[2024] UGCA 253

THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MBARARA

(Coram: Hon. Eva K. Luswata, JA, Hon. Oscar Kihika, JA, Hon. Asa Mugenyi, JA)

## CRIMINAL APPEAL NO. 0353 OF 2014

$\mathsf{S}$

#### **BETWEEN**

### KAHONAHO NASASIRA DAVID:::::::::::::::::::::::::::::::::::

#### AND

#### **UGANDA :::::::::::::::::::::::::::::::::::**

#### 15

(Appeal from the Judgment of the High Court sitting at Mbarara in Criminal Session Case No. 013 of 2009 by Justice Andrew Bashaija delivered on 20^th March, 2013)

#### JUDGMENT OF THE COURT

### **Introduction**

The Appellant in this appeal, was charged, convicted and $1$ $20$ sentenced to 33 years' imprisonment for the offence of murder contrary to Section 188 and 189 of the Penal Code Act, Cap. 120.

#### **Brief Facts**

The facts as discerned from the record are that on the $2^{nd}$ day of $2|$ September 2007, at Ngoro village in Bushenyi District, the Appellant murdered his father, a one Muzigaba Runkuratire Stanley (the deceased).

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3l On that day, the deceased and other family members went to pray for a sick person at a church in Kashekya using a lamp as their source of light. At about 8:00 pm, the Appellant appeared with a panga, and demanded why they had taken a sick person to Church. He briefly moved out and when he returned, he cut the deceased on the neck, head and other parts after which he fled the scene. Those present raised an alarm and the matter was reported to Police at Katerera. The Appellant was arrested in May 2008. At the trial, the Appellant pleaded not guilty to the offence. He was tried, convicted and sentenced as stated. He appealed the decision on two grounds: - 10 15 5

> i) That the learned tial Judge erred in law and fact u.then he sentenced the Appellant to an illegal sentence of 33 gears without deducting ttre remand peiod thereby occasioning a mis canriag e of justice.

ii) Th.e learned trial Judge erred in lana and fact uthen he sentenced the Appellant to 33 gears' imprbonment, a sentence uhich is undulg harsh and excessiue in th.e circumstances. 20

# 25 Representation

41 At the hearing, the Appellant was represented by Ms. Agnes Natukunda, while the Respondent was represented by Mr. Sam Oola, a Senior Assistant Director of Public Prosecutions. Both counsel filed written submissions and list of authorities which we have adopted and considered in deciding the appeal.

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# s Submissions for the Appellant

## Ground One

5] Ms. Natukunda, submitted that the learned trial Judge never considered the period the Appellant had spent on remand while sentencing leading to an illegal sentence. Thus, counsel citing Article 23(8) of the Constitution, and Guideline No. 15 of the sentencing Guidelines for Courts of Judicaturel (Practicef Directions) 2013 (the sentencing Guidelines) invited this Court to deduct the time the Appellant had spent on remand which is four years and 10 months. Counsel noted further that although this matter was decided before the Supreme Court decision of Rwabugande Moses vs Uganda l2OL7l UGSC 8 (3ta March 20l7l, the provisions of Article 28(3) of the Constitution, law and authority pertained and as such, an arithmetic deduction ought to be done in order that a certainty other than ambiguity is achieved.

# Ground TVo

6l Counsel for the Appellant also contended that the sentence was harsh and manifestly excessive in the circumstances. She contended that there was no proof that the murder was committed by the Appellant and that the learned trial Judge showed bias during the trial. Counsel then submitted that although crimes are never identical, Courts are enjoined to ensure consistency. That the principle of consistency is one way the appellant courts can set down principles upon which lower courts can follow when executing the sentencing function. She cited several previous

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- ⁵ decisions for example the case of Aharikundira Yustina vs Uganda, SC Criminal Appeal No. 27 of 2015, Patrick Anywar and Anor vs Uganda, CA Criminal Appeal No. 166 of 2OO9, and Manige Lamu vs Uganda, CA Criminal Appeal No. 384 of 2017, where sentencing ranges from 19 to 2 1 years' imprisonment for murder were imposed. 10 - 7l In conclusion, counsel prayed that this appeal be allowed and an alternative reduced sentence be imposed.

# Submissions for the Respondent

- 8l The Respondent opposed the appeal. For ground one ofthe appea,l, Mr. Oola acknowledged the discretional powers of the Appellate Court when sitting in appeal. He in that regard cited the decision of Kiwalabye Bernard vs Uganda SC Criminal Appeal No. 143 of 2OO1 which was cited with approval in Karisa Moses vs Uganda SC Criminal Appeal No. 23 of 2OL6. - 9l Mr. Oola was in agreement with his learned friend that the period the Appellant had spent on remand was not deducted by the Iearned trial Judge as required by Article 23(8) of the Constitution resulting into an illegal sentence. Counsel prayed we exercise our powers under section I 1 of the Judicature Act, to correct the error. 20 25 - 10] Counsel likewise alluded to the consistency principle by citing several authorities in which somewhat similar facts, where murder was caused with a panga, were considered. He cited for example, Kaddu Kavulu Lawrence vs Uganda, SC Criminal

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⁵ Appeal No. 72 of 2O18, where a sentence of death was reduced to manslaughter. Also the case of Nakhokho Phillips vs Uganda, CA Criminal Appeal No. 135 of 2O2O, where a sentence of 33 years and 1 month was maintained against an Appellant who cut his victim by inflicting deep cut wounds and sticking a knife in their back. Counsel thereby considered a sentence of 33 years as appropriate in the circumstances of this case and prayed that we maintain it, but deduct the remand period. 10

# Determination of Court

## Ground One and TVo

15 20 111 The appea-l is against sentence only. We agree with both counsel on their submissions that the settled legal position is that an appellate court's powers to intervene and set aside a sentence is limited. The decisions provided by Appellant's counsel are instructive on this point. Further, this Court in the decision of Olar Joseph Peter vs Uganda, CA Criminal Appeal No. 30 of 2OlO, that cited with approval the earlier decision of Kiwalabye Bernard versus Uganda (supral, it was held as follows:

> " The appellate court is not to interfere u.ith a sentence imposed bg the tial court u.there the trial court exercised its discretion on sentence, unless the exercise of that discretion is such that it results in the sentence imposed to be manifestlg excessiue or so lou-t as to amount to a miscarrtage of justice, or tuhere the tial court ignores to consider an important matter or circumstance u.thich ought to be considered while passing the sentence or where the sentence imposed is wrong in pinciple. "

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- 5 10 15 12] We have confirmed from the record that after considering the aggravating and mitigating factors, the trial Judge decided on a sentence of 33 years' imprisonment. He neither took into account the remand period nor deduced it from that sentence. Both counsel opine that it was an illegal sentence, and we agree. The sentence contravenes Article 23(8)3 and a host of decided cases, including the well followed decision of Kizito Senkula vs Uganda, SC Criminal Appeal No. 24 of 2OO1, which discussed the correct procedure to follow during that particular sentencing regime. We accordingly set aside the sentence of 33 years' imprisonment on grounds of illegality. - 13] Having done so, we invoke Section 1l of the Judicature Act, Cap. 13 to decide on what we believe is an appropriate sentence in the circumstances. We shall be guided in our decision by the consistency principle in a host of decided cases and Guideline 15 of the Sentencing Guidelines which provides that: - 1) TLe Court shall take into account ang peiod spent on remand in determining an appropiate sentence. - 2) The court shall deduct the peiod spent on remand from the sentence considered appropriate afier all factors haue been taken into account. - 141 We proceed to consider a few cases with similarly decided facts. The two authorities provided by Respondent's counsel and already noted, are a good statutory point.

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- In Sam Oyita vs Uganda, CA criminal Appeal No.3O7 of 2OlO, a death sentence was substituted with 25 years' imprisonment for an Appellant who murdered his brother over a land dispute. In Wabwire Idd vs Uganda, CA Criminal Appeal No. 7O8 of 2O15, this Court reduced sentence of life imprisonment to 18 years and in Atiku Lino vs Uganda, CA Criminal Appeal No 4l ol 2OO9, an Appellant who attacked and killed his victim with a bow and arrows was stented to 2O years' imprisonment. 10 - 151 The facts of this case a.re that the Appellant hacked his father to death using a panga. It was a selfish, unprovoked and brutal murder only because the Appellant did not agree with the deceased's decision to pray for a sick person other than take them to hospital. The murder is made even more horrific because it was a son attacking his father infront of their family members and neighbours. Not only was a right to life violated, the incident must have left long lasting trauma on all concerned. We do consider what was presented that the Appellant is a family man with children and will forever live to regret this act. However, we are persuaded that the aggravating factors appear to be more prominent in this case. 15 - 161 That said, we consider that at 24 years, the Appellant committed the offence when he was still reasonably young. In line with what is provided in Guideline 21(e) of the Sentencing Guidelines, this Court has previously considered youthful age as a fact that ought to be considered as a mitigating factor in sentencing. See for example Adrama Wilfred & Another vs Uganda, CA Criminal 25 30

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⁵ Appeal No. 316/2017 and Ulega S. Muzungu vs Uganda, CA Criminal Appeal No. 325 of 2019. We shall take that factor into consideration as we decide on a sentence.

For the above reasons, we consider a sentence of 25 years' imprisonment appropriate in the circumstances of this case. From that sentence. We are bound by the law, and we do deduct a period of four years and 10 months that the Appellant had spent on remand before his conviction. He shall accordingly serve a term of 20 years and 2 months'imprisonment with effect from the date of conviction.

- ¹⁵ 17] Having decided that the sentence was illegal, there is no reason to consider ground two of the appeal. - 18] Accordingly, this appea-l succeeds.

| | .)/.-<br>Dated at Mbarara this IJ<br>y of September 2024. | |----|-----------------------------------------------------------| | 20 | | | | K. Lus<br>Hon.<br>a | | | Justice of<br>eal | | | V | | | hika<br>Hon. | | | ppe{<br>Justice of | | 30 | | | | genyi<br>Hon. Dr<br>As | | | | | | Justice ofAppeal |