[2023] UGCA 370

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO.041 OF 2016

*(Coram: R. Buteera, DCJ; C. Bamugemereire & E. Luswata, JJA)*

## DAGIRIRA MUHAMMED I::::::::::::::::::::::::::::::::::::::::::::: appf^t ^t ant

### VERSUS

# UGANDA I:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::; RESPONDENT

10 *(Appeal against decision of the High Court of Uganda at Masaka, John Eudes Keiterima, J, dated 23rd January 2017 in Criminal Case No. 066 of 2016)*

## JUDGMENT OF THE COURT

#### 15 INTRODUCTION

The appellant was convicted of the offence of Murder contrary to Sections 188 & 189 of the Penal Code Act, Cap 120, and sentenced to 18 years' imprisonment.

# Brief Facts

- 20 It was the prosecution's case that on 30th/08/2015 during a karaoke at Micodeo pub situated at Kigamba Kasijjagirwa Kasubi, a fight erupted. Kasozi Vincent who was standing ⁵ meters from the fight stated that he saw the appellant emerge from the pub, pick a club/ big stick and advanced it on the deceased's head forcing him to fall down. - 25 30 Muwonge Richard stated that on that day, he moved out of the pub with the deceased and the appellant appeared with a club and hit the deceased on the head, forcing him on the ground. The appellant started chasing Muwonge, but he ran for his life. Yiga Martin tried to perform mouth to mouth first aid on the deceased, who was lying helplessly outside the pub but to no vail as Kajubi had already lost his life.

A post mortem report revealed that the cause of death was severe open head injuries.

The appellant was arrested and his medical examination revealed that he was mentally stable and of apparent age of 24 years.

- 5 10 The appellant was convicted on his own plea of guilty and sentenced to 18 years' imprisonment. Being dissatisfied with the decision, he filed this appeal against sentence only. He prayed that the appeal is allowed, the decision of the lower court be set aside and that the sentence of 18 years' imprisonment be set aside and that the appellant be given a lesser sentence.

# Ground of Appeal

That the learned trial Judge erred in law and in fact when he sentenced the appellant to 18 years' imprisonment which sentence was harsh and excessive in the circumstances.

15 Representation

> At the hearing of the Appeal, the appellant was represented by Ms. Brenda Ainomugisha, on state brief, while the respondent was represented by Ms. Happiness Ainebyoona, Chief State Attorney, from the Office of the Director of Public Prosecutions.

#### 20 Case for the appellant

Counsel for the appellant sought leave of court to appeal against sentence only. She submitted that the learned trial Judge ignored all the other mitigating factors in favor of the appellant except for the time spent on remand hence reaching a harsh and excessive sentence.

25 Counsel submitted that from the record of proceedings, the appellant was arrested on 6lh day of December 2015 and sentenced on the 23rd day of January 2017, which meant that the appellant had spent ¹ year, ¹ month and 11 days in custody.

#### Case for t •le respondent

C° for the respondent submitted that the learned trial Judge having *correr* i^-\*ttly considered both the aggravating and mitigating factors, as was stated by counsel for the appellant, he rightly sentenced the appellant to 18 years' imprisonment.

Counsel argued that it is well settled that sentence is a discretion of the trial Judge and that an appellate court will only interfere with the sentence imposed if it is evident that the sentence was illegal or harsh or manifestly excessive as to amount to an injustice. She cited Kyalimpa Edward v Uganda; SCCA No. 10 of 1995, to that effect.

Regarding consistency, counsel submitted that each case has to be considered on its own merit. She pointed out that the learned trial Judge considered both the mitigating and aggravating factors and in his discretion, he was lenient not to sentence the appellant to the maximum

15 sentence of death. She thus invited this Court not to interfere with the sentence imposed on the appellant but upholds the same and disallows the appeal.

In application of the principle of consistency, counsel invited this Court to consider the case of Kasaija Daudi v Uganda; C. A. C A. No. 128 of 2008, where this Court reduced a sentence of life imprisonment to 18 years' imprisonment for murder.

She also cited Kamya Abdallah v Uganda; SCCA No. 24 of 2015 where a sentence of 30 years' imprisonment was reduced to 18 years' imprisonment for the offence of murder.

25 In Akbar Godi v Uganda; SCCA No. 3 of 2013, this Court confirmed a sentence of 25 years' imprisonment for murder.

Counsel also referred to Nalule Sarah v Uganda; CACA No. 003 of 2013 and Turyahika Joseph v Uganda; C. A. C. A No. 327 of 2014, where this Court after reviewing numerous decisions of the Supreme Court and the Court of Appeal had this to say on sentencing:

"Although the circumstances of each case may certainly differ, this court has now established a range within which sentences fall. The term of imprisonment for murder of a single person ranges between 20 to 30 years' imprisonment, in exceptional circumstances may be higher or lower."

She submitted that a sentence of 18 years' imprisonment for murder was lenient in view of the sentencing ranges set by this Court and the Supreme Court.

# Court's consideration

10 The law that governs appellate courts in regard to sentencing is well settled. In Kamya Johnson v Uganda; SCCA No. 16 of 2000, the Supreme Court held:

> "It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently. (Emphasis ours)"

Article 23 (8) of the Constitution provides:

"(8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment."

Court has interpreted 'taken into account' to mean mathematical deduction of the period the convicted person spent on remand prior to the conviction. See Rwabugande Moses v Uganda; Criminal Appeal No. 25 of 2014 (2016) UGSC 8.

The Supreme Court clarified the applicability of the decision in Rwabugande (supra) in the case of Abelle Asuman v Uganda; SC Criminal Appeal No. 066 of 2016 [2018], when it stated:

> "In its Judgment this Court made it clear that it was departing from its earlier decisions in Kizito Senkula vs. Uganda SCCA No.24/2001; Kabuye Senvawo vs. Uganda SCCA No.2 of 2002; Katende Ahamed vs. Uganda SCCA No.6 of 2004 and Bukenya Joseph vs. Uganda SCCA No. 17 of 2010 which held that "taking into consideration of the time spent on remand does not necessitate a sentencing Court to apply a mathematical formula."

> This Court and the Courts below before the decision in Rwabugande (supra) were following the law as it was in the previous decisions above quoted since that was the law then.

> After the Court's decision in the Rwabugande case this Court and the Courts below have to follow the position of the law as stated in Rwabugande (supra)." (Sic)

20 In this case, the learned trial Judge passed the disputed sentence on 23/ 01/ 2017. While sentencing the appellant, he stated as follows:

> *"I have heard both aggravating and mitigating factors ... I have considered the period the convict spend on remand and I will sentence him to 18 years imprisonment...''* (Sic)

25 From the above excerpt, it is evident that the learned trial Judge did not deduct the period the appellant had spent on remand. By the time the sentence was imposed, the interpretation of Article 23 (8) of the Constitution was established to mean that considering the remand period required a mathematical deduction of the period spent on remand prior to the conviction. In this case, failure to deduct the remand period, rendered

the sentence illegal for not complying with Article 23 (8) of the Constitution. We hereby set it aside.

We shall invoke the powers of this Court under Section 11 of the Judicature Act, to sentence the appellant afresh. The appellant was sentenced to 18 years' imprisonment. Prior to his conviction, he had spent ¹ year, ¹ month and 11 days on remand. Given that the appellant pleaded guilty and did not waste court's time, we find the sentence of 18 years to be appropriate. We shall sentence him to 18 years' imprisonment from which we deduct ¹ year, ^I month and 11 days. The appellant shall serve 16 years, 11 months

and 20 days' imprisonment from the date of conviction on 23/ 01/ 2017.

We so order.

day of....... ²⁰²³ Dated at Masaka this

15 Richard Buteera Deputy Justice

20 Catherine'Bamugemereire Justice \of Appeal

Eva' K. Luswat Justice ofzAppeal

25