[2024] UGCA 249

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO. 443 OF 2014 (Coram: Luswata, Kihika and Mugenyi, JJA)

## BYAMUKAMA FREDRICK ....................................

#### **VERSUS**

UGANDA::::::::::::::::::::::::::::::::::: (Appeal from the decision of Justice Bashaijja K. Andrew in the High Court of Mbarara HC Crim. Session No. 117 of 2012 dated 30^th October, 2012)

### **JUDGMENT OF THE COURT**

#### **Introduction**

The appellant was indicted and convicted of Murder contrary to section 188 & 189 of the Penal Code Act Cap 120, he was sentenced to 20 years' imprisonment.

### **Background**

The brief facts as ascertained from the record are that: A one Twikire Milton (deceased) together with the appellant were friends. They were both working as security guards with Millennium Company, attached to Mbarara Branch.

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On the 7rh day of July, 2011 the appellant went to a one Nabasa to borrow money in the sums of 80,000= where upon he deposited his ATM Card and the deceased stood as his guarantor.

On the 29th day of July, 201 1 the deceased went to Nabasa and told him that the appellant had sent him to pay the debt he owed her and thereafter retrieve his ATM Card. The deceased presented the appellant's identity card to prove that he was sent by the appellant, paid the ba-lance of UGX 96,000I= and he was given the ATM Card of the appellant. After getting the ATM Card, the deceased went and withdrew the accused's money amounting to UGX 47O,OOO l= which the appellant had deposited after selling his cow.

The deceased after withdrawing the appellant's money, told the appellant that he was quitting the job and was going back home. The appellant then decided to go to Nabasa to clear the loan and retrieve his ATM Card. He was however told that the deceased had taken it. The appellant went and checked in the bank and found that his money had been w'ithdrawn. The appellant and his friend a one Tibyaka decided to follow the deceased and the eventually caught up with him at Ntungamo town, Ntungamo district.

The appellant demanded for his money from the deceased who, however, refused to give it him. The appellant then pulled a knife from his trouser and stabbed the deceased in the neck. The deceased fell down and died instantly.

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On lookers, started assaulting the appellant. He was saved by the police who had rushed to the scene. The appellant was taken to Itojo hospital for treatment and the deceased's body was taken for postmortem. The cause of death was established to be severe bleeding following stab wound on the neck..

In his charge and caution statement the appellant admitted having committed the offence. The appellant was indicted for murder and sentenced to 20 years' imprisonment.

## Grround of Appeal

The learned trtal Judge erred in law and in fact when he imposed an illegal sentence of 2O years' imprisonment on the appellant without considerlng the period spent on remand thereby occasionlng miscarriage of Justice.

## Representation

At the hearing of the Appeal, the appellant was represented by Ms Agnes Natukunda on State Brief, while the respondent was represented by Mr. Sam Oola Senior Assistant DPP. Both parties proceeded by way of written submissions.

## Submissions for the Appellant

Counsel for the appellant faulted the learned trial judge for sentencing the appellant to 20 years' imprisonment without deducting the period the appellant had spent on remand. Counsel submitted that the sentence was as such rendered illegal. Counsel

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cited the case of; Rwabugande Moses SCCA No. 25 of 2O14 for proposition that the period spent on remand ought to be taken into account while sentencing the appellant. Lastly the appellant prayed that the sentence of 20 years' imprisonment be substituted with an appropriate sentence of 18 years'9 months after deducting the 1 year 3 months spent on remand.

# Submissions for the Respondent

Counsel for the respondent in reply did concede that the learned trial judge while passing a sentence of 20 years'imprisonment against the appellant, did not specihcally take into account the period spent on remand. He argued that the learned trial judge ought to have deducted the period the appellant spent on remand. He relied on the decision of; Rwabugande Moses SCCA No. 25 of 2OL4

# Court's consideration

We have carefully taken into consideration the appellant's appeal, the submissions of counsel, laws, and judicial precedents referred to by counsel.

As a first appellate court, we are required to re-appraise all the evidence adduced at the trial and arrive at our own conclusions and draw inferences on questions of law and fact. We are mindful that we did not see the witnesses testify. Kifamunte Henry v Uganda SCCA No. 1O of L997, Pandya Vs R [195fl EA 336.

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The law that governs appellate courts while sentencing was discussed in Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2OO1 where court held rltat, "tlv oppellate court ls not to lnterfere wtth the sentence imposed bg a trlal cout't, uthlch lro,s exerclsed lts dlscretlon on sentence unless the exerclse of the dlsctetlon is such tttat it results ln the sentence lmposed to be manlfestly excessiue or so lout os to amount to a mlscarrlage of Justtce or where a trlql cour-t lgnores to conslder an lmportant matter or clrcum.gtdnces uhlch ought to be consldered uhlle passlng the sentence or uthere the sentence lmposed ls utrong ln princlple."

The appellant's counsel contended that the learned trial judge sentenced the appellant to 18 years' imprisonment without considering and deducting the period the appellant spent on remand. It was the submission of the respondent in response to the appellant's averment that the trial judge in his judgement while sentencing did not deduct the lyear and 3 months the appellant spent on remand.

It is well settled that; Rwabugande (supraf reflects what is provided for in Article 23(8) of the 1995 Constitution of the Republic of Uganda and enunciates the principle that a trial judge is required to compute the period that the convict spent in lawful custody before conviction and deduct it from the sentence that the trial judge passes.

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In the instant case, while sentencing the appellant, the learned tria-l Judge stated as follows;

"The conuict committed the crime of murder in tle most serious ciranmstances such heinous acts need to be curbed. The conuict took the law into his own hands

I lnue weighed the grauity of the offence against ttLe mitigating factors adduced by Mr. Agaba, counsel for conuict. All factors taken in the cirqtmstances of this case, the conuict is sentenced to TWENTY YEARS impisonments."

We carefully considered the wording used by the learned trial Judge. It is evident that the learned trial judge put into consideration the mitigating factors of the case. It is also evident that the learned trial judge did not consider the time the appellant spent on remand.

When sentencing, courts are mandated to consider the period spent on remand. Article 23(8) of the Constitution of the Republic of Uganda 1995, as amended stipulates that,

\*Where a person ls convlcted and sentenced to a tenn of lmpllsonment for an offence, ang perlod. he or she spends tn lautful custodg ln respect of the offence before the completlon of hls or her trlal shall be tcken lnto qccount ln lmposlng the tertn of lmprtsonment."

Principle 15 of the Sentencing Guidelines provides that.

"(1) The court shall take into account any period spent on remand in determining an appropriate sentence.

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(2) The court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account."

In the case of; Rwabugande Moses v Uganda SCCA No.25 of 2014, court held;

uThat a sentence arrlaed at ulthout Wtilng lnto conslderatlon tlme spent on remand utas lllegal for tallure to complg wlth ma.ndatory constltrttlonal proulslons. Court furthcr emphaslzed that the consld.erqtlon ought to be a m;o;thematlcal deductlon conslderlng the Jact thot tltc tlmc spent on remand is speclfically known."

Given that the learned trial Judge did not deduct the period that the appellant had spent on remand, we find the sentence illegal for violating Article 23 (8) of the Constitution of the Republic of Uganda and thus accordingly set it aside.

ln the premise, we exercise the powers of this Court granted under the provisions of Section 11 of the Judicature Act. Having taken into account the mitigating and aggravating factors that were presented to the tria-l Court, we hereby sentence the appellant to 20 years imprisonment. We deduct the period of 1 year and 3 months, the appellant spent on remand. The appellant is to serve 18 years and 9 months'imprisonment, from the date of conviction which was 30th day of October, 20 1 2.

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We so order

Dated at this...... $\frac{4}{4}$ $...2024$ $...$ day of. HON. LADY JUSTICE EVA LUSWATA HON. JUSTICE JOHN OSCAR KIHIKA HON. JUSTICE ASA MUGENYI