[2024] UGCA 125

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT MBALE

fCoram: Egonda-Ntende, Gashirabake & Kihifu, JJA)

## CRIMINAL APPEAL NO.08 of 2017

(Arising from High Court Criminal Session Case No. 194 of 2013 at Mbale)

### BETWEEN

Gidudu Henry :-:Appellant

## AND

Ugand6:: Respondent

(An appeal ogainst the Judgement of the High Court of Uganda fWangutusi, JJ at Mbale delivered on l91h December 2016)

### JUDGMENT OF THE COURT

### lntroduction

- tl] This is an appeal, with the leave of this court, against sentence only. The appellant was convicted of murder contrary to sections 188 and 189 of the Penal Code Act. The particulars were that on 3'd May 2010 at Bunaseke village in Sironko District unlawfully murdered Nadunga Catherine. He was sentenced to 25 years' imprisonment. - 12] The appellant has appealed against the sentence on the sole ground that,

'That the learned trial judge erred in law and fact when he sentenced the appellant to 25 years of imprisonment without considering the sentencing guidelines.

- The respondent supported the decision of the court below and opposed the $[3]$ appeal. - $[4]$ The appellant was represented by Ms. Kanyango Agnes while the respondent was represented by Mr. Innocent Aleto, Senior State Attorney, in the Office of the Director of Public Prosecutions. Both counsel filed written submissions in the matter upon which this court has proceeded to consider this appeal.

## Submission by counsel

- Counsel for the appellant referred to Fr. Narsensio Begumisa & Ors v Eric $[5]$ Tibebaga [2001-2005] 2 HCB 34 for the duty of the first appellate court. Counsel for the appellant submitted that the trial judge imposed a sentence of 25 years' imprisonment against the appellant but did not deduct the period of 5 years the appellant spent on remand. She argued that the sentence imposed by the trial judge against the appellant is contrary to Article $23(8)$ of the Constitution and Guideline 15 of the Constitution (sentencing Guidelines of courts of judicature) (Practice) Direction, 2013. She submitted that the provisions were echoed in the case of Rwabugande Moses V Uganda [2017] UGSC 8 where it was held that the period spent on remand ought to be deducted from the sentence and not just be considered, as was done in this case. - Counsel for the appellant submitted that while imposing a sentence, the trial $[6]$ judge is inclined to consider the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013. She contended that the trial judge considered the period the appellant had spent on remand. However, it is not reflected in the sentence order. - Counsel for the appellant prayed that we exercise our powers under Section $[7]$ 11 of the judicature Act Cap 13 to quash the sentence and substitute it with 20 years' imprisonment and deduct the period of 5 years' imprisonment spent on remand. - In reply counsel for the respondent contended that the sentencing regime at $[8]$ the time did not require the trial judge to arithmetically deduct the period the appellant spent on remand. He referred to Kizito Senkula v Uganda [2002] UGSC 36. He contended that the appellant was sentenced on 19^th December, 2016 and the requirement to apply the arithmetic formula to deduct the period

spent on remand commenced with the decision in Rwabugande Moses v Uganda (Supra) delivered on 3^rd March, 2017. She contended that the Supreme court in Byamukama Herbert v Uganda Supreme Court Criminal Appeal No. 21 of 2017 (unreported) stated that Rwabugande which was inapplicable in the case of Byamukama where the appellant had been convicted in December 2016. He submitted that Supreme Court emphasized that for a case to be cited as a precedent, it ought to have been decided earlier before the matter at hand.

- $[9]$ Relying on Nashimolo Paul Kibolo v Uganda [2020] UGSC 24, Beinomugisha Samuel v Uganda [2023] UGCA 211 he submitted that the Rwabugande decision does not have retrospective effect on sentences passed prior to $3^rd$ March 2017 like the instant case. - $[10]$ She submitted that in Beinomugisha Samuel v Uganda (supra), the appellant was sentenced to 30 years' imprisonment on 23^rd October, 2013 for murder. On appeal to this court, the sentence of 30 years' imprisonment imposed against the appellant was upheld and held that the legal regime before Rwabugande did not mandate the trial judge to arithmetically deduct the period spent on remand. - [11] He submitted that it would amount to miscarriage of justice if the learned trial judge is faulted for applying the law since arithmetical deduction was not applicable at the time of the sentence was imposed against the appellant in the present case. He further submitted that if court follows the position in Rwabugande, it would be applying the law retrospectively, which in itself would make a bad precedent. - [12] He prayed that we find no reason to interference with the sentence imposed by the trial court since the period spent on remand was taken into account as required by the sentencing regime at the time.

# **Analysis**

The law as to when an appellate court may interfere with a sentence of the $[13]$ trial court is well settled. Ordinarily an appellate court will not interfere with a sentence of the trial court, unless the trial court acted on some wrong principle, overlooked a material fact, or the sentence was manifestly harsh and excessive in the circumstances of the case. See Livingstone Kakooza v Uganda [l994lUGSC l7 Bernard Kiwalabye v Usanda SC Criminal Appeal No. 143 of 2001 (unreported); and K),alimpa Edward v Uganda [2003.l UCCA E

## Brief facts of the case

- [4] The appellant and deceased were married and lived together at Buchungulo Village, Buwetye Parish in Sironko District. The marriage was characterised by domestic violence exerted by the appellant on the deceased which forced the deceased to desert her marital home and retum to her aunt's place, Muduwa Betty (PWl). On 3'd May, 2010, at about 7:00pm Gamusha Paul (PW2) was at a shop at Bamasola Trading Centre, when the appellant passed by him and 5 minutes later the deceased came crying white hotding her stomach. Gamusha Paul (PW2) noticed that she had been stabbed. Gamusha Paul (PW2) ran towards where the deceased was coming from, and saw the appellant running towards the banana plantation. Gamusha Paul (PW2 ) returned to the deceased and took her to a nearby police station before rushing herto Budadiri Health Centre lV. The deceased told Muduwa Betty (PWl) and Gamusha Paul (PW2) that the appellant had stabbed her with a pocket knife, after failing to convince her to retum to her marital home. The deceased died on 12'h May 2010. The post-mortem report revealed that the cause of death was septic shock. The appetlant disappeared until 20th November 2012 when he was arrested and charged with murder of the deceased. He was convicted and sentenced to 25 years' imprisonment. - lt 5l We shall set out in full the sentencing order and reasons therefore as made in the court below hereunder.

#### 'Sentence and reason

Accused is a first offender. He has been on remand for ⁵ years. He is a parent of two children who need care. These are mitigating factors. These factors not withstanding a life was lost. lt was not a single assault. lt was an act ofviolence that had been perpetrated in the home of the accused. Women are human beings and they deserve their rights of safety. They should not be punching bags as the accused had killed the deceased. I take into account that the accused has been on remand for five years which period I discount from the sentence. Having considered all the surrounding circumstances and the need to dissuade people such as the accused from domestic violence, I found 25 years' punishment appropriate. to which he is sentenced. Signed

#### .ludge.'

- [6] It is clear from the foregoing remarks of the trial court that the leamed trial Judge took into account the period the appellant had spent on remand and had in fact deducted it from the sentence that he was to impose. The leamed judge stated that he had would, 'discount' the period of 5 years that the appellant had spent on remand. Discount ordinarily means a deduction from the usual cost of something. In effect we would find that the learned trial Judge complied with Rwabugande v Uganda (supra) much as it was not ^a requirement at the time the sentence was imposed. - [7] The appellant was 27 years old at the time this offence was committed, and the leamed trial judge did not take into account this youthful condition of the appellant, which, in our view, was a mitigating circumstance. The appellant has appealed only against the sentence, an indication, that he accepts his guilt, and is remorseful in the circumstances. Considering the foregoing, we shall interfere with the sentence imposed and reduce it to 20 years' imprisonment.

#### Decision

[8] We allow the appeal. We accordingly order the appellant to serve a term of 20 years' imprisonment from lgrr'December 2016, the date of conviction.

Dated, signed, and delivered this &4lay of

rick Ego a-Ntende Justice of Appeal

C nstopher Gashira ake Justice of Appeal

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