outside the agreement.

2) The charge shall be read and explained to the accused in a language that he or she understands and the accused shall be invited to take plea.

3) The prosecution shall lay before the Court the factual basis contained in the plea bargain agreement and the Court shall determine whether there exists a basis for the agreement.

4) The accused person shall freely and voluntarily without threat or use of force, execute the agreement with full understanding of all matters.

5) A plea Bargain Confirmation shall be signed by the parties before the presiding Judicial Officer in the Form set out in the Schedule 3 and shall become part of the Court record and shall be binding on the prosecution and the accused."

13. In Malinga John Robert v. Uganda [2023] UGCA 255 (6 September 2023), this court emphasized on the importance of explaining the constitutional right of an accused person who has pleaded guilty in a plea bargain or otherwise. It held at page 13 of

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its judgment as follows:

"It is important that an accused person who wishes to plead guilty whether under a plea bargain agreement or otherwise should be explained to properly about his or her constitutional rights to a fair trial and confirm that his plea is unequivocal with full knowledge of the consequences thereof. The Court is obliged under the rules to embrace plea bargain any time before sentence when either party before it expresses interest in the process unless it is intended to pervert the cause of justice. See Inensko Adanns V Uganda, HCCA No. 004 of 2017 cited with approval by this Court in Luwaga Sulaiman V Uganda, CrlmInal Appeal No. 858 of 2014"

14. In the instant case, the plea bargain agreement which forms part of the lower court record is very clear to us, followed by the trial court's findings and order and it states as follows:

## "COURT'S FINDINGS AND ORDER

The court, having reviewed this form and any addenda, and having questioned the accused concerning accused's constitutional rights, finds that the accused has expressly, knowingly, understandingly, and intelligently waived and given up his or her constitutional and statutory rights. The

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court finds that the accused's plea(s) and admission(s) are freely and voluntarily made with an understanding of the nature and consequences thereof, that any allegations as indicated in this form are true, and that there is a factual basis for the plea(s) and admission(s). The court accepts $\frac{1}{2}$ the accused's plea(s). The court orders that this form be filed and incorporated in the docket by reference as though fully set forth therein.

David Matovu

Name and signature of Judge

Date: 8/7/2016"

15. Having carefully perused the plea bargain agreement which is the subject of this appeal and the Judge's findings extracted above, we have not found any fault in the plea bargain agreement or the procedure followed by the Court to endorse and enter it on the record. Therefore, we hold that the plea bargain agreement by which the Appellant agreed to plead guilty remains valid and he is bound by its terms. This is because the Appellant accepted the plea bargain fully aware of the facts of the case, freely, voluntarily and well aware of its legal consequences on his constitutional and statutory rights. Allowing a convict to appeal against a sentence

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which he or she freely and voluntarily agreed to without sufficient reason would undermine the purpose of plea bargain in the criminal justice system in Uganda. This court cannot condone such sabotage.

16. However, we note with concern that though the learned trial Judge considered the period the Appellant spent on remand, he wrongly deducted the said period by omitting 2 months from the subtraction. Had the trial Judge rightly subtracted 1 year and 3 months' period spent on remand by the Appellant from the 25 years' imprisonment agreed upon during the plea bargain, he would have found that the final correct years the Appellant was to serve as his sentence would have been 23 years and 9 months' imprisonment and not 23 years and 11 months' imprisonment. Although this error was not mentioned by either party in this appeal, we find it appropriate under section 11 of the Judicature Act, Cap 16 to put it right and hereby hold that the Appellant shall serve a final sentence of 23 years and 9 months' imprisonment which shall run from the date of conviction by the trial court.

17. Pursuant to the foregoing analysis, we find no merits in this $eMS$ appeal and it is hereby dismissed. We so rule.

Dated at Mbarara this ....................................

## $\mathbb{C}$

**Moses Kazibwe Kawumi**

**JUSTICE OF APPEAL**

**Florence Nakachwa**

**JUSTICE OF APPEAL.**

CHISSON

Cornelia Sabiiti Kakooza

**JUSTICE OF APPEAL.**