[2024] UGCA 183

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT ARUA

*Coram: Kiryabwire, Mulyagonja & Luswata, JJA*

# **CRIMINAL APPEAL NO 329 OF 2020**

#### **BETWEEN**

### IRANYA CHRITOPHER OBULEJO ::::::::::::::::::::::::::::::::::::

#### AND

#### UGANDA :::::::::::::::::::::::::::::::::::

(Appeal against the decision of Stephen Mubiru, J delivered at Adjumani on 9^th March 2018 in High Court Criminal Session Case No. 121 of 2017)

# **Introduction**

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The appellant was indicted for the offence of murder contrary to section 188 and 189 of the Penal Code Act, Cap 120. After a full trial, he was convicted and sentenced to 23 years and 5 months' imprisonment.

#### **Background** 15

The background to this appeal as ascertained from the record of the trial court was that on 16^th July 2016, the appellant murdered his wife, Asienzo Grace. The facts that were accepted by the trial court were that on that day, the appellant come home from the trading centre where he had been

drinking alcohol at around 1:00 pm. He found his wife who was preparing 20 lunch with her daughter. The wife had a saucepan in her hands which the appellant grabbed and hit with on her nose. A fight ensued in which the appellant threw her onto the ground and repeatedly stepped on her

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*Iranya Christopher Obulejo v. Uganda*

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stomach. All efforts to restrain the appellant proved futile as he threatened violence to his mother in law and brother who were trying to stop him. The wife who was then pregnant sustained an injury on her spleen and passed away.

5 In his defence, the appellant stated that he had taken some Valium (sleeping pills) in the morning and only woke up later to find himself in police custody. That he had no memory of having committed the crime. The trial judge found that the offence of murder was proved against the appellant beyond reasonable doubt and convicted him. He sentenced him to 23 years and 5 months' imprisonment. 10

Dissatisfied with the sentence, the appellant now appeals on one ground as follows:

1. That the learned tial judge erred in law and fact uhen he sentenced the appellant to 23 gears and 5 months' impisonment which sentence is harsh and excessiue in the circumstances of the case.

# Representation

When the appeal came up for hearing on 21"t November,2023, the appellant was represented by Mr. Kodili Isaac Jurugo holding the brief for Mr. Aciga Richard on State Brief. Mr Sam Oola, a Senior Assistant Director of Public Prosecutions from the Office of the Director of Public Prosecutions represented the respondent. The appellant was present in court.

Counsel for the appellant prayed for leave to appeal against sentence only and his prayer was granted. The written submissions that had earlier been

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Iranga Christopher Obulejo u. Uganda ²

filed by counsel for both parties were adopted as their final arguments and it is upon them that this appeal has been determined.

# Submissions of Counsel

Counsel for the appellant referred to **Ssekandi Muhammed v. Uganda** Court of Appeal Criminal Appeal No. 364 of 2016 and submitted that $\mathsf{S}$ this court has the power to interfere with the sentence imposed by the trial court because it was harsh and manifestly excessive. He restated the mitigating factors that were advanced for and by the Appellant, at page 19 of the record of appeal, and explained that the appellant's children were now more or less total orphans following the death of their mother and 10 subsequent imprisonment of their father. He asserted that the sentence imposed was harsh and excessive as it deprived the appellant's children of parental guidance and care.

Counsel further referred to Ssekandi Muhammed v. Uganda (supra) in support of his submission that the trial judge did not follow the principle 15 of parity and consistency while sentencing the appellant. He further referred to Wabwire Idd v. Uganda, CACA No. 708 of 2015 and Dembere Samson v. Uganda, CACA No. 470 of 2015 where sentences of life imprisonment were reduced to 18 years' imprisonment and 15 years and 10 months' imprisonment, respectively, by this court. He further pointed 20 out that in Ssekandi Muhammed v. Uganda (supra) a sentence of 50 years' imprisonment was reduced to 15 years, 7 months and 24 days' imprisonment. He explained that these cases had similar facts to those in the instant case and if the trial judge had followed the principle of parity

and consistency, he would not have imposed the harsh and excessive 25 sentence that he did.

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*Iranya Christopher Obulejo v. Uganda* $\mathfrak{S}$

Counsel went on to submit that the cases of Bukenya v. Uganda, CACA No. 51 of 2OO7, Sunday v. Uganda, CACA No. 1O3 of 2006 and Byaruhanga v. Uganda, CACA No. L44 of 2OO7, which the trial judge relied upon to come to the sentence he deemed approriate, had circumstances that were totally different from those in the instant case. That in those cases, there was use of weapons and the offence was premeditated while in the instant case, the tria-l judge observed that there was viciousness and reckless disregard of life rather than pre-meditation and planning. Counsel further submitted that in the circumstances, the trial judge ought to have imposed a more lenient sentence. He then prayed that the sentence be set aside and replaced with a more lenient one of 15 years' imprisonment.

In reply, Mr. Oola for the respondent referred to the decision in Rwabugande Moses v Uganda; SCCA No.25 of 2OL4 where severa-l cases were cited holding that an appropriate sentence is a matter for the discretion of the trial court. He also pointed out the principles relating to the jurisdiction of this court to interfere with sentences imposed by the trial court. 15

Counsel further submitted that the trial judge meticulously considered a-11 the aggravating and mitigating factors and having done so, he deemed it appropriate to reduce the sentence of 3O years' imprisonment that he deemed appropriate to 25 years. That the judge went ahead to deduct the period the appellant spent on remand thereby arriving at a sentence of 23 years and 5 months' imprisonment. 20

Counsel further submitted that the trial judge rightly observed that the appellant's conduct demonstrated viciousness and reckless and utter 25

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Ironga Chistopher Obulejo u. Uganda 4

disregard for the life of his own wife. That the Appellant acted in a brutal and callous manner towards her by hitting her with a saucepzrn, repeatedly stepping on her abdomen yet she was pregnant and thereby damaging her spleen. That he had even attempted to strangle her and he threatened to beat his mother in law and his brother in the process. Counsel asserted

that the incident traumatised the children who watched what the appellant did to their mother.

Counsel then referred to Tugume Moses & Machombero v. Uganda, CACA lto. 475 of 2O16, where the appellant murdered his wife in brutal circumstances and this court handed him a final sentence of 27 and a half years' imprisonment. Further, that in Mboneigaba James v. Uganda, SCCA No. 27 of 2OL7, the appellant murdered his mother using a panga the Supreme Court imposed a final sentence of 21 years' imprisonment. It was therefore his submission that the sentence imposed by the trial judge in the instant case was within the range of sentences passed by this court and the Supreme Court in cases of this nature. He prayed that the sentence be upheld and that the appeal be dismissed. 10 15

# Determination

It is a well settled principle that this court is not to interiere with the sentence imposed by the trial court exercising its discretion unless the sentence is illegal or this Court is convinced that the trial court did not consider an important matter or circumstarce which ought to be considered when passing sentence. Further, that the court may interfere with the sentence if it is shown that it was manifestly excessive or so low as to amount to arr injustice. (See Livingstone Kakooza v. Uganda; SCCA No. 17 of 1993.) 20 25

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Iranga Chistopher Obulejo u. Uganda ⁵

It is evident from the record, at pages 34-35, that the trial judge considered the principles laid down in the Constitution (Sentencing Guidelines for the Courts of Judicature) (Practice) Directions, 2013. He further took into account the sentencing practice at the time by reviewing a number of authorities where convicts were sentenced for similar offences to the one that was committed by the appellant. He then sentenced that appellant as follows:

"From the facts of this case, the convict's conduct demonstrated a viciousness and reckless disregard of life rather than pre-meditation and planning. He committed it in a callous, brutal manner within the context of 10 *domestic violence. In light of these aggravating factors, I consider a starting* point of thirty years, imprisonment. I have nevertheless considered the *mitigation made in his allocutus, most especially his family responsibilities* and being relatively young in terms of age and thereby reduce the sentence to twenty-five years' imprisonment. In accordance with Article 23 (s) of the 15 *constitution and Regulation 15 (2) of the Constitution (sentencing Guidelines* for Courts of Judicature) (Practice) Directions, 2013, to the effect that the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account, I note that he has been in custody since 21^st July, 2016. I hereby take it into account 20 and set off one year and seven months as the period he has already spent on remand. I therefore sentence him to a term of imprisonment of twentu*three years (23) years and five (5) months to be served starting today."*

The appellant's sole complaint seems to be that the trial judge did not observe the principles of parity and consistency when he imposed his 25 sentence upon him. However, we observed that he did so when he considered sentences that had been imposed for the crime of murder by this court and the Supreme Court.

The argument that the sentence was harsh and excessive in the circumstances of the case does not now way.<br> **Aharikundira v. Uganda [2018] UGSC 49,** the Supreme Court explained<br> Iranya Christopher Obulejo v. Uganda 6 30

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what the expression "harsh and excessive in the circumstances of the case" means when it held that:

"There is a high threshold to be met for an appellate court to intervene with" the sentence handed down by a trial judge on grounds of it being manifestly excessive. Sentencing is not a mechanical process but a matter of judicial discretion therefore perfect uniformity is hardly possible. The key word is "manifestly excessive". An appellate court will only intervene where the sentence imposed exceeds the permissible range or sentence variation.

In order to fit within this description, counsel for the appellant cited sentences on the lower spectrum imposed on offenders convicted for 10 murder, without stating the circumstances that led to their conviction. On the other hand, counsel for the respondent cited sentences that were higher than those referred to by counsel for the appellant.

We will not engage in the exercise of reviewing previous sentences imposed for similar offenses in this case because we did not find any error 15 occasioned by the trial judge while sentencing the appellant. He demonstrated that he followed the principles of sentencing to the letter. In view of the fact that he also demonstrated that he considered the principles of parity and consistency with sentences handed down for similar offences

by the courts, which the Appellant alleged the trial Judge had not, we see 20 no reason to disturb the sentence. We are of the view that it was appropriate in the circumstances of this case; it was neither harsh nor manifestly excessive, as counsel for the appellant would have us believe.

In the end result, this appeal fails and it is hereby dismissed. The appellant shall continue to serve the sentence of 23 years and 5 months that was 25 imposed upon him by the trial court.

We so order.

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Doran M.<br>Suk

*Iranya Christopher Obulejo v. Uganda* $\overline{7}$

Dated this Day of $\cdot$ 2024.

Geoffrey Kiryabwire JUSTICE OF APPEAL

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Irene Mulyagonja

JUSTICE OF APPEAL

15 Eva K. Luswata

JUSTICE OF APPEAL 20